                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    GABRIEL JOHN TORRES, Appellant.

                             No. 1 CA-CR 13-0707
                               FILED 09-04-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR 2012-157203-001
                The Honorable Karen A. Mullins, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele Ponce
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                            STATE V. TORRES
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge Maurice Portley and Judge Margaret H. Downie joined.


T H U M M A, Judge:

¶1            Defendant Gabriel John Torres appeals from his convictions
and resulting probation grants for resisting arrest and threatening or
intimidating a police officer, arguing the superior court improperly
denied his challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986) to
the State’s peremptory strike of a juror. Finding no error, Torres’ sentences
and probation grants are affirmed.

                FACTS1 AND PROCEDURAL HISTORY

¶2            In November 2012, Torres and others went to a restaurant to
drink and dance. A fight broke out and the police were called. When the
police arrived, Torres approached a police officer and made physical
contact with the officer from behind. Officers then took Torres to the
ground and arrested him. Although Torres claimed he was not resisting
arrest, the police officers stated Torres was flailing his arms. After being
arrested, Torres yelled at the police officers and threatened them and their
families. Torres was charged with three counts of aggravated assault, one
count of resisting arrest and one count of threatening or intimidating.

¶3          As relevant here, during jury selection, the State exercised a
peremptory strike of Juror 4, who Torres argued was Hispanic.2 Torres


1 The court views the facts “in the light most favorable to sustaining the
verdict, and resolve[s] all reasonable inferences against the defendant.”
State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997)
(citation omitted).

2 Although originally challenging the State’s peremptory strike of Juror 5
(the other potential juror Torres argued was Hispanic), in his reply on
appeal, Torres “withdraws that portion of the argument.” Accordingly,
this court considers Torres’ challenge to the peremptory strike of Juror 4.




                                     2
                             STATE V. TORRES
                            Decision of the Court

objected under Batson, claiming the strike was “based on nationality;”
Torres was Hispanic and the State struck the only remaining Hispanic on
the panel.

¶4            Given Torres’ objection, the superior court asked the State
for its reasons in exercising the strike. The State explained that it struck
Juror 4 because she had stated on her juror form that she was a cashier,
but during voir dire stated she was a cook, and thus the State was
“worried about her truthfulness.” The court analyzed its own notes and
the form Juror 4 had completed, and asked the State what it had written
down in its own notes. The court specifically noted that Juror 4 worked at
a fast food restaurant, and such employees “do multiple things.” After
considering the parties’ argument, the court denied Torres’ challenge to
the State’s peremptory strike of Juror 4.

¶5            After a five-day trial, the jury acquitted Torres of the
aggravated assault charges but found him guilty of resisting arrest and
threatening or intimidating. The court imposed concurrent one-year
probation terms for both convictions. From Torres’ timely appeal, this
court has jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and -4033(A)(1) (2014).3

                               DISCUSSION

¶6            Torres argues the superior court erred when it denied his
Batson challenge. This court defers “to the trial court’s findings of fact
unless clearly erroneous.” State v. Lucas, 199 Ariz. 366, 368 ¶ 6, 18 P.3d 160,
162 (App. 2001). The superior court’s application of law is reviewed de
novo. Id.

¶7            The Equal Protection clause of the Fourteenth Amendment
to the United States Constitution prohibits a party from exercising a
peremptory challenge to a potential juror in a racially discriminatory
manner. Batson, 476 U.S. at 96-98. The Batson analysis involves a three-step
test to determine whether a constitutional violation has occurred: (1) the
party opposing the strike must make a prima facie showing that the strike
was made on the basis of race; (2) if that showing is made, the party
exercising the strike must articulate a race-neutral explanation for the


3 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.



                                      3
                             STATE V. TORRES
                            Decision of the Court

strike and (3) if a race-neutral explanation is provided, the superior court
must decide whether the party challenging the strike has shown
purposeful racial discrimination. See, e.g., Purkett v. Elem, 514 U.S. 765, 767-
68 (1995) (citing cases); Lucas, 199 Ariz. at 368 ¶ 7, 18 P.3d at 162 (citing
cases).

¶8             As applied, steps one and two occurred and are not at issue.
Torres argues the superior court erred in ruling that he had not shown
purposeful racial discrimination. Torres correctly notes that this third step
requires the superior court to weigh and evaluate the credibility of the
State’s proffered explanation, including: (1) “the prosecutor’s demeanor,”
(2) “how reasonable, or how improbable, the explanations are” and (3)
“whether the proffered rationale has some basis in accepted trial
strategy.” Miller-El v. Cockrell, 537 U.S. 322, 324 (2003). The outcome of this
fact-intensive inquiry, which typically turns on an evaluation of
credibility, is entitled to great deference on appeal. State v. Rodarte, 173
Ariz. 331, 335–36, 842 P.2d 1344, 1348–49 (App. 1993) (citing Hernandez v.
New York, 500 U.S. 352, 364-65 (1991)).

¶9             The State offered a race-neutral reason as to why it struck
Juror 4, citing conflicting statements by her about her job responsibilities.
The superior court, considering the facts and circumstances including
credibility, accepted the race-neutral explanation the State provided. See
State v. Harris, 184 Ariz. 617, 619-20, 911 P.2d 623, 625-26 (App. 1995). “A
neutral explanation for a peremptory strike need not be coupled with
some form of objective verification.” Lucas, 199 Ariz. at 368 ¶ 9, 18 P.3d at
162 (citing State v. Eagle, 196 Ariz. 27, 30 ¶ 11, 992 P.2d 1122, 1125 (1998)).
Although Torres relies on Miller-El, the record in this case does not reflect
anything like the disparate questioning that occurred in that case. 537 U.S.
at 344-45. Torres also relies on Lucas, but in that case (unlike here), the
State offered both a race-neutral and an impermissible explanation for a
peremptory strike. 199 Ariz. at 369 ¶ 11, 18 P.3d at 163. Here, however, the
State’s explanation as to Juror 4 was arguably race-neutral; and thus under
the third Batson step, Torres had the burden to show purposeful racial
discrimination. Purkett, 514 U.S. at 767. On this record, and given the
deference owed to the superior court’s assessment of the facts, this court
finds no reversible error in the conclusion that Torres failed to meet his
burden. See State v. Roque, 213 Ariz. 193, 204 ¶ 15, 141 P.3d 368, 379 (2006)
(finding no error in allowing juror to be stricken); see also State v.
Bustamante, 229 Ariz. 256, 261 ¶ 17, 274 P.3d 526, 531 (App. 2012) (same).




                                       4
                        STATE V. TORRES
                       Decision of the Court

                         CONCLUSION

¶10         Torres’ convictions and resulting probation grants are
affirmed.




                               :gsh




                                5
