ALDRICH, J.
A jury convicted defendants and appellants Carlos Anguiano and Jack James Arizmendi of carjacking and first degree robbery. During voir dire of prospective jurors, the prosecutor excused four Hispanic women. Defense counsel made Batson/Wheeler motions,
Around 11:00 p.m. on January 22, 2008, Su Situ parked his car in the garage of his Chinatown apartment building. Situ was walking to his apartment when he saw Anguiano and Arizmendi, both of whom had guns. Situ didn't speak English, but he understood defendants' demand for money. Arizmendi kicked Situ and hit him on the head with the gun. Anguiano took Situ's car keys and cellphone and left in Situ's car. Arizmendi left in a black car.
Situ gave a description of his car and license plate number to the police, who soon saw a car matching its description on a freeway near Chinatown. Police pursued the car off the freeway. Anguiano, the driver, and Arizmendi, the passenger, got out of the car and ran. Both were eventually apprehended. The next morning, officers found two guns in the areas in which Arizmendi and Anguiano fled, but fingerprints could not be lifted from them.
Situ identified Arizmendi and Anguiano at field showups.
The People's gang expert, Officer Tyler Fox, testified that Dogtown is a Hispanic gang with approximately 100 members. Dogtown does not specialize in a certain crime; instead gang members commit "crimes as petty as misdemeanor vandalism all the way up to homicide." Gang members also commit robberies and carjackings and use the cars to commit drive-bys. Based on Arizmendi's admission to another officer and on his tattoos (which were all over his body, including his face), Arizmendi, in Officer Fox's opinion, was an active Dogtown member.
When Anguiano was taken into custody for this crime, he admitted to Detective Lopez that he was a member of the gang. Based on that admission and on Anguiano's tattoos (which included "Dogtown" across his shoulders), in Officer Fox's opinion, Anguiano was also a Dogtown gang member. In Officer Fox's opinion, the crimes committed in this case benefitted Dogtown because the stolen car would allow the gang to commit other crimes, and the crimes intimidated and created fear within the community. Committing the crimes elevated the defendants' status in the gang.
Trial was by jury. On April 10, 2009, the jury found Anguiano guilty of count 1, carjacking (Pen. Code, § 215, subd. (a));
On June 26, 2009, the trial court sentenced Anguiano, on count 1, to 25 years to life plus 10 years for the gun-use enhancement, and on count 3, to 25 years to life plus 5 years for a prior conviction under section 667, subdivision (a)(1). The sentence on count 2 was imposed and stayed under section 654.
The court sentenced Arizmendi to the high term of nine years on count 1. The court imposed and stayed under section 654 the high term of six years on count 2.
Defendants focus on the third element of a Wheeler/Batson motion, contending that the trial court failed to adequately investigate the prosecutor's reasons for challenging Hispanic female jurors.
Voir dire elicited the following information about prospective Jurors Nos. 9, 13, 15, and 19.
Juror No. 9 was married with no children. She was a marketing account executive and her husband was a restaurateur.
Juror No. 13 taught preschool children and was single. The juror had never served on a jury before.
Juror No. 15 was an administrative bank analyst, unmarried with two adult sons. The juror had never before served on a jury.
Juror No. 19, an assistant manager for transportation, was single with two minor children. Her daughter's father had been a gang member, and he was killed in a gang-related shooting. A few of her cousins were also gang members. One cousin was convicted of robbing a vehicle and shooting, and another cousin was convicted of a drug-related crime. One cousin had been shot two weeks before, and the juror's uncle also was killed just five months before. The juror claimed to have no "particular feelings" about gangs.
The People exercised three of its first four challenges to Jurors Nos. 9/6341, 13/6225, and 15/7875.
Similarly, Juror No. 15 mentioned youthful mistakes. The juror also had acquaintances who were gang members, which she hadn't disclosed earlier.
The prosecutor didn't think that Juror No. 9 was forthcoming with her answers, and the prosecutor couldn't establish a "rapport" with her. The prosecutor added that she didn't realize the juror was Hispanic, because she had blond hair. The trial court said it also didn't realize she was Hispanic. The trial court denied the motion.
The prosecutor's next challenge was to Juror No. 19.
The state and federal Constitutions prohibit using peremptory challenges to remove prospective jurors based solely on group bias, including race. (Batson v. Kentucky, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Our United States Supreme Court has "reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant's are made. `First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citations.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." [Citation.]'" (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 and quoting Johnson v. California, supra, 545 U.S. at p. 168.)
If a prima facie case is made, and the State offers a race-neutral justification for the challenges, then "`the trial court "must make `a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily. . . .' [Citation.]"' [Citation.] `[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor's race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.' [Citation.] Inquiry by the trial court is not even required. [Citation.] `All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.' [Citation.] A reason that makes no sense is nonetheless `sincere and legitimate' as long as it does not deny equal protection. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1100-1101;
Substantial evidence shows that the trial court here made a well-reasoned and sincere effort to evaluate the prosecutor's reasons for challenging Jurors Nos. 9, 13, 15, and 19. As to Juror No. 9, it is not even clear from the record that she was Hispanic. Neither the prosecutor nor the trial court thought she was Hispanic, and defense counsel was unsure, but he thought she spoke with a mid accent.
But even if we assume she was Hispanic, then the record supports the prosecutor's challenge to her on the stated grounds she wasn't forthcoming with her answers and the prosecutor couldn't establish a "rapport" with her. Few questions were initially asked of Juror No. 9: she agreed to apply the facts to the law; she wouldn't hold any dislike of defense counsel against the defendant; and she wouldn't judge defendants based on their tattoos but would keep an open mind. When defense counsel asked if she believed that someone could leave a gang, Juror No. 9 answered, "I'm sorry," and when the question was repeated, the juror still seemed not to understand the question. When the question was asked again, the juror then said that she believed a person could leave a gang. The prosecutor and Juror No. 9 also had this exchange:
Based on these answers to voir dire questions, defendants argue that Juror No. 9 was "forthcoming" with her answers, contrary to what the prosecutor said. It is not clear, however, what the prosecutor meant when she used that word to describe the juror's responses. The prosecutor may have meant that her answers seemed strained or limited in scope, not that the juror wouldn't answer the questions. This interpretation fits in with the prosecutor's additional explanation why she challenged Juror No. 9, that is, she couldn't establish a rapport with her. It is concededly difficult to point to a specific answer or point in the record to show that the prosecutor in fact was unable to establish a rapport with Juror No. 9, although the prosecutor did engage the juror enough to get a "sense" about her. In any event, the reasons why one prospective juror is kept and another is challenged often border on the ephemeral, yet do not violate Wheeler/Batson. Even a trivial reason, if genuine and neutral, can justify a challenge. (People v. Arias (1996) 13 Cal.4th 92, 136.) "A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons." (People v. Lenix, supra, 44 Cal.4th at p. 613, see also id. at p. 622 ["Myriad subtle nuances may shape [an answer], including attitude, attention, interest, body language, facial expression and eye contact"]; Snyder v. Louisiana (2008) 552 U.S. 472, 479 [nervousness cannot be shown from a cold record; that is why the trial judge's evaluation is given "`much deference'"].)
Next, the prosecutor explained that she challenged Juror No. 13, who taught preschool children, because she was young, expressed the opinion that young people make mistakes, and had trouble answering the trial court's questions about direct and circumstantial evidence. Substantial evidence supports that explanation. When the court asked the prospective jurors if they were all familiar with direct and circumstantial evidence, Juror No. 13 indicated that she was unfamiliar with those concepts, so the trial court explained them. The court then held up a pen and asked Juror No. 13 to look away. The court dropped the pen and asked the juror to look again. When the court asked her what happened, she answered that the pen had been dropped, and she'd deduced this based on the sound. When the court asked, "[w]hat else," the juror said she could see it drop in her peripheral vision. The court had to explain that she wasn't supposed to use her peripheral vision, and therefore redid the experiment. Based on this exchange, the prosecutor could legitimately conclude that Juror No. 13 had trouble grasping the distinction between direct and circumstantial evidence, given that she had a problem following the court's experiment.
The prosecutor could also have legitimately believed that Juror No. 13 would sympathize with the defendants because of their youth (at the time the crimes were committed, Arizmendi was 17 and Anguiano was 27). The juror taught preschool aged children; was, according to the prosecutor, young herself; and she said, with respect to tattoos, that the defendant was "a young kid" and indicated that people do things when they're young to express themselves without a thought to future consequences. Later, Juror No. 13 brought up a youth-related theme again: "I think that some, not all, some people that go into gangs they go into gangs because they don't get the—nutrients—they don't get those things from what they should be getting at home because of some problem with their parents. Maybe the dad is abusing the mom and maybe the mom is so weak, and she can't—she can't provide that nurturing to the children, so they go . . . somewhere that they can like—they can feel wanted." She agreed that it was wrong to commit crimes, but "maybe in their mentality because they're in the gang, other people might say, `You did a good job.' So they have all these encouragements, all these words of encouragement, which make them feel, wow, this is good. And the point of view of other people who are not in the gang, they're like well, then that's wrong. You know, they did do wrong." Defendants point out that despite Juror No. 13's focus on youthful mistakes and why they might happen, she nonetheless said that a person who commits a crime, regardless of their age, must be held accountable. That is not the point, however, for the purposes of voir dire. The prosecutor perceived, based on the juror's answers, a bias that the prosecutor, in her estimation, believed might not favor her case. The record supports that perception.
The prosecutor perceived a similar bias in Juror No. 15, and that is why she challenged Juror No. 15. When asked if she thought gangs were good for the community, Juror No. 15 said, "When I was growing up, I had some friends that were in gangs, or acquaintances, actually. But we grew up poor. It doesn't bother me. I try to see the person rather than the actual gang. [¶] And like Juror No. 13 said, you know, when you're young, you make a lot of mistakes. And sometimes it takes a lot of years before you come up and say, hey, I made a mistake." This supports the prosecutor's challenge, notwithstanding Juror No. 13's additional statement that she would feel comfortable holding a guilty person accountable, even if they were young.
Moreover, when the trial court asked the prospective jurors if any of them knew people who were gang members, Juror No. 15 did not raise her hand, although others did. It wasn't until the next day, during the conversation above, that the juror admitted knowing gang members. The juror's failure to reveal this important information when the court specifically asked about it justified the prosecutor's challenge.
Anguiano includes Juror No. 19 in his Wheeler/Batson motion. This juror had extensive ties to gang members: her cousins were gang members, one cousin had been recently shot, the juror's uncle had been recently killed, and the juror's daughter's father was a gang member who had been killed a year before in gang-related violence. This was a gang case and defendants were alleged to be members of the Dogtown gang. As the trial court indicated, it was hardly surprising that the prosecutor challenged Juror No. 19. Indeed, Arizmendi's counsel essentially conceded that there were valid grounds for the challenge when he admitted he wouldn't have made a Wheeler/Batson motion but for the fact that Juror No. 19 was one of four Hispanic women challenged.
Defendants also assert that the trial court employed an improper standard in evaluating the prosecutor's explanations for her challenges. They rely on this isolated comment the court made after the prosecutor justified her challenge to Juror No. 19: "I mean, if there is a rational basis for excusing her, even an irrational one really, but it's one that can be objectively demonstrated, then it's okay, basically, according to the case law, . . ." This comment in no way shows that the trial court failed to evaluate the prosecutor's justifications under the proper standard. First, it was one comment. Second, it was made in the context of defense counsel pointing out that Juror No. 19's gang ties might make her "negative to gangs." The court responded, correctly, that was not the point. The point was that the prosecutor provided a rational basis for the challenge supported by the record. The comment shows that the court understood its duties and fulfilled them.
Defendants next compare Jurors Nos. 8, 11, and 18 to challenged Jurors Nos. 15 and 19 to show that the prosecutor's reasons for challenging Jurors Nos. 15 and 19 were pretextual. Although defendant did not engage in a comparative analysis of jurors in the trial court, we must consider it on appeal if the record is adequate to permit the comparisons. (People v. Lenix, supra, 44 Cal.4th at p. 622.) Under a comparative analysis, we consider whether a prosecutor's reason for challenging, for example, a Hispanic panelist, applies just as well to an otherwise similar non-Hispanic panelist who was allowed to serve. (See Lenix, at p. 621.) If so, this is evidence tending to prove purposeful discrimination to be considered at Batson's third stage. (Ibid.) A comparative analysis, however, is "but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination." (Id. at p. 622; see also Miller-El v. Dretke (2005) 545 U.S. 231; Snyder v. Louisiana, supra, 552 U.S. 472.)
Here, Juror No. 8 had a few acquaintances who were gang members, but he tried to stay away from them. Juror No. 18 had a few friends who were gang members, but he didn't discuss their activities with them. Juror No. 11 had a cousin who was a gang member and was in prison. The juror did not communicate with him.
There was no comparison between the limited gang ties that Jurors Nos. 8, 11, and 18 had with Juror No. 19's extensive ones. Members of Juror No. 19's family were gang members, including her daughter's father. Members of Juror No. 19's family had been shot and killed, including her cousin and uncle. There was also no comparison between Juror No. 15 and Jurors Nos. 8, 11, and 18, although all of them expressed limited contact with gang members. The prosecutor excused Juror No. 15 because she said that people make mistakes when they're young. But she was also challenged because she failed to mention her gang acquaintances when first asked by the trial court, and not because she had gang acquaintances. Anguiano points out that Juror No. 21 also initially failed to tell the court that he knew people who'd joined gangs. Juror No. 21 mentioned a former friend who'd been killed, but the juror was "okay" with his death, stating that he "got what he deserved." This attitude toward gang members contrasts with Juror No. 15, who talked about youthful mistakes, which was an additional reason the prosecutor challenged her.
The record before us therefore supports the prosecutor's reasons for challenging Jurors Nos. 9, 13, 15, and 19. (Cf. People v. Silva (2001) 25 Cal.4th 345 [trial court failed to make an adequate inquiry into the prosecutor's reasons for excusing Hispanic jurors when the stated reasons were not supported by the answers given during voir dire].) No Wheeler/Batson violation occurred.
The trial court sentenced Arizmendi to the high term of nine years for the carjacking and to the high term of six years, stayed under section 654, for the robbery. The jury, however, acquitted him of gang and gun-use allegations. Arizmendi contends that the court abused its discretion in sentencing him to the high terms. We disagree.
A trial court's sentencing decision is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an `individualized consideration of the offense, the offender, and the public interest.' [Citation.]" (Ibid.) A trial court abuses its discretion if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. (Ibid.) "California law affords the trial court broad discretion to consider relevant evidence at sentencing. `[T]he court may consider the record in the case, the probation officer's reports, other reports including reports received pursuant to [s]ection 1203.3 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing.' (§ 1170, subd. (b).) The trial court may consider any `criteria reasonably related to the decision being made.' (Cal. Rules of Court, rule 4.408(a).) The court specifically is authorized to consider `the record in the case.' (§ 1170, subd. (b).) Nothing in the applicable statute or rules suggests that a trial court must ignore evidence related to the offense of which the defendant was convicted, merely because that evidence did not convince a jury that the defendant was guilty beyond a reasonable doubt of related offenses." (People v. Towne (2008) 44 Cal.4th 63, 85-86, fn. omitted.)
Here, Arizmendi's contention that the trial court abused its discretion in sentencing him to the high term focuses on various comments the court made. First, Arizmendi suggests that the court "irrationally" thought that the jury erred in finding the gun-use allegations not true. Contrary to this suggestion, the court meticulously recited the evidence at trial, including evidence that Arizmendi had a gun and hit the victim. This evidence made the court wonder "what evidence was presented during the course of the trial to justify a finding that he did not have a firearm. I think he got a tremendous break." "What I'm saying is: the unimpeached evidence, uncontradicted evidence shows that he did have a firearm, yet that is not reflected in the findings of the jury. So what the motivation of it, I agree, is just speculative. But one thing that is clear is that he did receive a break there. He was the only witness who testified as to what occurred in the subgarage, and the jurors believed him to a point where they rendered a verdict on all of the counts in favor of the People." But when defense counsel said it wasn't proper for the court to consider evidence of a firearm in sentencing, the court said it was just reciting the facts, which showed that Arizmendi and Anguiano acted together. There was no "irrational" thought process on the part of the court.
Second, Arizmendi takes the trial court's statement that "were it not for things progressing the way they did as opposed to the alternative, this could very well be a homicide case, a murder case" and paints it as an "irrational" basis for the high term. The court, however, wasn't citing this as a reason for the high term. The court was making a simple observation, in the context of noting that Arizmendi was a "likable" person and that these decisions were "not easy," that this was a serious case that could have easily been a murder.
Arizmendi takes one final comment out of context and cites it as another example of the trial court's "irrationality" in choosing the high term. The court noted that Arizmendi was in juvenile court in 2004 for a robbery committed when he was 14, and "but for, not quite two years difference, it could very well be used as a strike in this case to double his sentence." This statement was made in the context of discussing Arizmendi's youth and defense counsel's argument that Arizmendi had potential, that he was still developing, and therefore, he shouldn't be given a lengthy prison sentence. The court thus responded with the challenged statement to show that Arizmendi had committed serious crimes at an even younger age, potentially exposing himself to harsh sentencing.
Rather than basing its sentencing decision on "irrational" matters, the trial court found these circumstances in aggravation: The crimes involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; the victim was particularly vulnerable, given that he was in an isolated area at night; the manner in which the crime was carried out included planning, sophistication or professionalism in that the defendants entered the victim's garage with a getaway car; and each defendant engaged in violent conduct indicating a serious danger to society; defendants' prior convictions, as an adult or sustained petitions in juvenile delinquency proceedings, were numerous or of increasing seriousness. Notably, Arizmendi does not discuss these factors. Therefore, because we reject the notion that the court abused its discretion, we need not address Arizmendi's additional contention that the error denied him due process of law.
Arizmendi's final suggestion that his trial counsel was ineffective for failing to object to the imposition of the high term is meritless. His counsel asked for probation and argued for a low-or-midterm sentence, to which the court replied, "Are you seriously making that request?" In any event, the record shows that any additional objection to the high term would not have changed the outcome; hence, any omission was not prejudicial. (Strickland v. Washington (1984) 466 U.S. 668.)
The judgment is affirmed.
We concur:
KLEIN, P. J.
CROSKEY, J.
