People v. Trevino

• Decision Date: 29 August 1985
• Citation: 39 Cal.3d 667,704 P.2d 719,217 Cal.Rptr. 652
• Court: California Supreme Court
• Parties: , 704 P.2d 719 The PEOPLE, Plaintiff and Appellant, v. Jeremiah TREVINO, Defendant and Appellant; Leonard L. Rivas, Defendant and Respondent. Crim. 24027.

Page 652

217 Cal.Rptr. 652

39 Cal.3d 667, 704 P.2d 719

The PEOPLE, Plaintiff and Appellant, v. Jeremiah TREVINO, Defendant and Appellant Leonard L. Rivas, Defendant and Respondent.

Crim. 24027.

Supreme Court of California In Bank.

Aug. 29, 1985.

John K. Van de Kamp, Atty. Gen., Roger E. Venturi and Anthony L. Dicce, Deputy Attys. Gen., William A. Richmond, Dist. Atty., and Carl M. Faller, Jr., Deputy Dist. Atty., for plaintiff and appellant.

Quin Denvir and Frank O. Bell, Jr., State Public Defenders, under appointment by the Court of Appeal, Michael R. Snedeker and Cynthia A. Thomas, Deputy State Public Defenders, for defendant and appellant.

Richard B. Barron, Visalia, under appointment by the Supreme Court, for defendant and respondent.

REYNOSO, Justice.

Jeremiah Trevino appeals from a conviction of murder (Pen.Code, § 187). ¹ The People appeal the dismissal of murder charges against his codefendant, Leonard L. Rivas. The parties raise two separate and distinct claims.

Trevino raises the question whether the term "Spanish surnamed" is sufficiently descriptive of a cognizable group to satisfy the Wheeler ² test for identifying prosecutorial abuse of the peremptory challenge in violation of a defendant's constitutional right to be tried by a jury drawn from a representative cross-section of the community. We conclude that the phrase does describe a cognizable class, namely Hispanics, and that the prosecution failed to sustain its burden of proving that Hispanics were not impermissibly excluded from jury service on the basis of group bias. Trevino's conviction, therefore, must be reversed.

The People assert that the trial court's order granting Rivas a new trial was not tantamount to an acquittal, regardless of the language used in the order. This argument overlooks the threshold inquiry as to whether the trial court erred earlier in the trial in denying Rivas' motions for judgment of acquittal based on insufficiency of the evidence. ( § 1118.1.) Because the evidence was "insufficient as a matter of law," as the trial court belatedly acknowledged in ruling on Rivas' motion for a new trial, and Rivas was therefore entitled to acquittal, we conclude that the trial court responsible for conducting a new trial correctly discharged Rivas on the basis of his once in jeopardy plea.

The facts as to the two defendants are interwoven. On June 11, 1979, Rollo "Ted" Hinton's body was found in the bedroom of his ransacked apartment. Cause of death was determined to be a strong blow to the back of the head. The possible murder weapon, a steam iron, was found next to the body.

On January 26, 1982, an information was filed charging Jeremiah Trevino and Leonard L. Rivas, friends of the deceased, each with one count of murder ( § 187) with a special circumstances allegation that the murder was committed during the commission or attempted commission of a robbery. ( §§ 211, 190.2, subd. (a)(17).) Both men pleaded not guilty.

During the jury selection phase of the trial, the district attorney used peremptory challenges to exclude six Spanish surnamed individuals called to sit on the panel of twelve: Gloria Longoria, Justina Gonzalez, Mary Silvas, Catalina Martinez, Alex Facio and Robert Guerrero. ³ No Spanish surnamed jurors remained on the panel.

Following the prosecutor's exclusion of the sixth Spanish surnamed juror, the defense advised the court that it wished to make a Wheeler motion regarding the district attorney's seemingly automatic removal of this distinct group of jurors. The court apparently told the defense to wait until the three alternate jurors had been selected before pursuing the motion. During the selection of alternates, the district attorney peremptorily challenged one Spanish surnamed juror, Arnold Rocha, without questioning him on voir dire, but allowed another Spanish surnamed juror, Marcene Rocha, to remain as an alternate.

The defense then made a Wheeler motion, chronicling the district attorney's behavior as a violation of the defendants' constitutional right to a jury drawn from a representative cross-section of the community. The trial court called upon the prosecutor to explain his exclusion of the Spanish surnamed jurors and accepted the proffered justifications. The motion was denied.

The trial commenced on June 29, 1982. Wilma Nyberg, a neighbor of the deceased, testified for the prosecution that, at approximately 3 p.m. on the day in question, she saw a man she identified as Trevino exiting Hinton's apartment. At the same time, she heard a groan, and what sounded like Hinton saying "oh no," coming from inside the apartment. Immediately thereafter, a tall, slender, clean-shaven man emerged from the apartment. This man carried himself in the same manner as Rivas did in the courtroom. Both he and the first man appeared intoxicated. The two unsuccessfully attempted to start a light colored car ⁴ parked in front of Hinton's apartment. As Nyberg entered her apartment, she saw that the two men were rocking the car to try to start it. Later that afternoon she noticed that the car and the men were gone.

Nyberg testified that she had attended a physical lineup in November 1981 where she had been able to identify Trevino as one of the men she saw, but she was unable to positively identify Rivas. Two days prior to the physical lineup she had been shown a photographic lineup, which included Rivas' picture. Nyberg identified a different person as the second man she had seen at the Hinton apartment. Nyberg testified that she had been shown other photographic displays and had identified Rivas, but the parties later stipulated to the fact that Nyberg was mistaken, as she had never been shown any other such lineup.

Sergeant Wittman, the investigating officer who had shown Nyberg the photo display in 1981, testified that the picture of Rivas included in that display was taken the day after Hinton's death. Contrary to Nyberg's description of the second man she saw, the picture revealed that Rivas did not appear to be slender at the time and did have a moustache.

Nyberg admitted on the stand that "even today I can't positively identify Mr. Rivas other than he is the type of man that came through that corridor." The only other evidence linking Rivas to the scene of the crime was one fingerprint found on a dresser drawer. The expert who dusted Hinton's apartment for prints testified that he also found one of Trevino's prints on the dresser, and two of Hinton's prints and two of another individual's on a whiskey bottle in the living room. The expert was unable to estimate the age of the prints, admitting that they could have been made months earlier. Another prosecution witness confirmed that Trevino, Rivas and members of Trevino's family visited Hinton on occasion and referred to him affectionately as "Primo." ⁵

The prosecution also introduced evidence that Trevino and Rivas were seen together on the day of the crime. The two had visited Trevino's girlfriend in the hospital sometime after 6 a.m. when she gave birth to a child. The prosecution failed in its efforts to pinpoint the time with any greater accuracy.

At the close of the prosecution's case, the defendants moved for judgment of acquittal based on insufficient evidence. ( § 1118.1.) The court denied the motions.

Defense witnesses testified that they had seen Hinton alive on the day in question at 2:30 p.m. and at 4 p.m. The defendants did not testify. At this point the defense renewed the motions for acquittal, which the court again denied.

The jury found the defendants guilty of first degree murder with a finding that the special circumstances allegation was true. The court set aside the special circumstances finding as to both Trevino and Rivas. The defendants then moved for a new trial based on insufficiency of the evidence to support the murder convictions. ( § 1181.) The court denied the motion as to Trevino, but granted as to Rivas. Trevino received a 25 years to life sentence.

Rivas later pled not guilty to the charges of murder and robbery contained in an amended information. The second trial court then allowed him to change his plea to once in jeopardy ( § 1016), and discharged him on that basis.

I

We deal first with the issue whether the prosecutor's use of peremptory challenges to exclude the jurors in question violated Trevino's constitutional right to trial by a jury drawn from a representative cross-section of the community. (Cal. Const., art. I, § 16; Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.) Before reaching the merits of this claim, a review of the fundamental nature of the right in question, and the role of the prosecutor in safeguarding that right, is appropriate.

"The purpose of [the] jury is to guard against the exercise of arbitrary power--to make available the common-sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge [citations]." (Taylor v. Louisiana (1975) 419 U.S. 522, 530, 95 S.Ct. 692, 698, 42 L.Ed.2d 690.) The representative cross-section requirement is designed to serve several related functions, each of which complements this central role of the jury in our system of justice. First, and foremost in the eyes of the criminal defendant whose fate lies in the jurors' hands, the representative cross-section requirement protects, to the greatest extent possible, the right to be tried by an impartial jury. (Id., at pp. 527-528, 95 S.Ct. at pp. 696-697; Wheeler, supra, 22 Cal.3d at pp. 266, 271-272, 148 Cal.Rptr. 890, 583 P.2d 748; People v. White (1954) 43 Cal.2d 740, 754, 278 P.2d 9.) Of equal import to our overall concept of justice, the fair cross-section rule serves to "legitim[ize] the judgments of the courts, promot[e] citizen participation in government, and prevent[ ] further stigmatizing of minority groups." (Italics added.) (Wheeler,...