Filed 9/19/13 P. v. Vale CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037358
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. FF930718)

         v.

JESSE JOHN VALE,

         Defendant and Appellant.



         Defendant Jesse John Vale was convicted, by jury trial, of carjacking (Pen. Code,
§ 215)1 and second degree robbery (§§ 211, 212.5, subd. (c)). He admitted that he had
four prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12), that he
had three prior serious felony convictions (§ 667, subd. (a)), and that he had served a
prior prison term (§ 667.5, subd. (a)). He was sentenced to an aggregate prison term of
42 years to life for the carjacking, with a concurrent aggregate term of 40 years to life for
the robbery.
         On appeal, defendant contends the trial court erroneously denied his
Batson/Wheeler motion, which contested the prosecutor’s use of peremptory challenges
to remove two prospective jurors with Hispanic surnames. (See Batson v. Kentucky
(1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) For

         1
             All further statutory references are to the Penal Code unless stated otherwise.
the reasons stated below, we disagree with defendant’s claim and will, therefore, affirm
the judgment.

                                    BACKGROUND
      As the facts of defendant’s offenses are not relevant to the issue he raises on
appeal, we provide a brief overview based on the probation report’s summary of the
offense.
      On May 21, 2009, Elijah Pipkin reported that he had been the victim of a
carjacking and a robbery. Pipkin had given a woman named Sophia a ride to a Gilroy
residence. At the residence, defendant got into Pipkin’s vehicle and took the keys from
the ignition. Defendant punched Pipkin and ordered him out of the car. Pipkin complied.
Defendant then asked Pipkin for his necklace, bracelet, sunglasses, and wallet. Pipkin
gave defendant the necklace, bracelet, sunglasses, and $80 cash from the wallet.
Defendant tossed Pipkin’s car keys to a second male, who got into Pipkin’s vehicle and
drove away with Sophia. Defendant drove away in another vehicle.

                                     DISCUSSION
      As noted above, defendant raises one claim on appeal: that the trial court
erroneously denied his Batson/Wheeler motion, which contested the prosecutor’s use of
peremptory challenges to remove two prospective jurors with Hispanic surnames.
      A.        Proceedings Below
      Voir dire of prospective jurors began on February 23, 2011. The first group of
18 prospective jurors included two male prospective jurors with the surnames Perez and
Espinoza.
                1.   Prospective Juror Perez
      Perez stated that he was a custodian, that he lived with his parents, and that he had
siblings in high school and college. He had no children, and he had never served on a
jury. He had lived in Morgan Hill for 13 years.


                                            2
       The prosecutor asked Perez where he had gone to high school and where his sister
attended school. The prosecutor also asked Perez about his job history. Perez indicated
he had been doing custodial work for about five months. The prosecutor asked, “What
did you do before that?” Perez responded, “Go to school,” referring to his high school.
The prosecutor asked, “Did you just finish up there last year?” The record is unclear as
to whether Perez responded to the question – the reporter’s transcript reflects that his
response was “High school,” but it appears this was a continuation of his response to the
prosecutor’s prior question. In response to further questions, Perez testified that after
high school, he lived at home and “[t]ried to get a job.”
              2.     Prospective Juror Espinoza
       Espinoza stated that he worked for an energy office. He lived with his wife,
daughter, and son-in-law. He had five grandchildren, had lived in Gilroy for six years,
and had never served on a jury.
       After the trial court asked the prospective jurors whether they had any relatives
or friends who had been accused of committing a violent crime, Espinoza stated that his
nephew was “in for murder right now.” He explained that his nephew was incarcerated
at Corcoran State Prison and that the incident had occurred in Tulare County in 2005.
Espinoza indicated he had not communicated with his nephew during or after the
prosecution. When asked whether he had any reason to believe the case had been
handled inappropriately, Espinoza replied, “Well, I think he’s still going to court for it
right now, so that’s as far as I can answer on that.” He did not believe that the incident
would affect his ability to be impartial.
       The prosecutor’s only question to Espinoza was a request that he clarify “the
relationship between you and the person who is incarcerated.” After Espinoza stated,
“That’s my nephew,” the prosecutor asked him no further questions.




                                              3
              3.     Peremptory Challenges
       The prosecutor used his first peremptory challenge to excuse Perez. Defendant
used his first peremptory challenge to excuse another prospective juror with a Hispanic
surname. After the prosecutor used his third peremptory challenge to excuse Espinoza,
there was an unreported bench conference.
       At the next break, the trial court asked if trial counsel wanted to put anything on
the record. Trial counsel asserted that “a jury of [defendant’s] peers is just gone.” Trial
counsel indicated he was making a Batson/Wheeler motion and also challenging the
composition of the jury venire as not representative of a fair cross-section of the
community. (See gen., Taylor v. Louisiana (1975) 419 U.S. 522, 528 [“the selection of a
petit jury from a representative cross section of the community is an essential component
of the Sixth Amendment right to a jury trial”].)
       The trial court agreed that the prosecution had exercised peremptory challenges
against two prospective jurors who “appeared to be of Hispanic background.” However,
the trial court did not “believe a primary foundational showing was made that the use of
the peremptories was in a constitutionally invalid way.” It ruled, “Therefore, I’m going
to deny the [Batson/Wheeler] motion.” The trial court stated that the People were not
required “to state their reasons for the exercise of the challenges” but invited the
prosecutor to “make a record nevertheless.”
       The prosecutor gave three reasons for exercising a peremptory challenge as to
Perez. The prosecutor first referred to Perez’s age and work history: “He was a younger
juror. He had almost no life experience. He is a custodian who’s only worked at that job
for five months. He came from Sobrato High School, and he made it sound like he
started working as a custodian right after that; but then he went on to explain after further
questioning that actually he finished up with high school two years earlier and really
hasn’t been doing anything except living at home in the meantime presumably looking
for a job. I think he said he was looking for a job and apparently found one as a

                                              4
custodian. So to me a younger person like that living at home with his parents who’s
only . . . had one job after high school, which I don’t know if he finished, does not have
much life experience to sit on a jury.”
       The prosecutor’s next reason for exercising a peremptory challenge as to Perez
concerned his attire: “Another thing I noticed was his attire. This juror was wearing long
shorts. Hanging out of the pocket of one of the shorts pockets was a red San Francisco
49ers lanyard, which is the type of lanyard you see being handed out in San Jose by the
bail bonds people as a free gift. That’s what I associated with that. He had long white
tube socks on pulled up to his knees and Nike Cortez sneakers on, which I know to be
attire of somebody who is a gang member or gang associate or gang affiliate or at least is
dressing in a similar way to that. And I should point out that the red color on the lanyard
immediately alerted me to the fact that along with the Nike Cortez sneakers this man who
did appear to be Hispanic and had a Hispanic sur name [sic] might be gang affiliated.”
       The prosecutor’s third reason for exercising a peremptory challenge as to Perez
concerned his manner of responding to the trial court’s questions: “His – one of the
biggest problems I had with him – I don’t know if the Court caught this or counsel caught
this – was that this juror never answered out loud unless he was directly asked a question.
As to all the group questions he kept his mouth shut. Sometimes he would nod or shake
his head. Everyone else at the Court’s urging answered out loud. This gentleman did
not. In fact, I wrote down that he didn’t answer out loud when the Court asked that
general question of do you agree to volunteer and so that attorneys can follow up will you
volunteer this information, and he didn’t answer. Then when asked is there any reason
you cannot be fair as a group question he had no response. The man didn’t even shake
his head or nod his head. No response whatsoever, which I took to be disturbing
especially with the need for people to be forthright. He was the one person when I asked
the question of all 17 jurors if they would hold me to the standard of beyond a reasonable



                                             5
doubt, no [more] no less, he was the one person who hesitated before acknowledging that
he would do that. That caused me concern.”
       The prosecutor also gave three reasons why he exercised a peremptory challenge
as to Espinoza. The first reason concerned his appearance: “He was an older gentleman.
He was also Hispanic with a Hispanic sur name [sic]. What I noticed about his
appearance was that he had an earring in his left ear. It was a stud earring; that cause[d]
me concern because it seemed to be sort of an unconventional look for someone of his
age. He had a tattoo in the webbing between his thumb and forefinger in his left hand. It
was faded dark-blue ink, and it appeared to be either homemade or something that you
would get in prison. It obviously wasn’t discussed, and I didn’t ask him about it; but he
had a tattoo in the webbing of his finger, and to me that’s something like a prison tattoo
or a gang tattoo. I am not [naïve]. I know that lots of people have tattoos. But this did
not look like it was professionally done, and the location of it is similar to gang tattoos
I’ve seen in my work as a prosecutor.”
       The prosecutor’s second reason for exercising a peremptory challenge as to
Espinoza concerned his nephew’s murder conviction: “The biggest problem with him
was that he has [a] relative, a nephew, who has been convicted of murder out of this
county and is in Corcoran State Prison for it. Apparently it’s on appeal because he said
he’s still going to court for it, but if the nephew is in prison obviously there was a
conviction.”
       The prosecutor’s third reason for exercising a peremptory challenge as to Espinoza
involved his reaction to something another prospective juror said during voir dire:
“When – he did one other thing that bothered me. Juror Number 18 who the court
excused later; she was the female writer who had arthritis problems. She made some
comment that she was attempted to be carjacked, and the comment was in fact the
defendant looked like one of the guys or, you know, he appeared similar appearance to
the people who did this to her. And it didn’t come out very artfully. But the one visible

                                              6
reaction I saw of the panel was that [Espinoza], . . . he just shook his head. He put his
head down and shook his head; and I took that to mean a sign of disapproval, that he
didn’t like her response, he didn’t like her generalizing cross-racially about another race.
And I just couldn’t see the two of them working together. It caused me some concern
and I wrote it down.”
       The prosecutor pointed out that he had not exercised a peremptory challenge to a
prospective juror with the last name Velasco, who was “a young Hispanic man.” He
called Velasco “a fine juror” who had “some at least life experience” and who had been
“forthcoming with his answers.” The prosecutor noted that this prospective juror had
been challenged by the defense, and that the defense had also excused a female Hispanic
prospective juror who the prosecutor intended to leave on the panel. The prosecutor also
pointed out that the panel, at that time, still included two Hispanic prospective jurors.
       The trial court asked trial counsel if he wanted to respond. Trial counsel
responded to only one of the prosecutor’s statements, calling it “preposterous” that Perez
would be “classified as a gangster because he wears a Bad Boys key chain.” However,
trial counsel stated, “I respect the District Attorney for what reasons he has for doing
what he did.”
       Trial counsel then referred to his complaint about the jury venire, arguing “we do
not have a proportionate ratio of people.” The prosecutor responded, arguing that there
was no “legal basis” for that challenge. The trial court stated, “The objection is noted.
The objection is overruled.”
       Jury selection then continued, and the seated jury ultimately contained four female
jurors with Hispanic surnames.2




       2
       Pursuant to the Attorney General’s request, we ordered the record on appeal
augmented to include the unredacted list of juror names. The list was filed under seal.

                                              7
         B.     Analysis
         “Both the federal and state Constitutions prohibit any advocate’s use of
peremptory challenges to exclude prospective jurors based on race. [Citations.]”
(People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix), citing Batson, supra, 476 U.S. 79,
and Wheeler, supra, 22 Cal.3d 258.)
         When the defense raises a challenge to the prosecutor’s conduct, “[t]he Batson
three-step inquiry is well established. First, the trial court must determine whether the
defendant has made a prima facie showing that the prosecutor exercised a peremptory
challenge based on race. Second, if the showing is made, the burden shifts to the
prosecutor to demonstrate that the challenges were exercised for a race-neutral reason.
Third, the court determines whether the defendant has proven purposeful discrimination.
The ultimate burden of persuasion regarding racial motivation rests with, and never shifts
from, the opponent of the strike. [Citation.] The three-step procedure also applies to
state constitutional claims. [Citations.]” (Lenix, supra, 44 Cal.4th at pp. 612-613.)
                1.     Prima Facie Showing – Mootness
         Defendant contends that we should skip the first step of the Batson inquiry
because it is moot. According to defendant, “the prosecutor gave reasons for the two
peremptory challenges, and the trial court ruled on the ultimate question posed by the
objection. Therefore, the preliminary question of whether there was a prima facie case is
moot.”
         We disagree that the prima facie showing issue is moot in this case. “[A] trial
court’s request that the prosecutor provide reasons for his or her exercise of a peremptory
challenge is not an implicit finding the defendant has established a prima facie case, and
does not moot the issue, in every instance.” (People v. Taylor (2010) 48 Cal.4th 574, 612
(Taylor).)
         The issue of whether the defendant made a prima facie showing is moot where the
prosecutor provides reasons for the peremptory challenges and the trial court “has ruled

                                              8
on the ultimate question of intentional discrimination.” (Hernandez v. New York (1991)
500 U.S. 352, 359 (Hernandez); see also People v. Elliott (2012) 53 Cal.4th 535, 560-
561; People v. Mills (2010) 48 Cal.4th 158, 174 [issue was moot where trial court ruled
that defendant failed to make a prima facie showing of group bias but “also passed
judgment on the prosecutor’s actual reasons for the peremptory challenges”].)
       “But when, as here, the trial court states that it does not believe a prima facie case
has been made, and then invites the prosecution to justify its challenges for purposes of
completing the record on appeal, the question whether a prima facie case has been made
is not mooted, nor is a finding of a prima facie showing implied. [Citation.]” (People v.
Welch (1999) 20 Cal.4th 701, 746, emphasis added.) Our Supreme Court has
“encouraged trial courts to ask prosecutors to give explanations for contested peremptory
challenges, even in the absence of a prima facie showing” but has “emphasize[d] that if a
court ultimately concludes that a prima facie showing has not been made, the request for
and provision of explanations does not convert a first-stage Wheeler/Batson case into a
third-stage case.” (People v. Howard (2008) 42 Cal.4th 1000, 1020 (Howard).)
       In this case, the trial court ruled that defendant failed to make a prima facie
showing that the prosecutor used his peremptory challenges “in a constitutionally invalid
way.” The trial court then invited the prosecutor to “make a record,” but it did not
evaluate the prosecutor’s stated reasons for the peremptory challenges and never “ruled
on the ultimate question of intentional discrimination.” (Hernandez, supra, 500 U.S. at
p. 359; see Taylor, supra, 48 Cal.4th at p. 612 [prima facie showing issue was not moot
where trial court impliedly found no prima facie showing and “denied the Wheeler
motion without comment” after the prosecutor stated reasons for the challenges].) Thus,
the issue of whether defendant made a prima facie showing that the prosecutor exercised
peremptory challenges based on race is not moot.




                                              9
              2.     Prima Facie Showing – Analysis
       In reviewing the trial court’s determination that defendant failed to make the
requisite prima facie showing for a Batson/Wheeler motion, we apply a deferential
standard of review, “considering only whether substantial evidence supports [the trial
court’s] conclusions. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341
(Bonilla).)
       “[A] defendant satisfies the requirements of Batson’s first step ‘by producing
evidence sufficient to permit the trial judge to draw an inference that discrimination has
occurred.’ [Citations.] The defendant ‘should make as complete a record of the
circumstances as is feasible.’ [Citation.]” (Taylor, supra, 48 Cal.4th at p. 614.) In
Taylor, the court reviewed “the type of evidence that may be particularly useful regarding
this inquiry.” (Id. at p. 615.) “[I]t is relevant whether the record shows that the
prosecutor ‘ “ ‘struck most or all of the members of the identified group from the venire,
or has used a disproportionate number of his peremptories against the group.’ ” ’
[Citation.] Also significant is whether the prosecutor failed to engage the prospective
jurors ‘ “ ‘in more than desultory voir dire, or indeed to ask them any questions at all.’ ” ’
[Citation.] Although the defendant need not be a member of the excluded group in order
to claim discriminatory excusals under Wheeler, it is relevant ‘ “ ‘if he is, and especially
if in addition his alleged victim is a member of the group to which the majority of the
remaining jurors belong.’ ” ’ [Citation.]” (Ibid.)
       “When, as here, ‘a trial court denied a [Batson/Wheeler] motion because it finds
no prima facie case of group bias was established, the reviewing court considers the
entire record of voir dire. [Citation.] “If the record ‘suggests grounds upon which the
prosecutor might reasonably have challenged’ the jurors in question, we affirm.” ’
[Citations.]” (People v. Panah (2005) 35 Cal.4th 395, 439 (Panah).)
       After the prosecutor excused prospective jurors Perez and Espinoza, three
prospective jurors with Hispanic surnames remained on the panel; two were still on the

                                             10
panel later, when the Batson/Wheeler motion was discussed. Further, a significant
number of prospective jurors with Hispanic surnames still remained in the jury pool, and
the final jury included four jurors with Hispanic surnames. Thus, the prosecutor did not
strike “ ‘ “ ‘most or all of the members of the identified group from the venire.’ ” ’ ”
(Taylor, supra, 48 Cal.4th at p. 615; see People v. Blacksher (2011) 52 Cal.4th 769, 801
[no prima facie showing where, at the time of the defendant’s Batson/Wheeler motion,
there were still two African-American jurors on the panel and the final jury included
six African-American jurors].)
       The prosecutor also had not “ ‘ “ ‘used a disproportionate number of his
peremptories against the group.’ ” ’ ” (Taylor, supra, 48 Cal.4th at p. 615.) At the time
defendant raised the Batson/Wheeler claim, the prosecutor had only exercised three of
his 20 peremptory challenges. As defendant acknowledges, the prosecutor did not
continue to exercise peremptory challenges to Hispanic-surnamed prospective jurors at
the same two-out-of-three rate: he ultimately used eight of his 16 peremptory challenges
against prospective jurors with Hispanic surnames, while the defense used eight of its
20 peremptory challenges against prospective jurors with Hispanic surnames.3
       Finally, the prosecutor asked both Perez and Espinoza questions about the issues
he was concerned about – that is, he engaged them “ ‘ “ ‘in more than desultory voir
dire.’ ” ’ ” (Taylor, supra, 48 Cal.4th at p. 615.) The prosecutor asked a series of
questions about Perez’s work, school, and family, then challenged Perez primarily
because of his lack of “life experience.” Although the prosecutor asked Espinoza only
one question, it did relate to one of the issues he was concerned about: the fact that one
of Espinoza’s relatives was serving a prison term.




       3
         Two of the prospective jurors excused by the defense had hyphenated surnames
and, in each case, only one of the two hyphenated names was Hispanic.

                                             11
       In addition, the record here “ ‘ “ ‘suggests grounds upon which the prosecutor
might reasonably have challenged’ the jurors in question.” ’ ” (Panah, supra, 35 Cal.4th
at p. 439.) In reviewing the record, we note that defendant did not challenge the
prosecutor’s physical description of Espinoza or his description of Espinoza’s reaction to
the other prospective juror’s statements on voir dire. Defendant also apparently
concurred in the prosecutor’s description of Perez’s clothing and demeanor; he disputed
only the significance of Perez’s key chain. We also note that the trial court did not
contradict the prosecutor’s descriptions of these prospective jurors. The fact that “neither
the trial court nor defense counsel below contradicted the prosecutor’s account of any of
the challenged jurors’ demeanor or manner of responding to his questions[] suggest[s] the
prosecutor’s description was accurate.” (People v. Adanandus (2007) 157 Cal.App.4th
496, 510.)
       Perez was a younger juror with limited life experience, which “is a race-neutral
explanation” for a peremptory challenge. (People v. Perez (1994) 29 Cal.App.4th 1313,
1328.) The prosecutor could also validly challenge Perez because much of his attire
appeared to be similar to what a gang member would wear. (See Wheeler, supra, 22
Cal.3d at p. 275 [prosecutor may “fear bias” if prospective juror’s “clothes or hair length
suggest an unconventional life-style”].) Finally, Perez’s failure to respond to group
questions was a race-neutral reason. (See Howard, supra, 42 Cal.4th at p. 1019 [“An
advocate may legitimately be concerned about a prospective juror who will not answer
questions.”]; People v. Ward (2005) 36 Cal.4th 186, 202 (Ward) [prospective juror’s
“body language” and demeanor can support a peremptory challenge].)
       As for Espinoza, a family member’s involvement in the criminal justice system is
a race-neutral explanation, even if the prospective juror avers that he or she can put that
experience aside. (People v. Avila (2006) 38 Cal.4th 491, 554-555.) Espinoza’s tattoos
and jewelry were also legitimate grounds for his challenge. (See Ward, supra, 36 Cal.4th
at p. 202; Wheeler, supra, 22 Cal.3d at p. 275.) Likewise, the prosecutor could validly

                                             12
challenge Espinoza after he shook his head disapprovingly during another prospective
juror’s voir dire. (See Lenix, supra, 44 Cal.4th at p. 613 [a prospective juror may be
excused based upon facial expressions or gestures]; Ward, supra, 36 Cal.4th at p. 203
[a prospective juror may be excused base on the fact that he or she “would not fit in”
with the other jurors].)
       In sum, on this record, substantial evidence supports the trial court’s determination
that defendant failed to make the requisite prima facie showing for a Batson/Wheeler
motion, in that “defendant did not meet his burden of raising an inference of
discrimination.” (People v. Bell (2007) 40 Cal.4th 582, 600; see Bonilla, supra, 41
Cal.4th at p. 341.)




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                                  DISPOSITION
     The judgment is affirmed.




                                 ___________________________________________
                                 BAMATTRE-MANOUKIAN, J.




WE CONCUR:




________________________________
ELIA, ACTING P.J.




________________________________
MÁRQUEZ, J.




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