People v. Mendoza

Decision Date24 March 1994
Docket NumberNo. 91CA0318,91CA0318
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jesus MENDOZA, Defendant-Appellant. . IV
CourtColorado Court of Appeals

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Matthew S. Holman, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, James A. Henderson, Sp. Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge PLANK.

Defendant, Jesus Mendoza, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. In an earlier decision, we remanded for further proceedings on the issue of whether the prosecutor's jury selection procedures violated defendant's right to equal protection of the law. People v. Mendoza, 860 P.2d 1370 (1993). However, on certiorari review, our supreme court vacated that judgment and has remanded the case to this court for reconsideration in light of People v. Cerrone, 854 P.2d 178 (Colo.1993). Upon that consideration, we reaffirm our previous decision and remand for further proceedings applying the three-step process adopted by Cerrone.

I.

Defendant, who is of Hispanic heritage, contends that the trial court erred by not finding that the prosecution had used its peremptory challenges to discriminate against prospective minority jurors on the basis of race, violating his and the improperly excused individuals' state and federal constitutional rights. We conclude that the record is insufficient to determine this question.

The court employed the strike-method of jury selection. Thirty-five individuals were passed for cause by the defendant and prosecutor. Each side was then allowed up to eleven peremptory challenges. After the sixth round of peremptory challenges, the prosecutor had struck five prospective Spanish-surnamed jurors, and the defendant objected that the prosecutor was using his peremptory challenges to discriminate against Hispanics.

Defendant sought to make a record and then have the court determine whether the prosecutor was systematically excluding jurors on the basis of race. Rather than making such determination, the court asked the prosecutor to volunteer his reasons for the strikes. After the prosecutor stated his reasons, the court found that there was no "systematic exclusion," and jury selection continued.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the equal protection clause of the Fourteenth Amendment prohibited a prosecutor's exercise of peremptory challenges to strike petit jurors on account of race. Our supreme court in People v. Cerrone, supra, recognized the three-step process outlined in Batson for evaluating claims of racial discrimination in jury selection under the equal protection clause.

Under that test, the defendant must first make a prima facie showing that the prosecution has excluded potential jurors on account of race. Second, if a requisite showing has been made, the burden shifts to the prosecution to articulate a race-neutral explanation for removing the jurors in question. Third, if the prosecution succeeds in articulating a race-neutral explanation for each juror, then the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. People v. Cerrone, supra.

When the trial court does not make all the findings necessary under the Batson analysis, the appropriate remedy is to remand for further proceedings. People v. Portley, 857 P.2d 459 (Colo.App.1992).

A.

In following the three-step process, we first must determine whether the defendant established a prima facie showing that the prosecution excluded potential jurors on account of race.

To establish a prima facie case under Batson, the defendant must belong to a cognizable racial group and must first show that the prosecution exercised its peremptory challenges to remove members of a cognizable racial group from the jury and that the selection process provided the opportunity for discrimination. People v. Cerrone, supra. Defendant need not be a member of the same racial group as that allegedly removed from the jury. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).

The defendant must then demonstrate that these facts or any other relevant circumstances give rise to an inference that the prosecution used the challenge to exclude jurors on the basis of race.

The record supports a finding that the trial court here implicitly ruled that a prima facie case had been established by the prosecution's use of the first five out of six peremptory challenges to remove Hispanic jurors from the jury.

B.

Once a defendant establishes a prima facie showing of racially based peremptory challenges, the burden shifts to the prosecution to articulate a race-neutral explanation for its actions. The explanation must be based on something other than race, and unless a discriminatory intent is inherent in the reason given, the reason will be accepted as race neutral. People v. Cerrone, supra.

This burden is not met by general assertions that the prosecution did not discriminate, but the basis stated for the challenge need not rise to the level justifying an exercise of a challenge for cause. People v. Cerrone, supra. The prosecution must articulate a neutral explanation related to the particular case being tried. Batson v. Kentucky, supra.

The record establishes that, here, the prosecution presented explanations not based on race for each of the five peremptory challenges. One of the jurors grew up with the defendant's lawyer, another knew the defendant's mother, another indicated that she did not want to serve on the jury because of the defendant's age, and another was removed because she stated that sympathy toward the defendant might be a factor for her in trying to decide the case. The prosecution gave as an explanation for removing the fifth juror that he did not seem "to understand the questions or be literate based on his reading of the sign in front of us."

C.

The third step of the Batson process requires the court to determine as an "historical fact" whether the defendant has established "purposeful discrimination." People v. Cerrone, supra. To determine whether the prosecution intended to discriminate or whether the prosecution's race-neutral explanations should be believed, the trial court should look to all relevant evidence. People v. Cerrone, supra.

There are no prescribed procedures for presenting evidence and information relevant to the Batson three-step process. The defendant, however, "must have the opportunity to challenge the credibility of whatever evidence the People present." People v. Cerrone, supra, 854 P.2d at 191 (fn. 22).

In reviewing the record we find that the defendant's attorney conceded that one explanation given was valid, but did not have the opportunity to respond to the remaining explanations provided by the prosecution. The trial court simply stated that it was "satisfied with the explanation[s]" and ruled that it was "not going to find there's any systematic exclusion."

Cerrone requires that the defendant have the opportunity to respond to the prosecutor's comments on each juror and then the court must determine whether the exclusion of any juror violated either the defendant's or the prospective juror's equal protection rights. See U.S. v. Gordon, 817 F.2d 1538, 1541 (11th Cir.1987), cert. dismissed, 487 U.S. 1265, 109 S.Ct. 28, 101 L.Ed.2d 979 (1988).

Because the trial court did not have the benefit of the analysis in Cerrone at the time it ruled, the cause must be remanded so that the trial court may complete the third step of the Batson three-step process, i.e., allowing the defendant to present evidence rebutting the sufficiency of the prosecutor's explanations for the three Spanish-surnamed individuals who were assertedly improperly excused.

D.

We next address defendant's contention that the trial court erred by holding that he was not entitled to raise a Batson objection to the prosecutor's peremptory challenge of an African-American. We disagree because the objection was untimely.

Clearly defendant has standing to object to the discriminatory use of peremptory challenges, if not on his own behalf, then on behalf of the challenged juror. Ohio v. Powers, supra; Fields v. People, 732 P.2d 1145 (Colo.1987).

The question of timeliness, however, is more complex. The prosecution's reliance on § 13-71-139, C.R.S. (1993 Cum.Supp.) and People v. Green, 759 P.2d 814 (Colo.App.1988) is misplaced: both relate to objections regarding the jury pool, and not to discriminatory uses of peremptory challenges.

A timely objection is essential to a Batson claim, since the procedures for proving such a claim include requiring the prosecutor to state neutral reasons for striking the potential juror. Thus, it is best accomplished contemporaneously with jury voir dire. See Sawyer v. Butler, 881 F.2d 1273 (5th Cir.1989), aff'd sub nom. Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990); People v. Horrocks, 190 Colo. 501, 549 P.2d 400 (1976) (...

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