P. v. Martinez

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Filed 9/27/17 P. v. Martinez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL EMANUEL MARTINEZ,
Defendant and Appellant.
E065042
(Super.Ct.No. FSB1300044)
OPINION
APPEAL from the Superior Court of San Bernardino County. R. Glenn Yabuno,
Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Kristen
Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a conviction for first degree murder and attempted premeditated murder
(Pen. Code, §§ 187, subd. (a), 664),1 Daniel Emanuel Martinez received a sentence of 22
years 4 months plus 50 years to life in prison.2 Martinez raises one claim on appeal, that
the trial court erred in denying his Batson/Wheeler3 motion after the prosecutor
peremptorily excused three Hispanic prospective jurors. The trial court denied the
motion, concluding Martinez had failed to make a prima facie showing of discrimination.
We agree and affirm.
I
FACTUAL BACKGROUND
A. Trial Evidence
Early in the morning on January 1, 2013 in San Bernardino, Mark Daniel Mancha
and Vincente Lavin walked past Martinez’s house while Martinez was in his front yard.
After asking the two men where they were from (a question Lavin understood to be gang
related), Martinez shot Mancha in the head, killing him. Martinez fired at and missed
Lavin as Lavin ran away. The only relevant aspect of Martinez’s crimes to this appeal is
both he and his victims are Hispanic.
1 Unlabeled statutory citations refer to the Penal Code.
2 Martinez’s conviction includes several firearm enhancements. As to the murder,
the jury found he had personally and intentionally discharged a handgun causing great
bodily injury and death. (§ 12022.53, sub. (d).) As to both offenses, the jury found he
had personally and intentionally discharged a firearm (§ 12022.53, sub. (c)) and had
personally used a firearm (§ 12022.5).
3 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler).

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B. Jury Selection
1. The Batson/Wheeler motion
During voir dire, the prosecutor exercised a total of five peremptory challenges.
She used her first, second, and fifth to excuse three prospective jurors—No. 24, No. 45,
and No. 25—all of whom were Hispanic men. After the excusal of No. 25, defense
counsel made a Batson/Wheeler motion, arguing the prosecutor was “attempt[ing] to
deplete the jury pool of potential Hispanic Americans” by using three of five peremptory
challenges to excuse Hispanic men. Counsel did not provide any additional facts or
reasoning to support his argument. Without asking the prosecutor for comment, the court
found defense counsel had failed to make a prima facie showing of discrimination and
denied the motion. It noted that No. 45 appeared to have difficulties comprehending the
proceedings and understanding the jury questionnaire. It also noted that No. 25 had given
equivocal answers. It made no comment regarding No. 24.
The parties accepted the jury pool after the court’s ruling. The defense had
exercised a total of three peremptory challenges, the prosecution five. Aside from the
fact the court and parties seemed to agree No. 24, No. 45, and No. 25 were of Hispanic
descent, the record does not disclose any other information about any of the other jurors’
or prospective jurors’ ethnic backgrounds.
2. The challenged prospective jurors
No. 45 said he is a dentist. He said he no longer works, but used to work at “the
casino.” He has six children. He said they were all unemployed, but also said they work

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for the casino. He said his sons had served two years in jail in San Bernardino County
for “beat[ing] up their girlfriend or something,” but he had not been involved in the
proceedings and believed they had been treated fairly. He had no close friends or
relatives in law enforcement, no one close to him had been a victim of a crime, and he
had never met a person who was accused of being a gang member. He believed he could
be fair.
When the prosecutor asked the jury pool about viewing graphic evidence, No. 45
shook his head and said, “Yeah, I wouldn’t like to see that.” The prosecutor asked, “So
you don’t want to have nothing to do with this?” and he replied, “No.”
The following exchange occurred when the prosecutor asked the prospective
jurors if there were any reasons they should not serve on a jury:
“[NO. 45]: I don’t believe I can make it through jury trial like this because there’s
a lot of people that I know and for murder and all of this stuff, and I can’t be in here
saying, there you go, and that’s it—oh, my gosh.
“[PROSECUTOR]: Do you know a lot of people that have been murdered, is that
what you’re saying?
“[NO. 45]: Yeah, murder and been in jail and drugs.
“[PROSECUTOR]: So you know people—
“[NO. 45]: I don’t want to be like a witness, and I don’t know what you call it.
“[PROSECUTOR]: You don’t want to be involved in a case where someone may
potentially go to prison, is that what you’re saying?

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“[NO. 45]: No. Like, if you have somebody here on jury trial and I know that
person, I can’t say put ꞌem in jail or let them go, whatever.
“[PROSECUTOR]: Well, we asked, the judge asked you, if you knew anyone that
was on the list.
“[NO. 45]: Yeah.
“[PROSECUTOR]: Do you know anyone that was called out on the witness list?
“[NO. 45]: I just—the first one, I guess, was one of my sons, that’s all.
“[PROSECUTOR]: You know your sons. Well, okay. I apologize, but I’m a
little confused?
“[NO. 45]: I apologize too, the way I said it.
“[PROSECUTOR]: So let me just ask you this basic question: Why is it that you
don’t think that you could be a fair juror?
“[NO. 45]: I don’t know, because I don’t understand all this other stuff and I’m
too slow to understand it, you know.
“[PROSECUTOR]: So are you having a hard time understanding what we’re
talking about?
“[NO. 45]: Yeah.
“[PROSECUTOR]: Okay. So you think because of that you wouldn’t be able to
be a fair juror?
“[NO. 45]: Yeah.
“[PROSECUTOR]: Okay. Thank you for that. I appreciate your honesty.”

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At that point, the prosecutor requested a challenge for cause, and defense counsel
opposed it. The court denied the challenge, noting however “that [No. 45] may have
some comprehension issues.”
No. 24 was retired from working in the railroad. He was married and had three
adult daughters. One was married to a San Bernardino police detective, one used to date
a sheriff, and the third used to date a police officer. His nephew had been charged with a
crime and he had discussed the case with his nephew, but he believed he could be fair in
this case. Like No. 45, No. 24 also expressed discomfort about viewing graphic
evidence. He said, “I think I would have trouble looking at, you know, a dead person.”
He told the prosecutor, “I would probably look at [the graphic evidence] once.” The
prosecutor followed up with, “Once. Okay. And then that’s it?” and he said, “That’s it,
yeah.”
No. 25 worked for a pharmaceutical warehouse and his spouse worked for an
animal hospital. His cousin worked for the San Bernardino Police Department. He had
never served on a jury and believed he could be fair. When the court asked if anyone had
received a ticket from law enforcement they believed was undeserved, No. 25 raised his
hand. The following exchange occurred:
“THE COURT: And you don’t think you should have gotten that ticket?
“[NO. 25]: No.
“[¶] . . . [¶]

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“THE COURT: Are you willing to set aside that particular instance and not
equate your feelings about that officer with every law enforcement officer who testifies?
“[NO. 25]: No.
“THE COURT: Okay. So you can do that?
“[NO. 25]: Yeah.”
As the court later explained when it ruled on Martinez’s Batson/Wheeler motion, it
viewed No. 25’s answers on the subject of law enforcement bias “equivocal.”
II
DISCUSSION
Martinez contends the court erred in concluding he had not made a prima facie
case of discrimination and in not asking the prosecutor for her reasons for excusing No.
24, No. 25, No. 45. He argues remand is necessary to allow the court to continue the
three-step Batson/Wheeler inquiry and reverse his conviction if it finds discrimination.
As we explain, we agree with the trial court that Martinez failed to establish a prima facie
case of discrimination, and therefore “no remedial step of any kind is warranted.”
(People v. Garcia (2011) 52 Cal.4th 706, 746 (Garcia).)
The use of peremptory challenges to exclude prospective jurors based on race or
ethnicity is unconstitutional. (Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson, supra,
476 U.S. at p. 97.) It violates a criminal defendant’s Fourteenth Amendment right to
equal protection, as well as the right to trial by a jury drawn from a representative cross-

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section of the community under the California Constitution. (People v. Gutierrez (2017)
2 Cal.5th 1150, 1157.)
“There is a rebuttable presumption that a peremptory challenge is being exercised
properly, and the burden is on the opposing party to demonstrate impermissible
discrimination.” (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).) “The now
familiar Batson/ Wheeler inquiry consists of three distinct steps. First, the opponent of
the strike must make out a prima facie case by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose in the exercise of peremptory
challenges. Second, if the prima facie case has been made, the burden shifts to the
proponent of the strike to explain adequately the basis for excusing the juror by offering
permissible, nondiscriminatory justifications. Third, if the party has offered a
nondiscriminatory reason, the trial court must decide whether the opponent of the strike
has proved the ultimate question of purposeful discrimination.” (People v. Scott (2015)
61 Cal.4th 363, 383, citing Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).)
“‘When a trial court denies a Wheeler motion without finding a prima facie case of
group bias, the appellate court reviews the record of voir dire for evidence to support the
trial court’s ruling.’” (People v. Guerra (2006) 37 Cal.4th 1067, 1101 (Guerra),
overruled on another point in People v. Rundle (2008) 43 Cal.4th 76.) Where, as here, it
is unclear whether the trial court applied the correct “reasonable inference” standard or
the former “strong likelihood” standard overruled in Johnson, “we independently decide
whether the record permits an inference that the prosecutor excused jurors on prohibited

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discriminatory grounds.”4 (Garcia, supra, 52 Cal.4th at p. 747.) “‘We will affirm the
ruling where the record suggests grounds upon which the prosecutor might reasonably
have challenged the jurors in question.’” (Guerra, supra, at p. 1101.)
The court’s analysis in Bonilla is instructive here. In that case, the defendant
raised a Batson/Wheeler claim based on discrimination against African-American
prospective jurors. The only evidence he presented in support of his prima facie case of
discrimination was the fact the prosecution excused the only two African-American
prospective jurors in a 78-person juror pool. (Bonilla, supra, 41 Cal.4th at p. 342.) Our
high court agreed with the trial court that this evidence was insufficient to trigger step
two of the Batson/Wheeler inquiry, explaining, the small size of the sample—“two of
two”— made drawing an inference of discrimination from the sample size alone
“impossible.” (Bonilla, at pp. 342-343.) The court also noted the defendant had not
argued the prosecution’s questioning of the two African-American prospective jurors
“was cursory or materially different from the questioning of non-African-American
[prospective] jurors.” (Id. at p. 343.)
4 In Johnson, the United States Supreme Court reversed People v. Johnson (2003)
30 Cal.4th 1302, in which the California Supreme Court confirmed that the relevant
California standard—even if it sometimes had been expressed as a “‘reasonable
inference’”—was to show that it was “more likely than not” that purposeful
discrimination had occurred. (Id. at p. 1306.) “The high court disapproved this exacting
standard for federal constitutional purposes, and said that a prima facie burden simply
involves ‘producing evidence sufficient to permit the trial judge to draw an inference’ of
discrimination.” (Garcia, supra, 52 Cal.4th at pp. 746-747, citing Johnson, supra, 545
U.S. at p. 170.)

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The court identified certain types of evidence that are “especially relevant” to a
prima facie case of discrimination: “‘[T]he party may show that his opponent has struck
most or all of the members of the identified group from the venire, or has used a
disproportionate number of his peremptories against the group. He may also demonstrate
that the jurors in question share only this one characteristic—their membership in the
group—and that in all other respects they are as heterogeneous as the community as a
whole. Next, the showing may be supplemented when appropriate by such circumstances
as the failure of his opponent to engage these same jurors in more than desultory voir
dire, or indeed to ask them any questions at all. Lastly, . . . the defendant need not be a
member of the excluded group in order to complain of a violation of the representative
cross-section rule; yet if he is, and especially if in addition his alleged victim is a member
of the group to which the majority of the remaining jurors belong, these facts may also be
called to the court’s attention.’” (Bonilla, supra, 41 Cal.4th at p. 342.) The defendant’s
failure to present any of these types of evidence coupled with the fact “the information
elicited in voir dire showed race-neutral reasons for excusing both prospective jurors”
formed the basis of the court’s conclusion that the defendant’s evidence was insufficient
to give rise to an inference of discrimination. (Id. at p. 343)
Here, the evidence Martinez offered in support of his Batson/Wheeler claim was
even weaker than the evidence in Bonilla. Like the defendant in Bonilla, Martinez did
not contend the prosecutor’s questioning of No. 24, No. 25, or No. 45 was cursory or
materially different from the questioning of non-Hispanic prospective jurors. (Bonilla,

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supra, 41 Cal.4th at p. 343.) Nor could he, as the record shows the prosecutor asked No.
24, No. 25, and No. 45 the same types of questions she asked the other prospective jurors
and then spent time further questioning No. 24, No. 25, and No. 45 when their responses
raised concerns. (See People v. Cleveland (2004) 32 Cal.4th 704, 733 [far from engaging
the challenged prospective jurors “in more than desultory voir dire” or failing to ask them
“any questions at all,” “[h]ere the prosecutor tried to question them further, which []
suggests a nonracial motivation for their excusal”].)
Unlike the defendant in Bonilla, however, Martinez presented no evidence
regarding the ethnic makeup of the jury pool or the percentage of Hispanic prospective
jurors the prosecutor had excused. In Bonilla, the court knew the prosecution had
excused 100 percent of the African-Americans in the pool. Here, in contrast, we cannot
discern important statistical information like the percentage of the total number of
Hispanic prospective jurors the prosecutor excused or whether the empaneled jury
included any jurors of Hispanic descent. For example, we do not know whether No. 24,
No. 25, and No. 45 were the only Hispanic prospective jurors in the jury pool. There
may have been several other Hispanic prospective jurors, any number of which were
selected for the empaneled jury. Without this kind of information, it is impossible for a
trial court to infer a discriminatory purpose, especially in cases like this where both the
defendant and the victims are members of the challenged cognizable group. (Garcia,
supra, 52 Cal.4th at p. 747 [“we have found it ‘“‘impossible,’”’ as a practical matter, to
draw the requisite inference where only a few members of a cognizable group have been

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excused and no indelible pattern of discrimination appears”]; People v. Cleveland, supra,
32 Cal.4th at p. 733 [the fact a defendant and victim are part of the same protected group
can cut against an inference of discrimination].)
As our high court has explained, Batson/Wheeler claims like Martinez’s consisting
of no more “than an assertion that a number of prospective jurors from a cognizable
group had been excused” are “particularly weak.” (People v. Panah (2005) 35 Cal.4th
395, 442.) “Such a bare claim falls far short of ‘rais[ing] a reasonable inference that the
opposing party has challenged the jurors because of their race or other group
association.’” (Ibid.) A prima facie “demonstration entails, at the least, making as
complete a record as feasible . . . [and d]efense counsel’s cursory reference to prospective
jurors by name, number, occupation and race was insufficient.” (People v. Yeoman
(2003) 31 Cal.4th 93, 115.) Martinez failed to supplement his claim with statistical
evidence or evidence of a disparate questioning style on behalf of the prosecution. He
presented nothing more than the challenged prospective jurors were Hispanic, and thus
his showing was insufficient.
Finally, as was the case in Bonilla, the record reveals legitimate, race-neutral
reasons for excusing No. 24, No. 25, and No. 45. Martinez argues there was nothing
controversial about these prospective jurors that would prompt a peremptory challenge
and points out they had all said they could be fair and one of them—No. 24—even had
positive ties to law enforcement. However, Martinez overlooks the aspects of their
responses that would reasonably raise prosecutorial concerns.

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No. 25 said he had once received a ticket he did not think he deserved and then
said he would be unable to put aside this negative interaction with law enforcement and
hear evidence from police in this case without bias. No. 25 changed his answer when the
court asked him a second time whether he could set aside the prior experience, this time
saying he believed he could. The court found No. 25’s responses equivocal, and we
agree. A potential for bias against law enforcement is a legitimate, race-neutral reason
for the prosecution to excuse a prospective juror.
As to No. 24 and No. 45, both said they would be uncomfortable viewing graphic
evidence like autopsy photographs. This too is a legitimate, race-neutral reason for
excusing a prospective juror, especially because this case involved a fatal gunshot wound
to the victim’s head. The prosecutor could have reasonably doubted whether No. 24 and
No. 45 would have been willing or able to give all of the trial evidence due attention. We
also note No. 45’s responses during voir dire raise significant concerns about his ability
to hear and comprehend the proceedings. Not only did he bluntly tell the prosecutor he
could not understand the proceedings, he also gave several confusing and contradictory
responses when answering the jury questionnaire. “[P]eremptory challenges are not
challenges for cause” and thus may be made on an “‘apparently trivial’” basis. (People v.
Jones (1998) 17 Cal.4th 279, 294.) Our record review satisfies us that there were race-
neutral, and even non-trivial, reasons for excusing these three prospective jurors.
Martinez contends the trial court erred by not asking the prosecutor for her reasons
for excusing No. 24, No. 25, and No. 45. While it is a good practice for trial courts to

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solicit the prosecutor’s reasons at step one, the failure to do so is not error unless the
defendant has established a prima facie case of discrimination. (Garcia, supra, 52
Cal.4th at p. 746 [“the prosecutor was not required to disclose reasons for the excusals,
and the court was not required to evaluate them, until a prima facie case was made”].)
Having concluded Martinez did not establish a prima facie case, we find no error in how
the trial court handled his Batson/Wheeler claim.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
MILLER
Acting P. J.
CODRINGTON
J.

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