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People v. Rizo4/24/2002
n insufficient and granted a mistrial.
Selection began again with a new panel. The prosecutor excused three African-American panelists, Jurors A., Wo., and Wa. Defendants made another Wheeler motion. The court took judicial notice of the previous mistrial but this time found no prima facie case and denied the motion.
Defendants contend the court erred in finding no prima facie case. In so doing, they concede there were adequate grounds for excusing Jurors A. and Wo., but not Juror Wa.
Juror Wa. stated he was a forklift driver for Food 4 Less. He owned a firearm. He was divorced. He said his former wife worked for the DMV, but he did not know what she did.
Juror Wa. had a son living in Oakland but said he did not know what the son was doing. His other son was living with him and was not working. He also had two daughters. One worked at Pizza Hut, and the other was 11 years old.
Where, as here, the trial court finds the defendant has failed to make a prima facie showing of group bias, the reviewing court considers the entire record of voir dire to determine whether it suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question. If it does, the court affirms the trial court's ruling. (People v. Howard, supra, 1 Cal.4th at p. 1155.) The trial court's determination that no prima facie showing has been made is reviewed for substantial evidence. We accord particular deference to the trial court as fact finder, because of its opportunity to observe the participants at first hand. (People v. Jenkins (2000) 22 Cal.4th 900, 993-994.)
We cannot conclude the record shows no reasonable grounds on which the prosecutor could have excused Juror Wa. His firearm ownership could have tended to make him less concerned about defendants' weapon use in the present case. While that factor by itself may not have been enough to support a challenge, Juror Wa. also appeared not to be entirely forthcoming in providing information. The fact that, when asked what his former spouse and his son were doing, he responded he did not know was surprising and could have been considered a possible sign of lack of interest in the proceedings. The prosecutor several times emphasized he wanted jurors who would be committed to the proceedings, to avoid a hung jury.
As noted earlier, the Supreme Court has stated that a prosecutor is entitled to exercise a certain number of peremptory challenges simply on a "suspicion" that the juror will be unfavorable to his or her cause. (People v. Pinholster, supra, 1 Cal.4th 865, 914.) That court's opinion in People v. Howard, supra, 1 Cal.4th 1132 demonstrates that such a suspicion need not be supported by a clear probability of bias. In Howard, a murder case, one of the jurors excused by the prosecution described herself as a "housewife" but also was a nonpracticing registered nurse with a degree in sociology. The Howard court held that the juror's professional training was enough to suggest grounds upon which the prosecutor might reasonably have challenged her. (Id., at pp. 1155-1156.) Notably, the court made no specific finding that the juror's medical or sociology training likely would have affected her service on the jury. Rather, the suspicion that it might do so was enough.
This case differs from Howard in that the prosecutor in Howard questioned the juror about her training prior to excusing her, whereas here the prosecutor did not question Juror Wa. However, as explained earlier, the court significantly restricted attorney voir dire. In fact, the prosecutor several times asserted the time allowed was inadequate. Thus, the failure to question Juror Wa. did not suggest the
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