Filed 9/18/14 P. v. Straws CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication o r ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
ANTHONY STRAWS,
Defendant and Appellant. 2d Crim. No. B243293 (Super. Ct. No. BA394094) (Los Angeles County)

Anthony Straws appeals from the judgment entered after a jury convicted him of three counts of perjury based on false statements he had made in applications for a driver's license. (Pen. Code, § 118, subd. (a).) 1 Appellant admitted two prior prison terms (§ 667.5, subd. (b)) and one prior serious or violent felony conviction with in the meaning of
California's "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) He was sentenced to prison for 10 years. Appellant argues that the trial court erroneously denied his Wheeler-Batson motion. ( People v. Wheeler (1978) 22 Cal.3d 258 ( Wheeler ); Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] ( Batson ).) The motion contested the prosecutor's use of peremptory challenges to strike Hispan ic women from the jury. We affirm.
Wheeler-Batson Motion

1 All statutory references are to the Penal Code.2 "The applicable law is well settled. '[Under Wheeler, ] [a] prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias - that is, bias against 'members of an identif iable group distinguished on r acial, religious, ethnic, or similar grounds' - violates the right of a crim inal defendant to tria l by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. [Citations.] [2] [Under Batson, ] [s]uch a practic e also violates the defendant's right to equal protection under the Fourteenth Amendment. [Citations.] [¶] 'The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard trial courts should use when handling motions challenging peremptory strikes. "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, th e '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. ]" ' [Citations.]" ( People v. Zambrano (2007) 41 Cal.4th 1082, 1104, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Jury Selection After the prosecutor exercised her fifth peremptory challenge, appellant made a
Wheeler

- Batson motion. Defense counsel contended that "there's a prima facie showing" of "a systematic exclusion specifical ly of Hispanic women." Coun sel asserted that peremptory challenges had been exercised against three Hisp anic women - juror numbers 1, 8, and 21. Our Supreme Court has "assumed" th at "Hispanic women constitute a separate cognizable group for Wheeler/Batson purposes, distinct from both women generally and Hispanics generally." ( People v. Bonilla (2007) 41 Cal.4th 313, 344, & fn.

2 Wheeler was disapproved on another ground in Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 162 L.Ed.2d 129].3 14; accord, People v. Garceau (1993) 6 Cal.4th 140, 171, di sapproved on another ground in People v. Yeoman (2003) 31 Cal.4t h 93, 117-118.) The trial court said that it was "not finding . . . any prima facie showing," but it asked the prosecutor to respond to defense counsel's contention. 3 The prosecutor responded that "juror no. 1 . . . is not very highly educated . . . and I didn 't know if she would be a very smart juror." The trial court agreed that there were bona fide grounds for peremptorily challenging juror number 1. The court stat ed, "There's no doubt about it, no. 1 had life experience issues, you name it." Appellant did not object to th e court's statement. Juror number 1 initially said that she ha d no education, but then said that she had been to high
school. As to juror number 21, the prosecutor not ed that this juror had "stated that she has a friend who's been accused, and she's gone to support him." Juror number 21 said that, about six years earlier, she had gone "to cour t to support a friend" who had been charged with "drug smuggling." The case involved "a large amount" of drugs. Her friend was found guilty and is still in prison. As to juror number 8, the prosecutor stated that this juror "was the female who, at some point when the court was questioning her, started talking about ch ild support and that she'd been in court in regards to child support. That's a little concerning to me, that she's not a law-abiding citizen, that she --" The court interrupted and said, "Well, I couldn't tell on that answer whether she was seeking it or -- I got the feeling she was seeking child support . . . ." The prosecutor re plied, "Yeah. It just seems odd to me as to what the issues were in regards to that." Juro r number 8 said that she was a singl e parent with five children.
She worked as a sales clerk at Rite-Aid. When the court asked her if she had prior jury experience, she responded, "Yes, for child supp ort." But she then said that she had not

3 This was proper procedure. "Even where the tr ial court has not found a prima facie case of discrimination, which would re quire the prosecutor to stat e reasons for the challenged excusals, it is helpful, fo r purposes of appellate review, to ha ve the prosecutor's explanation. We therefore encourage court and counsel in all Wheeler/Batson proceedings to make a full record on the issue." ( People v. Zambrano
, supra , 41 Cal.4th at p. 1105, fn. 3.)4 previously served as a juror. The court inquired, "[Y]ou we nt to court for child support?"
Juror number 8 an swered, "Yes." After hearing the prosecutor's explanation for excusing the thre e Hispanic women, the court declared, "I don't find a prima facie case." Later on, after the prosecutor excused juror number 26, appellant renewed his Wheeler

- Batson motion. Defense counsel said that the prosecutor had exercised nine peremptory challenges and had excused a total of six Hispanic women. Counsel did not identify the three Hispanic women in addition to juror numbers 1, 8, and 21. The trial court responde d that "there was ample basis to excuse . . . the last person," i.e., juror num ber 26. Juror number 26 said that her sister had a drug problem and had been found guilty of transp orting drugs. Juror number 26 had gone to
court for her sister 's sentencing. The court again determined that appellant had not established a prima facie case of group bias, but it allowed the prosecutor to give an explanation. The prosecutor declared that "the last young lady I kicked [juror numb er 26] was an Asian female whose sister had been prosecuted for some type of drug charge ." The judge responded that he did not know whether the juror was Asian or Hispanic. The prosecutor insisted, "I think she was clearly Asian." The prosecutor continued: "And the two [j urors] prior to that we re very clear. One, her husband was convicted of a drug charge in which there were immigration issues that came to light . . . . [¶ ] Prior to that, I don't remember the race of that person. I know she
was the one that stated that he r son had fraudulently used the Av is credit cards. Obviously,
that would not work out well for me." The two jurors to whom th e prosecutor was referring were juror numbers 24 and 28.
Juror number 24 said that sh e had been in court "to support[ her] husband," who was charged with "having drugs insi de his car" and driving while under the influence. She was "trying to fix his paper[s] and immigration [i ssues] came up." Juror number 28 said that her
son used to work for Avis and had been arrested for fraudulently using an Avis credit card. "Three cops" came to her house to arre st him. "That scared [her]." The prosecutor remarked: "[J]ust so the reco rd is very clear, I wa nt to point out the fact that currently on the jury is number 14, Hispanic race , female; juror number 16 is a5 Hispanic female; juror number 22 is a Hispanic female." The prosecutor accepted the jury as constituted. Defense counsel did not disput e that three Hispanic women remained on the jury.
Discussion A prosecutor is presumed to have exerci sed peremptory challenges in a constitutional manner. ( People v. Alvarez (1996) 14 Cal.4th 155, 193.) The defendant has the burden of making a prima facie showing of purposeful discrimination. ( Ibid. ) The defendant makes a prima facie showing "by producing evidence suffi cient to permit the tria l judge to draw an inference that discrimination has occurred." ( Johnson v. California
, supra, 545 U.S. at p. 170; see also People v. Blacksher (2011) 52 Cal.4th 769, 801 ["the defendant must demonstrate ' " 'that the totality of the rele vant facts gives rise to an inference of discriminatory purpose' " ' "].) "[W]e inde pendently review the record and determine whether it 'supports an inference that the pros ecutor excused a juror on the basis of [group bias].' [Citation.]" ( People v. Edwards (2013) 57 Cal.4th 658, 698; accord, People v.
Harris (2013) 57 Cal.4th 804, 834.) Based on our independent review of the r ecord, we agree with the trial court that appellant did not make a prima facie showing of group bias. Three of the six allegedly Hispanic jurors had a close relative who had b een arrested for or convicted of a criminal offense. " '[A] prosecutor may reasonably surm ise that a close relativ e's adversary contact with the criminal justice sy stem might make a prospectiv e juror unsympathetic to the prosecution.' [Citation.]" ( People v. Jones (2013) 57 Cal.4th 899, 920.) The prosecutor disputed the Hispanic ethnicity of one of thes e three jurors - juror number 26 - and the trial judge said that he did not know whether she was Hispanic or Asian. Appellant produced no evidence of juror number 26's ethnicity; therefore, he coul d not have met his burden of producing evidence suffici ent to support an inference of gr oup bias as to juror number 26. A fourth juror - juror number 21 - had a friend who had been convicted of "drug smuggling" and was still in prison. Juror numb er 21 had gone "to court to support [her] friend." A prosecutor could reasonably surmise that, because of her friend's negative6 experience with the criminal ju stice system, juror number 21 mi ght be unsympathetic to the prosecution. This leaves jurors 1 and 8. Although ju ror number 1 said nothing that would justify striking her from the jury, it is clear from the trial court's rema rks that her demeanor during voir dire raised questions abou t her ability to serve as a juro r. The trial court stated: "There's no doubt about it, number 1 had life experience issues, you name it." "Here, the trial judge, who had observed th e voir dire, was in the best position to determine" this matter. ( People v. Davenport (1995) 11 Cal.4th 1171, 1201, ove rruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) The issue comes dow n to whether the record supports an inference that the prosecutor struck juror number 8 because of bias against Hispanic women. Juror number 8 said that she had gone "to court for child support." It is reasonable to infer, as th e trial court inferred, that she had gone to court seeking support from the father of her five children. The pr osecutor, on the other hand, inferred that she was the parent who had failed to pay child support. The prosecutor expressed concern that juror
number 8's involvement in the child support proceeding sh owed "that she's not a lawabiding citizen." Even if the inferences draw n by the prosecutor were unreasonable, this would not mean that appellant established a prima facie case of group bias based on the prosecutor's removal of juror number 8. "A lthough circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, . . . to make a prima facie case after th e excusal of only one or two members of a group is very difficult. [Citation.]" ( People v. Bell (2007) 40 Cal.4th 582, 599, fn. 3.)
The circumstances here do not give rise to an inference of discriminatory purpose in striking juror number 8. The prosecutor left three Hispanic women on the jury. "Although ' "the fact that the jury includ ed members of a group allegedl y discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection." ' [Citation.]" ( People v. Williams (2013) 56 Cal.4th 630, 663; see also People v. Garcia (2011) 52 Cal.4th 706, 747-748 ["ultimate inclusion on the jury of members of the group allegedly targeted by discrimination indicates ' "good faith" ' in the use of peremptory challenges, and may show7 under all the circumstances that no Wheeler / Batson violation occurred"].) "Neither [appellant] nor any of the victims or percipient witnesses to the crimes were [Hispanic women]." ( People v. Bell
, supra , 40 Cal.4th at p. 599.) Appellant is an AfricanAmerican man. The witnesses mentioned in appellant's stat ement of facts in his opening brief, as well as the witnesses who testified at trial, all have appa rently non-Hispanic surnames: Sondra Swift, Susana Rangel, and David Wisansky. "[T]hat [appellant] was not a member of . . . the . . . cogn izable group[] involved . . . neither proves the peremptory challenges against members of [this] group were not discriminatory nor defeats [appellant's] motion as a matter of law; it merely identifies a fa ctor that, because it is absent, fails in this case to support an inference of discrimination." ( Id ., at p. 600.) "The exercise of even a single challenge based on [group bias] is constitutionally proscribed. [Citation.]" ( People v. Howard (2008) 42 Cal.4th 1000, 1018, fn. 10.) But our Supreme Court has "found it ' "impossible," ' as a practical matter, to draw the requisite inference [of group bias] where only a few members of a cognizable group have been excused and no indelible pattern of discrimina tion appears. [Citations.] Similar concerns prevent us from rejecting the in stant ruling simply because the prosecutor excused" five Hispanic women, when the reco rd shows that reasonable grounds existed to strike four of the women, three Hispanic wo men remained on the jury, and neither appellant nor any
witnesses were members of the cognizable group. ( People v. Garcia (2011) 52 Cal.4th 706, 747.) Disposition The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J. We concur:

GILBERT, P.J.

PERREN, J.8 John S. Fisher, Judge
Superior Court County of Los Angeles

________________ ______________

Michael Allen, under appointment by th e Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney Gene ral, Analee J. Brodie, Deputy Attorney General, for Plain tiff and Respondent.