NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JOSE LEONARDO GILL ARMENTA, Appellant.
No. 1 CA-CR 20-0050
FILED 3-2-2021
Appeal from the Superior Court in Maricopa County
No. CR2014-148453-001
The Honorable Joseph P. Mikitish, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Brian Coffman
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
STATE v. ARMENTA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Chief Judge Peter B. Swann joined.
C A T T A N I, Judge:
¶1 Jose Leonardo Gill Armenta appeals his convictions and
sentences for sexual abuse, sexual conduct with a minor, and attempt to
commit molestation of a child. He argues the superior court erred by
allowing the State to use peremptory challenges to strike two Hispanic
prospective jurors from the jury panel. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In January 2014, 28-year-old Armenta took J.M., and J.M.’s 14-
year-old sister, Y.M., to run errands. They eventually went to a park, where
Armenta digitally penetrated Y.M.’s vagina, fondled her breasts, and tried
to make her touch his penis. The State charged Armenta with sexual abuse,
sexual conduct with a minor, and attempt to commit molestation of a child.
¶3 Jury selection took place in August 2016. The State and
defense counsel stipulated to each waive one peremptory strike, bringing
each side’s total number of strikes to five. Before the jury was empaneled,
Armenta raised a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), to
the State’s peremptory strikes of Juror 43 and Juror 83. Armenta argued
that both jurors were “Mexican American Latino jurors and the State
somehow found [the] need to strike two out of the few that were left.” After
the State provided a reason for both strikes—one had a family criminal
history, the other had a job as an aerospace engineer—the court allowed the
strikes to stand, ruling, “[i]t doesn’t have to be the best decision, just has to
be race neutral.”
¶4 The court empaneled 14 jurors. After a six-day trial, Armenta
was found guilty on all three counts. The court sentenced him to a
mitigated term of 17 years’ imprisonment followed by lifetime probation.
¶5 The superior court granted Armenta leave to file a delayed
appeal under Rule 32.1(f). We have jurisdiction under A.R.S. § 13-4033(A).
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STATE v. ARMENTA
Decision of the Court
DISCUSSION
¶6 Armenta challenges (1) the sufficiency of the superior court’s
Batson findings under State v. Porter, 248 Ariz. 392, 399, ¶ 20 (App. 2020),
review granted (Nov. 3, 2020); and (2) the denial of his Batson challenges to
the State’s peremptory strikes of prospective jurors 43 and 83.
I. Express Findings Under Porter.
¶7 Armenta argues, based on Porter, that the superior court
failed to make required findings on the record as to the State’s race-neutral
reasons for striking jurors. In Porter, this court held that when the superior
court is confronted with a pattern of strikes against minority jurors that
includes a demeanor-based explanation for a strike, the court must
determine expressly that the racially disproportionate impact of the pattern
is justified by genuine, not pretextual, race-neutral reasons. Id. at 399,
¶¶ 20, 21. This court further noted, however, that the superior court need
not make detailed findings addressing all the evidence before it in every
case, and at times may even conduct the entire analysis implicitly. Id. at
397, ¶ 16 (citing Miller-El v. Cockrell, 537 U.S. 322, 347 (2003)); State v. Canez,
202 Ariz. 133, 147, ¶ 28 (2002).
¶8 Neither of the two strikes that Armenta challenges were
demeanor-based so as to give rise to Porter’s express findings requirement.
248 Ariz. at 399, ¶ 20. The race-neutral reasons the State provided for
striking the jurors—one for a family history of crime, the other for
employment—do not implicate the concern underlying Porter’s call for
express findings and, as such, are appropriate subjects for implicit findings.
See Canez, 202 Ariz. at 147, ¶ 28. Moreover, the record before us does not
evidence a pattern of race-based strikes. Armenta only challenges two of
the State’s five strikes. Armenta does not dispute that some Hispanic jurors
remained on the panel, as indicated by his counsel’s statements that “a few”
potential Hispanic jurors “were left.” The record thus shows the State did
not use additional available strikes to remove potential Hispanic jurors
from the jury. Under the circumstances presented, the superior court’s
Batson findings are adequate for our review.
II. Batson Challenges.
¶9 Under the 14th Amendment’s Equal Protection Clause, the
State may not strike prospective jurors for solely racial reasons. Batson, 476
U.S. at 89. Batson challenges invoke a three-step analytical framework. State
v. Medina, 232 Ariz. 391, 404, ¶ 44 (2013). First, the opponent of the strike
must state a prima facie case of racial discrimination. Id.; see also Purkett v.
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STATE v. ARMENTA
Decision of the Court
Elem, 514 U.S. 765, 767 (1995). Then, the burden of production shifts to the
proponent to present a race-neutral explanation for the strike. Purkett, 514
U.S. at 767. Finally, the court decides whether purposeful racial
discrimination has been proven. Id.
¶10 The party challenging the strike has the burden of showing
that the race-neutral explanation is merely a pretext. State v. Gay, 214 Ariz.
214, 220, ¶ 17 (App. 2007). “This third step is fact intensive and will turn
on issues of credibility, which the trial court is in a better position to assess
than is this Court.” State v. Newell, 212 Ariz. 389, 401, ¶ 54 (2006). When
reviewing the superior court’s ruling on a Batson challenge, we defer to its
factual findings unless clearly erroneous. Id. at 400, ¶ 52; State v. Lucas, 199
Ariz. 366, 368, ¶ 6 (App. 2001).
A. Juror 43.
¶11 Armenta’s counsel first objected to the State’s strike of Juror
43, pointing out that “there were very minimal[,] very few Hispanics on the
panel. The State has decided to strike one of the remaining female
Hispanics left on the panel . . . Number 43 said she could be fair[,]
impartial.” The court found this was a “prima facie showing,” so the State
provided its reason for striking Juror 43:
Juror 43 reported a family history that included molestation,
domestic violence, homicide. She herself had been a victim or
is related to other victims and perpetrators of crimes. She had
indicated that she was mostly and tangentially related to most
of these individuals . . . [C]onsidering the number of these
individuals in her family who she knows that were either
victims or perpetrators of crimes in the aggregate[,] that
experience renders her inappropriate for this jury.
The court denied Armenta’s Batson challenge, stating that “the State has
shown a race neutral provision.”
¶12 For the first time on appeal, Armenta undertakes a
comparative analysis of the jury and lists four other jurors who also had
family members who were victims or perpetrators of crimes, who
nonetheless were empaneled as jurors. For example, Armenta compares
empaneled Juror 16, whose brother was a homicide victim (“a closer
relative and more recent in time”), to stricken Juror 43, whose husband’s
grandfather was a homicide victim. He likewise compares empaneled Juror
29’s close friend, who was arrested for a domestic dispute, with stricken
Juror 43’s husband, who had a domestic violence charge dropped.
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STATE v. ARMENTA
Decision of the Court
¶13 A comparative analysis of juror qualities must be presented
to the superior court, and we will not undertake a more thorough analysis
than that made by the superior court. Medina, 232 Ariz. at 405, ¶ 49; see also
Snyder v. Louisiana, 552 U.S. 472, 483 (2008) (“[A] retrospective comparison
of jurors based on a cold appellate record may be very misleading when
alleged similarities were not raised at trial.”). Accordingly, Armenta’s
comparative analysis claim fails.
¶14 Armenta’s additional arguments regarding Juror 43 are
similarly unavailing. Personal or familial involvement with the criminal
justice system has been recognized as a potentially nondiscriminatory basis
for a juror strike. State v. Gallardo, 225 Ariz. 560, 565, ¶¶ 12–13 (2010); State
v. Reyes, 163 Ariz. 488, 490–91 (App. 1989); see also United States v. Johnson,
54 F.3d 1150, 1163 (4th Cir. 1995) (prospective juror’s husband “had been
involved in criminal activity”); United States v. Jackson, 914 F.2d 1050, 1052–
53 (8th Cir. 1990) (prospective juror’s nephew was incarcerated). Moreover,
“[a]s long as it is not based upon race, perceived sympathy on the part of a
prospective juror toward a defendant is a legitimate basis for a peremptory
strike.” State v. Hernandez, 170 Ariz. 301, 305–06 (App. 1991) (citation
omitted).
¶15 The record shows Juror 43 had extensive personal and
familial involvement with the criminal justice system, both as a victim and
as someone with family members who had been convicted of criminal
offenses. In the aggregate, these contacts provide a plausible race-neutral
reason to justify a strike. Gallardo, 225 Ariz. at 565, ¶¶ 12–13. Although
Juror 43 answered “no” each time the court asked her if anything about
those experiences would prevent her from being fair and impartial, her
responses arguably created a concern about her ability to remain impartial.
Since it was not based on race, Juror 43’s personal and familial involvement
with the criminal justice system was a legitimate basis for a peremptory
strike. See Hernandez, 170 Ariz. at 305–06. On this record, the superior court
did not abuse its discretion by finding that Armenta failed to prove
discrimination in the State’s strike of Juror 43. Newell, 212 Ariz. at 401, ¶ 54.
B. Juror 83.
¶16 In objecting to the State’s strike of Juror 83, Armenta’s counsel
again expressed “we have very few Mexican American Latino jurors and
the State somehow found [the] need to strike two out of the few that were
left.” The superior court did not make a finding on the record that Armenta
satisfied the first step of Batson, but we presume it did so because the State
provided an explanation for the strike. See id. (“The first step of the Batson
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STATE v. ARMENTA
Decision of the Court
analysis is complete when the trial court requests an explanation for the
peremptory strike.”). The State explained:
Juror number 83 is an aerospace engineer, said inspector, but
I believe that that is an engineering background[,] 28 years.
In cases such as these where there’s no technical or physical
evidence like DNA and the only evidence is testimony the
State feels that a juror with this technical background is not
appropriate.
Armenta’s counsel responded that “the State’s argument for [Juror 83] is
that he’s an engineer and may be too technical[,] too smart to be on the panel
. . . I don’t know that that’s a legally sufficient reason.” The court
nevertheless found that in light of “the nature of evidence here in this
particular case,” the explanation was race neutral and “more than just a
façade.” The court noted that the basis for the strike “doesn’t have to be the
best decision, just has to be race neutral.”
¶17 On appeal, Armenta lists seven other jurors who served on
the final panel who “held positions or were in occupations that would be
heavily involved with sophisticated technology,” including an empaneled
juror who worked in manufacturing at Honeywell. Armenta also recounts
that the prosecutor asked the venire if they expected the State to present
physical evidence, and although several jurors raised their cards, Juror 83
was not one of them.
¶18 Again, Armenta failed to raise a comparative juror analysis
claim in the superior court, and we do not consider such an argument
unless first raised below. Medina, 232 Ariz. at 405, ¶ 49. Thus, Armenta’s
comparative analysis argument fails.
¶19 Armenta further argues that the State’s explanation was
necessarily pretextual. “[I]mplausible or fantastic justifications may (and
probably will) be found to be pretext[ual].” Newell, 212 Ariz. at 400, ¶ 54
(quoting Purkett, 514 U.S. at 768). But this court has held that work history
and education can serve as an appropriate race-neutral reason for a juror
strike. See State v. Sanderson, 182 Ariz. 534, 540 (App. 1995) (explaining that
“[p]rospective jurors’ age, marital status and lack of employment have been
identified as non-discriminatory reasons supporting the exercise of
peremptory strikes”).
¶20 Here, the State’s justification for striking Juror 83 was his
technical background and employment history. The State identified Juror
83’s job—aerospace engineer or inspector—and elaborated that he was
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STATE v. ARMENTA
Decision of the Court
struck because the case lacked the technical evidence that an engineer
would likely expect. This type of justification has been affirmed by this
court. See State v. Rodarte, 173 Ariz. 331, 334–35 (App. 1992) (finding no
Batson violation in a strike based on lack of employment). And the superior
court found the prosecutor’s reasoning to be race neutral and “more than
just a façade.” We presume this holding was based on the State’s responses
and the superior court’s evaluation of credibility factors, including “the
prosecutor’s demeanor; . . . how reasonable, or how improbable, the
explanations are; and . . . whether the proffered rationale has some basis in
accepted trial strategy.” Miller-El, 537 U.S. at 339. Although other jurors
had technical backgrounds, as Armenta argues for the first time on appeal,
there were no other engineers, and it was not necessarily implausible to
assume an engineer would expect technical or scientific evidence. See
Newell, 212 Ariz. at 400, ¶ 54. The fact that Juror 83 did not raise his card to
indicate he expected the State to present physical evidence, although
important, is not dispositive. On the whole and in light of the deference we
give the superior court, the court did not abuse its discretion by finding that
Armenta failed to meet his burden of proving discrimination in the State’s
strike of Juror 83.
CONCLUSION
¶21 For the foregoing reasons, we affirm Armenta’s convictions
and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
7