P. v. Carter

Filed 12/26/06 P. v. Carter CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JEROME TYRONE CARTER,
Defendant and Appellant.
F048285
(Super. Ct. No. BF106054C)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Jerome Tyrone Carter was convicted of three counts of second degree
robbery and one count of receiving stolen property, and the jury found true special
allegations relating to the possession and use of firearms. In bifurcated proceedings, the
trial judge found true the allegations involving his two prior prison terms. The trial judge

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also dismissed the count of receiving stolen property in the interest of justice. Carter was
sentenced to prison for a total prison term of 17 years, and was required to pay certain
fines and fees. He appeals, claiming the trial court erred in finding that he had not
established a prima facie case of group bias during jury selection. He also appeals his
sentence on the ground that it violates Blakely v. Washington (2004) 542 U.S. 296.
Because we find that Carter cannot establish a prima facie case of group bias during jury
selection based on the record on appeal, we affirm his convictions. Given that the
California Supreme Court determined that California’s sentencing scheme is
constitutional in People v. Black (2005) 35 Cal.4th 1238, we affirm his sentence.
FACTS
I.
Underlying Offense
On April 16, 2004, three African-American males with semi-automatic pistols and
wearing masks took about $14,000 from two tellers and a briefcase from a customer at
San Joaquin Bank in Bakersfield, California. Subsequent investigation led to the arrest
of Carter, Terrell Jamison Woodward and Carl Edward Jones. An information alleging
four counts arising out of the robbery was filed, and jury trial commenced on April 27,
2005.
II.
Jury Selection
The jurors were selected from a panel of 90 potential jurors. Three potential jurors
were African-Americans. At the outset of jury selection, 12 potential jurors were seated
in the jury box, including Prospective Jurors Nos. 5 and 12 who were African-Americans.
The court and counsel questioned the group of 12 potential jurors. In response to
the questioning, Prospective Juror No. 12 provided the following information. He was
single, and worked for a construction company in the oil fields. He had an A.S. degree in
electronics and was familiar with cell phone technology. He knew that DNA stood for

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deoxyribonucleic acid, but did not know much more about it other than how to
pronounce it.
When the prospective jurors were asked if any of them thought that if someone is
accused of a crime and is innocent, he should get up on the stand and testify and deny the
accusation, Prospective Juror No. 12 said: “Well, you know, if you want to tell your side
of the story, you should go ahead and tell it.” He said that he would not hold it against
the defendant if the attorney advised him not to testify and that he could follow an
instruction not to consider any failure not to testify in his deliberations. He also agreed to
keep an open mind and not formulate any opinions until he heard all the evidence. He
also knew something about communications, including how cell phones worked,
although he stated that he would listen to what the witnesses said rather than substituting
what he knew.
After the voir dire of the first 12 people was concluded, the People began their
peremptory challenges. The prosecutor exercised its third peremptory challenge to
excuse Juror No. 12, prompting a Wheeler motion by defense counsel. 1 After an
unreported sidebar conference, the court denied the motion.
Later, the trial court stated on the record that it found there was one African-
American female juror, then-prospective Juror No. 5 in the jury box of 12, and there was
one prospective black female juror in the courtroom. The court found no prima facie
Wheeler case. The trial court made this ruling after considering the presence of the
remaining two African-American jurors and the personal “factors including the personal
information that [Prospective Juror No. 12] provided, the other makeup of the jury, [and]
the personal characteristics that related to [Prospective Juror No. 12] including his age,
1 Although the defense only raised a Wheeler motion, for the purposes of this appeal, we
review whether there has been reversible error under both People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). (People v.
Yeoman (2003) 31 Cal.4th 93, 117).

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occupation.” Defense counsel stated that there were only three African-Americans on the
entire panel, and that there was no reason to excuse Prospective Juror No. 12, since he is
a “very articulate young man with a AA [sic] degree in science. He was the only one that
knew DNA. He works with computer electronics. DNA is a very big part of the
prosecution’s case.”
The prosecution passed repeatedly as to Juror No. 5, and she sat on the jury during
trial. The third African-American prospective juror never made it to the jury box.
The defense made a total of three Wheeler motions: one challenging the exclusion
of Juror No. 12, an African-American male, and two challenging exclusions of Hispanic
prospective jurors. The prosecution made a Wheeler motion relating to the defense’s
exclusion of a white male, one of only four white males in the jury pool. The trial court
denied all four Wheeler motions, finding that there was no prima facie case of group bias
in each instance.
III.
Verdict and Sentencing
During trial, Jones reached a plea agreement with the police, and the trial
proceeded as to Carter and Woodward only. The jury found Carter and Woodward guilty
as charged.
Carter was sentenced to five years on the three counts of second degree robbery,
plus 12 years on the enhancements. He also was ordered to pay $12,855 in restitution
and fees. He was given credit for 489 days in custody.
After sentencing, Carter timely appealed on the grounds that the trial judge had
committed reversible error in ruling that Carter had not established a prima facie case of
group bias with respect to the excusal of Prospective Juror No. 12, and that his sentence
was unconstitutionally excessive.

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DISCUSSION
I.
Wheeler/Batson Challenges
The California Constitution and the United States Constitution prohibit the
exercise of peremptory challenges solely because of group bias. (Wheeler, supra, 22
Cal.3d 258; Batson, supra, 476 U.S. 79.) When a defendant believes the prosecution is
exercising peremptory challenges in violation of the Constitution, the trial court must
follow this procedure: “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.]” (Johnson v.
California (2005) 545 U.S. 162, 168 [125 S.Ct. 2410, 2416], fn. omitted.)
A. Test For Prima Facie Case
Carter contends his case should be reversed for a new trial because the application
of an incorrect standard for purposes of determining a prima facie case on a
Wheeler/Batson motion is sufficient, by itself, to constitute reversible error. At the time
of the trial, California’s standard for establishing a prima facie case was different from
the standard now required by the United States Supreme Court. Because the trial court
was bound at that time to follow the California standard, Carter asserts that we must
presume that the trial court applied the incorrect standard and thus there was reversible
error. We disagree. The California Supreme Court was presented with the same
argument and rejected it. (People v. Cornwell (2005) 37 Cal.4th 50, 73.)

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At the time of the trial, in People v. Johnson (2003) 30 Cal.4th 1302, the
California Supreme Court held that the test for establishing a prima facie case of group
bias is that “the objector must show that it is more likely than not the other party’s
peremptory challenges, if unexplained, were based on impermissible group bias.” (Id. at
p. 1306.)
Subsequently, the United States Supreme Court granted certiorari and in Johnson
v. California, supra, 545 U.S. 162 (Johnson), held that “California’s ‘more likely than
not’ standard is at odds with the prima facie inquiry mandated by Batson.” (Johnson,
supra, 545 U.S. at p. 173.) The court found the appropriate standard to be that “a
defendant satisfies the requirements of Batson’s first step by producing evidence
sufficient to permit the trial judge to draw an inference that discrimination has occurred.”
(Id. at p. 170.)
The record is silent as to what standard the trial court applied in denying
appellant’s Wheeler/Batson motion. In a similar situation, the appellant in People v.
Cornwell, supra, 37 Cal.4th 50 (Cornwell), argued that “reversal is required on the
ground that the trial court determined (or may have determined) whether defendant
established a prima facie case” under an incorrect standard. (Cornwell, supra, 37 Cal.4th
at p. 72.). The California Supreme Court rejected the argument. (Id. at p. 73.) Instead, it
reviewed the record, applied the Johnson standard, and resolved the legal question of
“whether the record supports an inference that the prosecutor excused a juror on the basis
of race.” (Cornwell, supra, 37 Cal.4th at p.73; accord, People v. Gray (2005) 37 Cal.4th
168, 187; People v. Avila (2006) 38 Cal.4th 491, 554.) Accordingly, we decline to find
reversible error on the sole basis that the trial court may have applied the wrong legal test
in determining whether a prima facie case has been shown.
B. Application Of Prima Facie Test
Carter next contends that the prosecution’s exercise of one of 10 peremptory
challenges to exclude one of the three African-Americans in the prospective juror pool

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establishes a prima facie case of group bias and requires that we reverse this case for a
new trial. As discussed previously, because it is unclear from the record whether the trial
court applied the correct legal test in determining whether a prima facie case has been
made, we will review the appellate record, apply the Johnson test, and resolve the legal
question of “whether the record supports an inference that the prosecutor excused a juror
on the basis of race.” (Cornwell, supra, 37 Cal.4th at p. 73.) Our review is necessarily
limited to “matters adequately raised in the record.” (People v. Buchanan (2006) 143
Cal.App.4th 139, 141.)
As an initial matter, no party has disputed that the Wheeler/Batson challenge was
raised timely, that African-Americans are a cognizable group, and that the record is as
complete as feasible on appeal. (Wheeler, supra, 22 Cal.3d at p. 280; People v.
Buchanan, supra, 143 Cal.App.4th at p. 142.) Thus, we will assume that appellant has
satisfied these requirements, and turn to an examination of the record for evidence
supporting an inference of illegal discrimination in the prosecution’s use of peremptory
challenges.
Appellate courts have examined a wide variety of evidence to determine whether
there is evidence to support an inference that a prosecutor excused a juror on the basis of
race. Such evidence has included the trial court’s statements (see, e.g., Johnson, supra,
545 U.S. 162) and statistical circumstances (see, e.g., Cornwell, supra, 37 Cal.4th 50.).
A trial court’s observations and statements concerning the exercise of peremptory
challenges have been very persuasive to reviewing courts in determining whether a prima
facie case has been made. An example is Johnson, supra, 545 U.S. 162. In Johnson, the
defendant was Black and the victim was a 19-month-old White child. After prospective
jurors had been removed for cause, 43 eligible jurors remained. Of the 43 remaining
prospective jurors, three were Black. After the prosecutor exercised “the second of his
three peremptory challenges against the prospective [B]lack jurors, defense counsel
objected on the ground that the challenge was unconstitutionally based on race.”

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(Johnson, supra, 545 U.S. at p. 165.) The trial judge found that a prima facie case had
not been established. The judge warned the prosecutor that “‘“we are very close.”’”
(Ibid.)
The next day the prosecutor struck the final remaining prospective Black juror and
defense counsel made another motion. Although the trial court did not specifically find
that there was a prima facie case, the Johnson court found that a prima facie case had
been shown. “In this case the inference of discrimination was sufficient to invoke a
comment by the trial judge ‘that “we are very close,”’ and on review, the California
Supreme Court acknowledged that ‘it certainly looks suspicious that all three African-
American prospective jurors were removed from the jury.’ [Citation.] Those inferences
that discrimination may have occurred were sufficient to establish a prima facie case
under Batson.” (Johnson, supra, 545 U.S. at p. 173.)
In the case here, there are no comments by the trial court indicating that a prima
facie case was close to being made. Instead, the trial court found (albeit, possibly under
an incorrect standard) that Carter had not established a prima facie case.
Reviewing courts also have examined statistical circumstances to determine
whether appellants have shown a prima facie case. In Wheeler, supra, the California
Supreme Court suggested that an appellant could provide supporting evidence for a prima
facie case by showing “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.” (Wheeler, supra, 22 Cal.3d at p. 280.)
Thus, in People v. Allen (1999) 21 Cal.4th 846, the Supreme Court found there
was a prima facie case where all of the African-American prospective jurors were

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excused.2 (Accord, People v. Gore (1993) 18 Cal.App.4th 692 [prima facie case where
all three African-American prospective jurors were excused].) Likewise, in People v.
Fuentes (1991) 54 Cal.3d 707, the Supreme Court held that the trial court had impliedly
found a prima facie case where 14 of 19 peremptory challenges were used on African-
American prospective jurors. (Accord, People v. Hall (1983) 35 Cal.3d 161 [prima facie
case where five of eight peremptory challenges were used to excuse African-Americans,
leaving none on the jury].)
However, the California Supreme Court has noted that the fact that all excluded
jurors were African-American is not necessarily dispositive in establishing a prima facie
case. (People v. Box (2000) 23 Cal.4th 1153, 1188-1189). Moreover, the fact that the
prosecutor accepted a jury containing minorities “may be an indication of the
prosecutor’s good faith in exercising his peremptories, and may be an appropriate factor
for the trial judge to consider in ruling on a Wheeler objection, [although] it is not a
conclusive factor.” (People v. Snow (1987) 44 Cal.3d 216, 225.)
Here, only one of the prosecution’s 10 peremptory challenges was used to excuse
an African-American juror. Moreover, the prosecution repeatedly passed on challenging
an African-American prospective juror and that juror served on the jury. Thus, this case
is akin to Cornwell, supra, 37 Cal.4th 50.
In Cornwell, the defendant, “who is African-American, contend[ed] the prosecutor
exercised a peremptory challenge against Juror T., who also is African-American,
because of her race.” (Cornwell, supra, 37 Cal.4th at p. 66.) On the record, the Court
found that the defendant had not shown a prima facie case. “The circumstance that the
prosecutor challenged one out of two African-American prospective jurors does not
2 While the cases cited in this paragraph all predate Johnson, supra, 545 U.S. 162, the
fact that a prima facie case was found under a more rigorous standard implies that a
prima facie case would be found under the less rigorous, correct standard.

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support an inference of bias, particularly in view of the circumstance that the other
African-American juror had been passed repeatedly by the prosecutor from the beginning
of voir dire and ultimately served on the jury.” (Id. at pp. 69-70.).
Similar, in People v. Gray, supra, 37 Cal.4th 168, the Supreme Court rejected a
Wheeler/Batson claim where “[t]he prosecutor excluded one African-American juror
from the regular jury, but left another on, and struck one African-American from the
panel of alternates, but left another on.” (Id. at p. 188.)
Therefore, in the case here, the statistical circumstances of the prosecution’s
peremptory challenge against Prospective Juror No. 12 were not sufficient to raise an
inference of illegal discriminatory purpose.
Carter also contends that comparative analysis is a tool that may be used on appeal
to determine if appellant has made out a prima facie case, regardless of whether such
analysis occurred in the trial court. The California Supreme Court has not determined
this issue. (Cornwell, supra, 37 Cal.4th at p. 71; People v. Lewis (2006) 39 Cal.4th 970.)
We decline to do so as well. Nevertheless, assuming without deciding that a comparative
juror analysis should be undertaken, we conclude that comparative analysis does not
support Carter’s argument that there was a prima facie case.
When using comparative analysis to show a prima facie case of race
discrimination, the appellant must identify “prospective jurors of other ethnicities who
were not challenged but had a similar background and views.” (Cornwell, supra, 37
Cal.4th at p. 71).
As discussed previously, Prospective Juror No. 12 worked for a construction
company out in the oilfields. He received an A.S. degree in computer electronics. He
knew what DNA stood for, and he had special knowledge about cell phone technology.
The record does not indicate that any other prospective juror had this technical
background. The prospective juror who was not challenged that is most similar in
background to Prospective Juror No. 12 is Prospective Juror No. 9 who does maintenance

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work at gas stations, and used to do electro-mechanical repair on missiles when he was in
the military. However, there is no indication that the previous military work gave this
juror special knowledge about cell phone technology. Cell phone technology was a part
of the prosecution’s case against the appellant. Thus, it is plausible that the prosecution
excused Prospective Juror No. 12 on the basis of that prospective juror’s special
knowledge about cell phone technology and out of fear that the other jurors would rely
on that special knowledge as opposed to the evidence presented in court.
The fact that the prosecution had a very strong case against Carter even if it did
not introduce the evidence about cell phone technology does not detract from this
possibility because a prosecutor may wish to rely on all of the evidence in the case, even
extraneous or weak evidence.
Therefore, the circumstances do not support an inference that the prosecutor
challenged Prospective Juror No. 12 because of race.
We find no other evidence in the record supporting an inference of bias. Thus, we
reject the Wheeler/Batson claim.
II.
Blakely Challenge
Carter also contends that his sentence was unconstitutionally excessive in light of
Blakely v. Washington, supra, 542 U.S. 296. Carter admits that the California Supreme
Court has upheld the constitutionality of California’s sentencing scheme. (People v.
Black, supra, 35 Cal.4th 1238.) We are bound by the California Supreme Court’s
holding in Black unless and until the U.S. Supreme Court decides that Black was wrongly
decided. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) Thus, we
deny appellant Carter’s challenge to his sentence.

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DISPOSITION
The judgment is affirmed.
_____________________
Ardaiz, P.J.
WE CONCUR:
_____________________
Levy, J.
_____________________
Hill, J.

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