IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A114514

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1 Filed 4/29/09 P. v. Johnson CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. EZEKIEL JOHNSON, Defendant and Appellant. A (Contra Costa County Super. Ct. No ) Defendant was convicted by jury trial of first degree murder (Pen. Code, 187), 1 and of conspiracy to commit assault with force likely to cause bodily injury ( 182, subd. (a)(1), 245, subd. (a)(1)). A gang enhancement was found true as to each crime. ( , subd. (b)(1).) Defendant admitted a prior prison term allegation ( 667.5, subd. (b)), and he was sentenced to a total of 36 years to life. He argues on appeal that the trial court erred in denying his motion to quash the jury venire and in permitting the prosecutor to exercise peremptory challenges to remove three African-American prospective jurors. Defendant also contends that his conviction for first degree murder is not supported by substantial evidence and that the gang enhancements likewise are not supported by substantial evidence. He claims that the trial court erred in admitting evidence of (1) his affiliation with a gang, (2) observations of him selling drugs, (3) an impermissibly suggestive photographic lineup, and (4) statements he made to police that were obtained in violation of the Fifth Amendment to the federal Constitution and 1 All further statutory references are to the Penal Code unless otherwise noted. 1

2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Defendant also argues that the trial court made certain errors in instructing the jury. He asks that this court conduct an in camera review to determine whether the trial court abused its discretion in declining to unseal an entire search warrant. Finally, defendant argues that the trial court erred in imposing a consecutive 10-year term on a gang enhancement, and that the abstract of judgment incorrectly identifies the basis for imposing a separate one-year term for his prison prior ( 667.5, subd. (b)). We accept respondent s concessions as to the consecutive 10-year term on a gang enhancement and as to the identification of the incorrect basis for the separate one-year term, and we order the abstract of judgment to be corrected accordingly. In all other respects, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND According to testimony given at trial, on the night of July 24 and in the early morning hours of July 25, 2003, Neal Fiu 2 and four teenage members (Daniel G. (Danny G.), Joey O., Sammy V., and Brandon V.) 3 of the street gang Sons of Death (SOD) were on Fiu s front porch near the corner of South 15th Street and Maine Avenue in Richmond, drinking alcohol. Defendant had previously been seen at that corner conducting hand-to-hand transactions that appeared to be drug sales, and he had been seen accessing a trash can where Fiu kept drugs at his house. Also present on July 24 were Javier Cervantes (Javi) and Juan Cervantes (Juan), both of whom, along with 2 Codefendant Fiu was originally charged in the same action with defendant, but the trial court granted defendant s motion to sever. Fiu was tried before defendant and was convicted of second degree murder, conspiracy to commit assault with force likely to cause great bodily injury, street terrorism, and assault with force likely to cause great bodily injury. This court affirmed the convictions in a published opinion. (People v. Fiu (2008) 165 Cal.App.4th 360.) 3 At the time of the incident, the four boys were juveniles. All were charged with murder; all admitted violations of section 245, subdivision (a)(1) (assault with force likely to inflict great bodily injury) in juvenile court in exchange for agreements to testify. 2

3 defendant, appeared to be affiliated with the 15th Street gang that hung out near the corner of 15th Street and Maine Avenue. Fiu was a longtime member of SOD; defendant was not a member of the gang. While Fiu, the teenagers, Juan, and Javi were sitting on the front porch, Salvador Espinoza walked past, yelled the name of a gang (EHL, or Easter Hill Locos), and threw a gang sign. Taking this as a challenge, and because they did not want to appear weak, the four teenagers and Fiu approached Espinoza, and they started fighting. Danny G. pulled out a.38-caliber weapon, said SOD, and aimed the gun at Espinoza s face. Fiu pulled down Danny G s hand, and said to beat up Espinoza instead. Espinoza tried to escape, but Brandon V. caught him and threw him to the ground. The teenagers, Juan, Javi, and Fiu punched and kicked Espinoza in the head and body until he lost consciousness. The group left Espinoza lying on the ground, apparently still alive, and everyone returned to the porch to continue drinking. After the group returned to the porch, defendant arrived in a car, and Juan went to speak with him. Defendant approached Fiu s house and started talking to Fiu 4 and the teenagers, who told him that they had beaten up the victim, and that he was lying on the ground nearby. At one point defendant asked whether the victim was EHL. Defendant said he wanted to kill Espinoza, but Fiu told him to leave him (Espinoza) alone. Defendant left the house and went with the teenage gang members to where the victim was lying, and kicked and hit Espinoza. Defendant asked for a gun so that he could kill Espinoza, but no one in the group had one to give to him at the time, because Fiu had taken the gun from Danny G. Defendant got a milk crate, put it over Espinoza s neck, and jumped on it at least twice. Finally, defendant and Joey O. (at defendant s direction) stabbed Espinoza in the neck. Afterward, defendant and Javi went into the house, and 4 Danny G. testified that although he never personally associated with defendant, he had seen defendant talk with Fiu in the past, and they appeared to be good friends. Sammy V. testified that he saw defendant at Fiu s house almost every time he went there in the summer of Fiu s wife also testified that she saw defendant at her and Fiu s house every day around July

4 defendant washed his hands with bleach. While in the house, defendant referred to a fight with Easter Hill (which witnesses testified was also known as EHL). Defendant then drove the four young gang members to the home of Danny G. s mother. She washed the blood from their clothes. Over defense objection, based on Miranda, supra, 384 U.S. 436, the prosecution introduced at trial statements about his previous gang affiliation made by defendant to detectives during an interview the morning he was arrested. The statements are more fully summarized below. (Post, II.H.) Defendant was charged by information with murder ( 187 count 1) and conspiracy ( 182, subd. (a)(1) count 2) to commit two crimes (the sale of narcotics (Health & Saf. Code, 11379) and the commission of assault with force likely to produce great bodily injury ( 245, subd. (a)(1)). The information included two enhancements for personal use of a deadly weapon ( 12022, subd. (b)(1)), alleging that defendant personally used a knife and a milk crate in connection with the murder. The information also alleged that defendant committed both charged crimes for the benefit of a street gang ( , subd. (b)(1)), and that he had suffered a prison prior ( 667.5, subd. (b)). 5 Defendant was prosecuted for first degree murder under various theories. First, the prosecution contended that defendant was the actual perpetrator of a premeditated and deliberate murder, as supported by the evidence that he stated that he wanted to kill the victim before he participated in the beating death. The prosecutor also argued that defendant was guilty of first degree murder if jurors found that he aided and abetted an assault with force likely to cause great bodily injury, and that first degree murder was a natural and probable consequence of the assault. A third (and related) alternative presented to the jury was that defendant was guilty if jurors found that he joined a 5 The information alleged a strike prior ( 667, ) and a prior serious felony ( 667, subd. (a)(1)). The trial court later dismissed those allegations following a motion by the prosecutor. 4

5 conspiracy to assault the victim, and that murder was the natural and probable consequence of the conspiracy. 6 A jury found defendant guilty of first degree murder. Jurors also found defendant guilty of conspiracy to commit assault with force likely to cause great bodily injury. (The jury declined to find that defendant conspired to sell narcotics.) The jury also found true the allegations that the offenses were committed for the benefit of a street gang. Jurors found not true each of the allegations that defendant personally used a deadly and dangerous weapon (a knife and a milk crate). Defendant admitted the prior prison term allegation. The trial court sentenced defendant to 25 years to life for murder, with 10 years for the gang enhancement; the midterm of three years for conspiracy, with three additional years for the gang enhancement (both stayed pursuant to section ); and one year for the prison prior, totaling 36 years to life. Defendant timely appealed. A. Jury Venire 1. Background II. DISCUSSION Defendant, who is African-American, brought a motion to quash the jury venire, arguing that African-American jurors were underrepresented on the lists of potential jurors in Contra Costa County, and that the jury selection procedure in the county resulted in selection of jurors in a constitutionally impermissible manner. 8 The prosecutor opposed the motion, arguing that defendant s trial counsel had raised the 6 The prosecutor also briefly argued that defendant was a direct aider and abettor of murder by promoting and encouraging the death of the victim, and the jury was instructed on the definition of aiding and abetting (CALJIC No. 3.01). 7 Section 654 provides that [a]n act or omission that is punishable in different ways by different provisions of law shall... in no case... be punished under more than one provision. 8 The county s entire bench was recused, and the motion was heard by a judge from Alameda County. 5

6 identical issue, and had it resolved adversely to his clients, on previous occasions. (E.g., People v. Currie (2001) 87 Cal.App.4th 225.) According to stipulated facts submitted to the trial court, about 8.9 percent of Contra Costa s population over the age of 18 identifies itself as African-American, and about 6.09 or 6.14 percent of residents who appear for felony jury trials identify themselves as African-American. At a hearing on defendant s motion, the trial court heard testimony from Contra Costa s jury commissioner, who oversees preparing the master list summoning juries for the county. She testified that felony trials in Contra Costa County are heard in Martinez, and that the percentage of African-Americans who appear for jury duty differs from the percentage of African-Americans eligible to serve. Following the evidentiary hearing, the trial court denied the motion, noting that it was bound by Currie, supra, 87 Cal.App.4th Defendant filed a motion to reconsider, requesting that the trial court hold an additional evidentiary hearing to consider Contra Costa County s hardship policy, which permits potential jurors to be excused from jury service if they can document that it would take more than an hour and a half to travel to Martinez. (Defendant previously had established that it takes nearly two hours to travel by public transportation to the Martinez courthouse from Richmond, where there is a higher proportion of African- Americans compared with other areas of the county.) The parties stipulated that the policy was consistent with California Rules of Court, former rule 860 (now rule (d)(2) [undue hardship established where prospective juror would have to travel more than one-and-one-half hours from person s home to court]). After hearing further testimony and lengthy argument from counsel (primarily directed at an equal 9 The court permitted supplemental briefs to be filed regarding an equal protection argument raised by codefendant Fiu s counsel at the hearing. The parties submitted supplemental briefs regarding whether there was a valid equal protection claim based on the fact that cases are assigned to different courthouses depending on whether they are misdemeanors or felonies; however, defendant does not raise that equal protection argument on appeal. 6

7 protection argument not related to the hardship policy, see fn. 9), the trial court again denied the motion to quash. 2. Analysis The Sixth Amendment and the California Constitution (art. I, 16) both guarantee an accused the right to trial by jury drawn from a representative cross-section of the community. (People v. Bell (1989) 49 Cal.3d 502, 525 & fn. 10.) That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community. [Citation.] (People v. Horton (1995) 11 Cal.4th 1068, ) In challenging a jury venire, the defendant must first establish a prima facie violation of the fair cross-section right. (Bell, supra, at p. 525.) If the defendant succeeds in making this prima facie showing, the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire. [Citation.] (Horton, supra, at p ) In order to establish a prima facie violation for the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a distinctive group in the community; [10] (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the underrepresentation is due to systematic exclusion of the group in the jury-selection process. (Duren v. Missouri, supra, 439 U.S. 357 at p. 364; People v. Bell, supra, 49 Cal.3d at p. 525.) A defendant cannot establish a prima facie case of systematic exclusion of a distinctive group merely by presenting statistical evidence that the group is underrepresented in the jury pool, venire, or panel. Rather, the defendant must show that the underrepresentation is the result of an improper feature of 10 It is undisputed that defendant met the first prong of the three-part test in Duren v. Missouri (1979) 439 U.S. 357, because African-Americans are a distinctive group in the community. (People v. Currie, supra, 87 Cal.App.4th at pp ) 7

8 the jury selection process. [Citations.] (People v. Massie (1998) 19 Cal.4th 550, 580, fn. omitted.) In Currie, Division Five of this court found it unnecessary to address the second prong of the test and upheld the constitutionality of Contra Costa s jury selection system because defendant failed to demonstrate the third prong of the test, that the underrepresentation of African-Americans in the venire was due to the systematic exclusion of this group in the jury-section process. 11 (People v. Currie, supra, 87 Cal.App.4th at p. 235.) Defendant acknowledges this holding, but argues that he presented new evidence of the trial court s official hardship policy, which permits excusals for people who have to travel more than 90 minutes to the courthouse in Martinez. As the parties stipulated below, however, the court s policy is consistent with California Rules of Court, rule (d)(2). Defendant apparently does not challenge the constitutionality of the relevant rule (indeed, he does not even cite it in his opening brief). Instead, he argues that the effect of the hardship policy in Contra Costa County is the systematic exclusion of African-Americans from the jury-selection process. Defendant presented evidence below that a higher percentage of African-Americans live in Richmond than in Martinez, Pittsburg, and Walnut Creek. However, he presented no evidence to the trial court as to how the hardship policy was actually implemented, let alone that African-Americans were granted a disproportionate number of exemptions or excusals. (People v. Breaux (1991) 1 Cal.4th 281, 299.) Our Supreme Court considered, and rejected, a similar argument regarding Contra Costa s hardship policies nearly 20 years ago in People v. Bell, supra, 49 Cal.3d 502, and we find no reason to depart from its holding: [W]e [do not] accept the proposition inherent in defendant s claim that constitutionally impermissible systematic exclusion 11 The underrepresentation of African-Americans on the jury venires in Contra Costa County has been the subject of several other reported cases. (See, e.g., People v. Simmons (1985) 164 Cal.App.3d 1070; People v. Jones (1984) 151 Cal.App.3d 1029; People v. Black (1984) 160 Cal.App.3d 480; People v. Buford (1982) 132 Cal.App.3d 288.) 8

9 could be shown by demonstrating that underrepresentation of a cognizable class is the result of applying neutral criteria to grant deferrals on grounds of hardship. Defendant speculates, for example, that the disparity he proved exists because a large percentage of Black residents of Contra Costa County live in Richmond, have lower than average income, and lack ready transportation to the courthouse in Martinez. They qualified for hardship deferrals on that basis. No case holds, however, that disparity that results notwithstanding application of neutral and presumptively constitutionally permissible jury selection criteria is a product of systematic exclusion. (Id. at p. 530.) [D]efendant failed to identify any criterion used in the jury selection process that was arguably impermissible or was applied in an impermissible manner, and while he speculated that hardship deferrals were involved he neither demonstrated that they caused the disparity nor established that the basis on which they were granted was constitutionally impermissible. (Ibid.) Defendant argues that the trial court erred in not addressing the hardship policy in its final ruling, and in not permitting counsel to argue the new evidence at the end of a lengthy hearing. However, no amount of argument could have compensated for the fact that, as in People v. Bell, supra, 49 Cal.3d 502, defendant failed to present a prima facie case of a constitutional violation. The trial court correctly denied defendant s motion to quash the jury venire. B. Jury Not Selected in Racially Discriminatory Manner. Defendant argues that the trial court erred in excusing three African-American prospective jurors following the prosecutor s racially discriminatory use of peremptory challenges, thereby depriving him of his right to a fair trial. 1. Applicable law We set forth the applicable legal principles in People v. Fiu, supra, 165 Cal.App.4th 360, which we quote at length: A prosecutor may not use peremptory challenges to remove prospective jurors solely because they are members of an identifiable racial group. (Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, , 272.) Peremptory challenges must instead be 9

10 exercised to eliminate a specific bias relating to the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, at p. 276.) To do otherwise violates a criminal defendant s federal constitutional right to equal protection and his or her state constitutional right to be tried by a jury drawn from a representative cross-section of the community. (See Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp , 272; People v. Griffin (2004) 33 Cal.4th 536, 553; see also U.S. Const., 14th amend.; Cal. Const., art. I, 16.) Batson articulated a three-step process for evaluating a defendant s claim that the prosecutor s exercise of peremptory challenges was discriminatory. (Batson, supra, 476 U.S. at p. 96.) First, the defendant must make a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose on the part of the prosecutor. (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) We begin with the presumption that the prosecution exercised the peremptory challenge on a constitutionally permissible basis. (People v. Cleveland (2004) 32 Cal.4th 704, 732.) The defendant bears the burden of producing evidence sufficient to permit the trial court to draw an inference that discrimination has occurred. (Johnson, supra, at p. 169.) If the defendant makes a prima facie case of discrimination, the burden of proof shifts to the prosecutor at the second stage to show that the racial exclusion was not predicated on group bias. (Johnson, supra, 545 U.S. at p. 168.) The prosecution must offer a permissible race-neutral basis for exercising a peremptory challenge against that juror. (Ibid.) Finally, if a race-neutral explanation is offered, the trial court must determine whether the opponent of the strike has proved purposeful racial discrimination. (Johnson, supra, 545 U.S. at p. 168.) In determining whether the prosecution s justification for peremptory challenge is pretextual, the proper focus of the trial court is on the subjective genuineness of the race-neutral reasons given, not on the objective reasonableness of those reasons. (People v. Reynoso (2003) 31 Cal.4th 903, 924.) We review the trial court s ruling on the question of purposeful racial discrimination for substantial evidence. (People v. McDermott (2002) 28 Cal.4th 946, 10

11 971.) We give deference to the trial court s ability to distinguish bona fide reasons from sham excuses. (People v. Burgener (2003) 29 Cal.4th 833, 864.) The trial court s conclusions are entitled to deference as long as the court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered. (Ibid.) (People v. Fiu, supra, 165 Cal.App.4th at pp , fn. omitted.) There were no more than four or five African-American prospective jurors in the jury pool, and the prosecutor exercised peremptory challenges as to three of them. We address the allegedly discriminatory peremptory challenges separately. 2. Peremptory Challenge of Prospective Juror R.C. a. Background Prospective juror R.C. stated during jury selection that he was concerned about having to serve on a long trial, because he had just taken out an equity line of credit to start a residential real estate business and could not afford to spend weeks away from his job. R.C. also stated that it would be difficult to listen to testimony from gang members, but that he would listen. He said he look[ed] at everyone as being either knowing of the truth about Christ or not knowing about the truth, and that he found it bothersome that some people did not have knowledge of the truth. He mentioned that he had prior experience with drug use, and that although he would judge fairly, he could not help but include that [his drug experience] in anything. He explained that I used drugs 12 years ago for like 20 years from 20 to 40, and I know what it s like to be out there. And I have been a born again Christian for 12 years now, and it hurts me to see and hear about all the problems that are caused by drugs and caused by situations that [the drugs] have put people in, and people have been hurt and families have been devastated because of the violence and the drugs and things. R.C. also stated that, in general, he chose not to look at graphic photographs, and that it concerned him that he would have to look at them as a juror. The trial court asked R.C. whether he would look at the pictures despite his preference not to do so and commented: Some people might tell me: I just won t do it. I don t care, Judge. R.C. answered: I wouldn t say I don t care. But given the fact that I respect the gentleman 11

12 that gentlemen that is representing the People, as well as the defendant, and I have heard questions asking people relative to their own feelings, how they would feel, and I wouldn t if I had a choice, I wouldn t choose me. I wouldn t feel comfortable being a person that would be involved and have somebody s life on the line, and have to look at them and say that I would truly look at them the way he deserves, or the prosecuting attorney deserves, for me to look at those pictures in order to come with an accurate conclusion based on the evidence. The prosecutor challenged R.C. for cause. After the trial court denied the challenge for cause, and after further questioning of R.C. by defense counsel, the prosecutor indicated he intended to peremptorily challenge R.C. Defense counsel made a motion pursuant to Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258, alleging that the peremptory challenge was based upon R.C. s race. Defense counsel argued that other than the issue of viewing graphic photographs (which R.C. said he would do if so instructed by the trial court), there was nothing else that would indicate that R.C. would not be fair. The trial court concluded that the defense had established a prima facie case that the prosecutor s peremptory challenge of R.C. was based upon group bias, and it directed the prosecutor to state the reason for his challenge. The prosecutor offered the following reasons for the peremptory challenge: (1) R.C. stated that serving as a juror would be an economic hardship, because he was a realtor and had recently taken out a line of credit to get a new business started, (2) he stated he had been a drug user but was now quite evangelical in nature, which might rub other jurors the wrong way if R.C. believed that he knew the the truth and others did not, and (3) R.C. had expressed concern about looking at graphic pictures. In denying defendant s Batson-Wheeler motion, the trial court stated: If this were a challenge for cause situation, it would be much more difficult, because the statement about he would look at them [graphic photographs] but not to the extent necessary raises very serious questions about whether he can discharge his duties. But there s some ambiguity in that. [ ] But this is not a challenge for cause situation. This is a peremptory challenge. And what is really before me is whether the People are 12

13 exercising this challenge based on race neutral genuinely entertained race neutral concerns, beliefs, and I do find they are acting in complete good faith in this respect. The concerns that they expressed, that [the prosecutor] expressed, all three of them, provide individually and severally, collectively and severally I should say, provide race neutral reasons for exercising a peremptory challenge. The prosecutor thereafter exercised a peremptory challenge of R.C. b. Analysis So long as the trial court made a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, then we defer to the trial court s ability to distinguish bona fide reasons from sham excuses. (People v. Fiu, supra, 165 Cal.App.4th at p. 394, citing People v. Avila (2006) 38 Cal.4th 491, 541 [Batson states procedure and standard to be used by trial courts when motions challenging peremptory strikes are made].) Substantial evidence supports the trial court s finding that the prosecutor s reasons for the peremptory challenge of prospective juror R.C. were genuine. The trial court focused primarily on R.C. s reluctance to view gruesome photographs. The court denied the prosecutor s challenge for cause, stating that R.C. s answers to questions about graphic photographs did not amount to a basis for cause. However, the prosecutor s justification for a peremptory challenge need not support a challenge for cause. (People v. Allen (2004) 115 Cal.App.4th 542, 547, citing People v. Arias (1996) 13 Cal.4th 92, 136.) So long as the prosecutor s reason, even if trivial, was genuine and neutral, it will suffice. (Allen, supra, at p. 547.) When asked about his ability to view gruesome photographs, R.C. specifically stated that if I had a choice, I wouldn t choose me for the jury. We agree with the trial court s conclusion that the reason for the peremptory challenge was race neutral. Defendant points to R.C. s concern over the effect of the length of the trial on his business and suggests that a comparative analysis of this response with three other prospective jurors responses regarding a potential hardship demonstrates that the prosecutor s reliance on this reason was pretextual. Where a prosecutor offers an 13

14 explanation for exercising a peremptory challenge to an African-American prospective juror but does not challenge similarly situated White prospective jurors, it is relevant circumstantial evidence of intentional discrimination, because it suggests that the prosecutor s proffered reason for challenging the African-American prospective juror is pretextual. (Snyder v. Louisiana (2008) 552 U.S., 128 S.Ct. 1203, ; People v. Lenix (2008) 44 Cal.4th 602, 622; People v. Fiu, supra, 165 Cal.App.4th at p. 395.) If defendant relies on a comparative juror analysis and the record on appeal is adequate to permit the urged comparisons, an appellate court must conduct such an analysis even where, as here, the request is made for the first time on appeal. (People v. Lenix at p. 622.) Defendant directs us to three other prospective jurors who received postponements after describing to the trial court the potential hardship of serving on a multiweek jury trial. Defendant directs us to nothing in the record to indicate that the prosecutor questioned any of these jurors, let alone that he had the opportunity to peremptorily challenge them. Any comparative analysis is therefore inappropriate as to these three prospective jurors, where we cannot compare the prosecutor s handling of them with his handling of R.C. 12 (People v. Lenix, supra, 44 Cal.4th at p. 624 [comparative juror evidence most effectively considered where prosecutor can respond to alleged similarities of jurors].) The trial court did not err in denying defendant s Batson-Wheeler motion as to prospective juror R.C. 12 We stress that [t]he reviewing court need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment. (People v. Lenix, supra, 44 Cal.4th at p. 624, italics added.) Defendant does not identify responses by other jurors who offered information about their religious beliefs or answered questions about their willingness to view gruesome photographs, the two other reasons given by the prosecutor for his peremptory challenge. We therefore do not conduct a comparative analysis of answers to those types of questions. 14

15 3. Peremptory challenge of Prospective Juror M.E. a. Background Prospective juror M.E., who worked as a retail clerk for more than 30 years, lived in Richmond, apparently fewer than 15 blocks from the crime scene. She told the trial court that she had recently started taking medication for high blood pressure, and she had not become accustomed to it. She explained, It doesn t cloud [my thinking], but it kind of I can be listening and kind of like I m going to I haven t got used to the medicine. So I kind of, like I want to go to sleep. When the trial court asked M.E. whether she knew someone named Neal Fiu, she thought the court was referring to a feud and responded, What I thought you meant is the feud they ve been having about racism on the jury, an apparent reference to something M.E. had read about in the newspaper. M.E. expressed concern about whether witnesses might recognize her: They probably will recognize me because I worked in the five and ten cent store and all these gangs and things, even San Pablo have them, they all kind of intervene in, and they used to hang out in the shopping centers, or things like that. She also explained: The only problem I have, they tell me that I should have learned Spanish or, you know their language because when they say something, I don t know what they be saying. So that might If they get up here and say something, make a sign and I don t understand what that is, I might be frightened, you know. Because most people knows me because I worked in the variety store. I call it the five and ten cent store, so I probably done you know, they probably been in the store. We take money from anybody, you know. Then they say you get tagged. So I think I ve been tagged, but I don t worry about it. M.E. also described changes in her neighborhood: After they After, you know, different what did he call them? My sister don t like me to say Hispanic because she think I don t like Hispanic, but after older African-American moved out the neighborhood, they re buying their houses. So now we have more Hispanics around us because what we call up on the Hill used to be another call housing called Easter Hill Housing Project. They tore that down. That means they have to find places for people who wanted to stay in the area till they rebuild up there. [ ] So now to me, I said that s 15

16 when all the all the violence looks like it got worser, but it might not. I think it did. It made a big difference in the neighborhood. Plus she don t like for me to say we have more people that came from Mexico, but that s true. You can t get around from saying that, but she doesn t like when you talk that way. When asked how long she had been retired, M.E. responded, Well, I don t know if you call it retirement, but I worked well, I first started I started in Richmond 1960, downtown Richmond. Then when all the remodeling section, 19 see, that s what I mean the medicine makes me I can be talking, and then all of a sudden I forget what I m saying. At one point M.E. apologized for starting to cry when she was talking about the murder of her niece, whose killer was never caught. The prosecutor stated that he intended to exercise a peremptory challenge as to M.E. 13 Defense counsel made a Batson-Wheeler motion, claiming that although M.E. had a tendency to go on a tangent, she didn t say anything that would lead anyone to believe she couldn t be a fair and impartial juror. The trial court disagreed, but it concluded that the defense had established a prima facie case that the prosecutor s challenge was based upon group bias, because one other African-American had been excused and there were only two others left. The prosecutor explained the reasons for his challenge: M.E. appeared confused about the location of the crime even though she lived fewer than 15 blocks from the area; she was familiar with the Eastern Village projects and had a niece who was murdered in the area; she gave conflicting information about whether she had read about defendant s trial in the newspaper; she believed that the court was saying feud instead of Fiu for a few days; she was upset about the reputation Richmond had in the media; she seemed concerned about Hispanics moving into her neighborhood and changing Richmond; she worried about nodding off, not remembering things from one day to the next, being tagged by the witnesses, and not being able to 13 The prosecutor first stated, outside the presence of the jury, that he was challenging M.E. for cause. The trial court denied the challenge, and the parties proceeded to argue the Batson-Wheeler motion. 16

17 understand the language used by Hispanic witnesses; and M.E. s answers to questions were quite long, quite rambling, and covered many areas. The trial court denied defendant s Batson-Wheeler motion, concluding that the prosecutor sincerely believed the reasons provided, and that the reasons were race neutral and given in good faith. The court also concluded that all the reasons provided by the prosecutor had a basis in fact, and that they jointly and severally justified the exercise of the peremptory challenge. The prosecutor thereafter exercised a peremptory challenge of M.E. b. Analysis Of all the reasons cited by the prosecutor in challenging M.E., defendant focuses primarily on the reference to where M.E. lived and whether she was affected by her blood pressure medication. As for the first reason, defendant argues that the prosecutor s reliance on where M.E. lived strongly suggested group bias based on a stereotyped racial surrogate of residency in a poor Black neighborhood. United States v. Bishop (9th Cir. 1992) 959 F.2d 820, the case upon which defendant relies, is distinguishable. In Bishop, the prosecutor challenged an African-American man because someone from Compton (the population of which was about 75 percent African-American) would be likely to take the side of those who are having a tough time, aren t upper middle class, and [he] probably believes that police in Compton in South Central L.A. pick on black people. (Id. at p. 822 & fn. 2.) The Ninth Circuit held that the prospective juror s residence was impermissibly used as a proxy for race. (Id. at pp ) Here, by contrast, none of the prosecutor s proffered reasons for challenging M.E. drew on any racial stereotypes. Instead, he focused on the fact that M.E. appeared to be confused about the proximity of her residence to the scene of the crime; she had personal familiarity with the Eastern Village projects because her niece was murdered in the area; and she was concerned about Richmond s reputation and the fact that violence had risen in the city after Hispanics started moving in. Defendant suggests that there was an absence of any suggestion of concrete bias on [M.E. s] part. In fact, M.E. said that her sister thought she did not like Hispanics, that she thought there had been increased 17

18 violence since Hispanics moved to Richmond, and that she was concerned that witnesses in the case may recognize her or know her family members. In short, the prosecutor s reasons why he was concerned about M.E. were specific to her answers; he did not rely on stereotypical assumptions about people who live in Richmond. (Cf. United States v. Bishop, supra, 959 F.2d at p. 822 & fn. 2.) As for whether M.E. was truly affected by her blood pressure medication, defendant claims that there was no fair indication of incapacity and that M.E. s answers were responsive. To the contrary, M.E. at one point interrupted herself in the middle of a response and indicated that she was having trouble keeping her train of thought. 14 The trial court did not err in denying defendant s Batson-Wheeler motion as to prospective juror M.E. 14 Citing the questioning of a man (identified in the record only as Juror No. 4) who was selected to serve, defendant states in passing that M.E. was not the only older prospective juror on blood pressure medication here, presumably implying that a comparative analysis would reveal that the prosecutor s reliance on M.E. s use of medication was pretextual. (Snyder v. Louisiana, supra, 128 S.Ct. at pp ) However, defendant does not in fact conduct a comparative analysis. Moreover, we note that a close review of the record reveals that the juror to whom defendant directs us was also African-American. Any comparative analysis here therefore would be inappropriate. Defendant does not direct us to the prosecutor s handling of any similarly situated jurors who were of a different race from M.E., which might suggest that his proffered reasons for challenging M.E. were pretextual, and that the true reason for his challenge of M.E. was her race. 18

19 4. Peremptory challenge of Prospective Juror F.T. a. Background The trial court began its questioning of prospective juror F.T. by asking him to tell the court about the three adult children he listed on his juror voir dire questionnaire. F.T. answered, Is that necessary? The trial court asked whether F.T. would rather discuss the matter in private, and F.T. answered, If it s necessary. After a few questions in chambers about F.T. s children revealed that one was a high school counselor and the other two were in college, the trial court asked why F.T. had been reluctant to disclose this in open court. F.T. then criticized the jury selection process, complaining that [i]t seems like something is just not quite right with this. He complained that the procedure was taking too long, that he was tired, that he had lost his patience, that the questions had become repetitive, and that he did not understand why jury selection could not be done ahead of time. When asked what he thought about serving on a jury, F.T. replied, Nothing I m looking forward to doing. He later explained, Don t get me wrong. I m not saying what you are doing is wrong. I m not saying the process, per se, is wrong. I m saying, the way it is set up, it seems to be wrong. In other words, I can see the process happening, but not now. And the Judge just said that Mr. Johnson has to be part of the [jury selection] process. Okay, that s something I didn t know. I didn t realize that. [ ] But it just seems strange that we have to sit through all of this. And like I said, as you continue going over and over and over things, I can see where people are either getting tired or possibly frustrated. F.T. stated on his juror questionnaire that he had worked for the postal service for 25 (presumably, years), and he told the trial court that he drove a route in Oakland. The prosecutor exercised a peremptory challenge as to F.T., and defendant s attorney made a motion pursuant to Batson-Wheeler. The trial court found that the defense had established a prima facie case that the prosecutor s peremptory challenge was discriminatory and asked the prosecutor to provide the reason for the challenge. The prosecutor stated: Number one, he works for the Postal Service. There s a term that s used widely in society, called going Postal. And we started to see a bit of a glimpse of 19

20 that with Mr. T[.] here. The prosecutor said that F.T. did not want to go along with the system ; that F.T. appeared to be very frustrated, very outspoken ; that he (the prosecutor) had concerns F.T. would not blend in with other jurors; and that when asked whether he could put aside his frustration, F.T. said probably and accused the prosecutor of picking when he asked follow-up questions. Defendant s counsel objected to the prosecutor s characterization of F.T. s answers and argued that the reasons given were not race neutral. The trial court denied the Batson-Wheeler motion. It focused on F.T. s request to discuss his answers about his children in chambers and said that all he was doing was blowing off steam. He was he was just pissed off at the length of time that it was taking to select jurors, and he was assuming this attitude towards the whole process that in [sic] indicates that there s serious questions about his temperament. [ ] These are the issues that were raised by [the prosecutor]. They seem to me to be to have nothing to do with race. They simply have to do with his attitude towards this matter, and his temperament and whether he is an appropriate juror, the kind of person who is going to work with 12 other with 11 other individuals in reaching a decision. The court also concluded that F.T. s demeanor was consistent with [the prosecutor s] characterization of a person that has an explosive temperament. The trial court permitted the peremptory challenge of F.T. b. Analysis On appeal, defendant questions the trial court s findings regarding F.T. s demeanor. As the United States Supreme Court has stressed, race-neutral reasons for peremptory challenges often invoke a juror s demeanor (e.g., nervousness, inattention), making the trial court s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor s demeanor belies a discriminatory intent, but also whether the juror s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie peculiarly within a trial judge s province, [citations], and we have stated that in the absence of 20

21 exceptional circumstances, we would defer to [the trial court]. [Citation.] (Snyder v. Louisiana, supra, 128 S.Ct. at p ) Here, there are no exceptional circumstances that would lead us to question the trial court s findings with respect to F.T. s demeanor. Defendant opines that perhaps [F.T.] was having a tired day, but that he expressed everything he said honestly, openly, and responsibly. Defendant overlooks the trial court s observations that F.T. stated in open court that he would answer questions about his children only if he had to, and that he requested to speak in chambers only because he was pissed off and wanted to blow[] off steam. Defendant also argues that the prosecutor relied on intentional stereotyping, because he [p]resumed that F.T. was biased against the greater system. People v. Johnson (1978) 22 Cal.3d 296, upon which defendant relies, is readily distinguishable because there, unlike here, the prosecutor acknowledged that he did not want any African-Americans on the jury, and that he thought it would be difficult for any African- American to be objective about the evidence presented, without specifically questioning them about their views. (Id. at pp ) Here, by contrast, F.T. was questioned at length and told the trial court that something [wa]s just not quite right with the jury selection process. Finally, defendant argues that the trial court failed to offer any specific demeanor findings as to F.T. Again, this argument is not supported by the record, as the trial court stated that F.T. s demeanor was consistent with [the] characterization of a person that has an explosive temperament, and that the prosecutor s characterization of F.T. as 21

22 likely being difficult to work with was exactly the case. 15 The trial court did not err in denying defendant s Batson-Wheeler motion as to prospective juror F.T. C. Evidence Supports First Degree Murder Conviction. 1. Sufficient evidence murder was premeditated and deliberate Defendant was convicted in count one of deliberate and premeditated first degree murder. The jury was correctly instructed that murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. (CALJIC No ) A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill.... Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. [Citations.] (People v. Young (2005) 34 Cal.4th 1149, 1182.) Defendant argues that there was insufficient evidence that he acted with the requisite premeditation and deliberation to support this conviction. We need not be convinced beyond a reasonable doubt that the murder[] w[as] premeditated. Our inquiry on appeal in light of the whole record [is] whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] (People v. Sanchez (1995) 12 Cal.4th 1, 31-32, original italics, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) Defendant, in challenging the jury s finding that the murder was deliberate and premeditated, relies on the tripartite test of People v. Anderson (1968) 70 Cal.2d 15, (Anderson). [T]he tripartite test of [Anderson, supra,] 70 Cal.2d 15, [used] in deciding whether the evidence is sufficient to support a finding of premeditation and 15 Defendant argues generally that trial courts must determine that valid reasons exist for exercising peremptory challenges, and that those reasons actually prompted the prosecutor to make the challenge. To the extent that he argues that the trial court failed to make sufficient findings in this case to support its ruling, we reject his argument. (Cf. Snyder v. Louisiana, supra, 128 S.Ct. at pp. 1208, 1212 [court did not uphold granting of peremptory challenge where although prosecutor gave two reasons for peremptory challenge, trial court did not state reasons for allowing it, and one reason was not supported by record].) 22

23 deliberation [is] based on these three factors: (1) planning activity; (2) motive (established by a prior relationship and/or conduct with the victim); and (3) manner of killing. [Citations.] [T]his court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3). [Citation.] (People v. Sanchez, supra, 12 Cal.4th at p. 32.) [T]he Anderson factors do not establish normative rules, but instead provide guidelines for our analysis. (Ibid.) Unreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law in any way. (People v. Thomas (1992) 2 Cal.4th 489, 517.) In developing the Anderson guidelines, the court did not redefine the requirements for proving premeditation and deliberation. [Citation.] The categories of evidence identified in Anderson, moreover, do not represent an exhaustive list of evidence that could sustain a finding of premeditation and deliberation, and the reviewing court need not accord them any particular weight. [Citations.] (People v. Young, supra, 34 Cal.4th at p ) Applying these guidelines, we find substantial evidence to support the jury s finding that defendant premeditated and deliberated Espinoza s murder, and that there is evidence to support each of the Anderson categories. a. Planning When defendant arrived at the home of Fiu (who associated with defendant frequently during the summer of 2003), he spoke with Juan, Fiu, and the teenage gang members who had beaten Espinoza; said he wanted to kill the victim; went with the teenagers to the victim and kicked him, stabbed him, and placed a milk crate on his neck 23