Filed 11/1/23 P. v. Collins CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084096
Plaintiff and Respondent,
(Super. Ct. No. BF156917A)
v.
DONTRELL COLLINS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C.
Leal, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
“[E]valuating claims that a prosecutor used peremptory challenges in violation of
the Equal Protection Clause” involves a “three-part process ….” (Miller-El v. Cockrell
(2003) 537 U.S. 322, 328 (Miller-El).) “First, a defendant must make a prima facie
showing that a peremptory challenge has been exercised on the basis of race. [Citation.]
Second, if that showing has been made, the prosecution must offer a race-neutral basis for
striking the juror in question. [Citation.] Third, in light of the parties’ submissions, the
trial court must determine whether the defendant has shown purposeful discrimination.” 1
(Id. at pp. 328-329.)
This appeal involves steps two and three. In a prior appeal, we found error at the
first step and directed the trial court to “attempt to conduct the second and third … steps.”
(Collins, supra, 60 Cal.App.5th at p. 556.) “If,” we explained, “the [trial] court [found]
that, due to the passage of time or any other reason, it [could not] adequately address the
issues … or make a reliable determination, or if it determine[d] that the prosecutor
exercised … peremptory challenges improperly, it should set the case for a new trial. If it
[found] the prosecutor exercised … peremptory challenges in a permissible fashion, it
should reinstate the judgment.” (Ibid.)
After remand, the trial court concluded it could fairly conduct steps two and three.
It then found Dontrell Collins failed to prove purposeful discrimination and reinstated the
judgment as directed. Collins now challenges those conclusions. We affirm.
BACKGROUND
Underlying Facts
“Collins drove his car at nearly 100 miles per hour and collided into a vehicle
carrying three young women; two of them died. A test of his blood revealed the presence
of alcohol and PCP. He was convicted of many crimes, including two counts of murder.”
(Collins, supra, 60 Cal.App.5th at p. 544.)
1 Any peremptory challenge against a protected group violates the Equal
Protection Clause. (People v. Collins (2021) 60 Cal.App.5th 540, 551, fn.7 (Collins).)
Because this case involves a prosecutor allegedly striking a juror on the basis of race, the
quoted language throughout this opinion tracks that common circumstance.
2.
Prior Appeal
Previously, Collins “argue[d] the court erred in denying his Batson/Wheeler2
motion to challenge the prosecutor’s excusal of a prospective Black juror.” (Collins,
supra, 60 Cal.App.5th at p. 546.) We found merit in the argument.
This court stated the trial court’s reasoning in denying the motion was
“unsupported and contradicted by the record.” (Collins, supra, 60 Cal.App.5th at
pp. 552-553.) For example, we recognized a concern about the prospective juror’s
familiarity with “ ‘potential evidence in [the] case’ applied equally to [another] juror the
prosecutor accepted ….” (Id. at p. 553.) We also noted the concerns underlying the
prospective juror’s “prior law enforcement contacts” were logically flawed. (Ibid.)
Particularly important were facts that the prospective juror’s law enforcement contacts
were not meaningfully explored and “the prosecutor accepted seven other jurors with
similar law enforcement contacts or experiences ….” (Ibid.)
In finding the record supported “ ‘a prima facie case of discrimination,’ ” we
recognized “ ‘[t]he fact that the prosecutor volunteered one or more nondiscriminatory
reasons for excusing the juror is of no relevance at the first’ ” step. (Collins, supra,
60 Cal.App.5th at p. 552.) Similarly, we acknowledged “ ‘[a] reason that makes no sense
is nonetheless’ ” a valid reason as long as it is genuine and nondiscriminatory.” (Id. at
p. 554, fn. 11.) Genuineness, however, “is not relevant to defeating a prima facie
case ….” (Ibid.)
Remand
On remand, the prosecutor filled approximately 300 pages3 in the record
explaining his thought process during jury selection. He also introduced into evidence
2 Batson v. Kentucky (1986) 476 U.S. 79, 106; People v. Wheeler (1978) 22 Cal.3d
258.
3 Our background summarizes the prosecutor’s remarks for context. It is not a
verbatim recitation of every individual point or word.
3.
his contemporaneous notes on each juror.4 At the outset, the prosecutor noted the juror-
at-issue’s “excusal … was intricately linked to the facts of [the] case” and mentioned
“jury selection happens very fast” so his “notes” did not encapsulate “exactly what [he]
was thinking …..”
The prosecutor emphasized that the biggest “issue in this case” was mental
health—“was it PCP or was it … schizophrenia?” The prosecutor believed Collins’s
mental health defense—if presented—was based on “document[ation] by … mental
health workers in [a] correctional facility.” These workers, he explained, were “like” the
prospective juror who worked as a “psych tech” at the California Department of
Corrections and Rehabilitation.
The prosecutor was “very, very concerned about the fact that [he would] have to,”
to undermine a probable defense, “attack [the prospective juror’s] profession …
indirectly ….” He found it challenging to discredit “mental health workers in
correctional facilities” with the prospective juror sitting on the jury. He believed she was
“more inclined to accept” a mental health defense because the evidence “line[d] up with
the world she [knew].” The fact her “own cousin [was] incarcerated” for a crime
“result[ing] from … a mental breakdown … reinforc[ed]” that concern.
The reason the prosecutor did not specifically question the prospective juror, he
said, was because he neither wanted to lend credence to the mental health defense nor did
he wish to ask an objectionable question relating to “her perspectives ….” He also stated,
4 For the prospective juror at issue, the prosecutor’s notes verbatim read: “Psyc
Tech At CDC. Single 7yrold daughter. Cartoon te-shirt. Responds with noods. Deales
with mental health inmates[.]” (Multiple errors in original.)
4.
“[T]hat field had sort of been plowed,”5 meaning he felt he “had enough information …
to make an informed decision and … additional follow-up” would not help.6
Another issue for the prosecutor was the prospective juror’s ambiguity about her
ability to follow the court’s instructions. For example, while she answered she could rely
solely on the evidence in the case, she also said “if it wasn’t correct, [she] would show
proof of what they said wasn’t correct, like if [she] could pull it up on the Internet or
something [and] say look, this was wrong ….” Also troubling was the fact “the rest of
the jurors” knew about her profession because they might seek her opinion
notwithstanding the court’s instructions.
Last, the prosecutor explored the differences he discerned between the prospective
juror at issue and other jurors. One juror with experience in mental health was not
objectionable because he did not work in a “correctional” setting, like the prospective
juror. Another’s relative’s crime was neither violent nor “stemm[ed] from mental
illness,” unlike the prospective juror’s cousin.
Finally, another juror comparable to the prospective juror was strategically
deemed acceptable because “it was extremely unlikely that the defense was going to keep
[that] juror.” The prosecutor noted numerous other “offsetting characteristics” between
various jurors throughout the hearing.7
A juror with a prior “first-degree burglary” conviction deemed acceptable, for
example, “[took] the cake” “if … measur[ed] … against” the prospective juror’s “petty
theft prior ….” Admittedly, the prosecutor “ha[d] a hard time explaining why” petty theft
in particular “resona[ted]” as a concern.
5 The “field” presumably refers to the prospective juror’s answer she could set her
profession and experience aside by relying solely on the evidence presented in court.
6 The prosecutor explained he had “the luxury … of being able to [ask questions]
after the Court’s questions and the defense questions ….”
7 Being “married,” for example, was a common “offsetter.”
5.
In sum, the prosecutor stated he “evaluat[ed a potential juror’s] risk” “ in totality.”
Relative to the prospective juror, neither the “prior petty theft” nor “the cousin who was
incarcerated” was “determinative.” Her “position as a psych tech, combined with other
things … related to [her] profession,” however, were a dealbreaker.
Arguments
Collins’s attorney first argued he was at “a disadvantage” because he “wasn’t
present at the trial.”8 He lamented the prosecutor’s ability “to comment … on …
demeanor,” because he himself did not “have the ability to do that.” Multiple times, he
highlighted inconsistencies and pointed out flaws in the prosecutor’s logic.
For example, Collins’s attorney noted the prosecutor believed a juror whose
parents “were [both] arrested” was more favorable than the prospective juror whose
“cousins were arrested ….” He also argued a “first-degree burglary” conviction was a
“much greater concern” than “petty theft ….”
Ultimately, Collins’s attorney reemphasized his “disadvantage” from not being “in
the courtroom” during the trial.9 He concluded by claiming “the Court [was] in the
position of assessing the credibility of reasons that originated with the Court.”
The prosecutor directly rebutted some of Collins’s counsel’s criticisms. He added
that the original trial counsel “could have [been] called … as a witness” if necessary.
Ruling
The court began by finding there was “a sufficient record … to adequately” rule
on the issues, partly because the prospective juror’s “demeanor while in court [was]
not … an issue.” In other words, the written record was sufficient, and courtroom
8 Collins was represented on remand by counsel different than at trial.
9 This comment specifically related to the prosecutor’s written note the
prospective juror was wearing a cartoon-type “T-shirt.” The prosecutor, for his part,
disavowed relying on the T-shirt to justify the strike because he had no “independent
recollection of that fact ….”. The court likewise “set[] aside the T-shirt observation ….”
6.
observations of the prospective juror were immaterial. It acknowledged it “must
determine the genuineness of the [prosecutor’s] proffered explanations” and explained it
had “observed the demeanor and sincerity of the prosecutor” “throughout [the]
hearing ….”
In answering that inquiry, the court credited the prosecutor’s concern about
“the … anticipated defense involving mental illness.” The credited concern was
buttressed by the fact the prosecutor filed “in limine motions,” prior to jury selection,
seeking to limit “mental illness” evidence. The court also accepted the prosecutor’s
“explanation … as to why he did not ask certain questions” of the prospective juror.
Finally, the court agreed with the prosecutor “the differences” between the
prospective juror at issue and the other juror with a “similar profession[]” “were
significant,” i.e., working in “a custodial setting” versus “a non-custodial setting.” The
court subsequently concluded the prosecutor “appear[ed] credible” in explaining “his
reasons for accepting and excusing jurors in this case.” It then reinstated the judgment as
directed.10
DISCUSSION
Did the trial court err in finding it could proceed with concluding the
Batson/Wheeler motion? Did the trial court err in holding there was no discrimination?
The answer to both is “no.”
I. Motion Properly Concluded
Collins argues the trial court erred in denying, after remand, a motion for new
trial. The People contend “[t]he trial court did not abuse its broad discretion” in denying
the motion. We agree with the People.
10 Consistent with our directive to strike certain enhancements, Collins was
sentenced to serve 70 years, four months to life in state prison.
7.
A. Additional Background
After remand, and prior to the hearing summarized above, Collins’s attorney filed
a nonstatutory motion for new trial. The motion asserted a new trial was warranted “due
to the passage of time,” because “an accurate credibility assessment [could not] be
conducted,” and because “the prosecutor [was] not credible ….”
The trial court denied the motion, reasoning it was not “impossible for [it] to judge
the sincerity of any explanation the prosecutor” might provide and a sufficient record
existed to allow counsel on remand “to participate in” the Batson/Wheeler motion. It
later repeated a similar ruling during the full hearing, as described above, because
counsel renewed the argument.
B. Analysis
The decision to grant or deny a new trial due to an inability to conclude a
Batson/Wheeler motion after remand presents a mixed question of law and fact. A
reviewing court independently answers the question. (See People v. Tran (2022)
13 Cal.5th 1169, 1231; People v. Ault (2004) 33 Cal.4th 1250, 1261-1262 [“protect[ing a]
party’s right to a fully impartial jury” requires “independent review of the trial court’s
reasons for denying a new trial motion”].)
Here, we do not find a new trial was justified due to the passage of time or an
inability to assess the prosecutor’s credibility. The only piece missing from jury selection
was Collins’s trial counsel. The judge was present, the prosecutor was present, Collins
was present, a complete transcript existed, and the prosecutor’s notes were available.
Apparently, Collins’s original trial counsel was also available if needed for investigation
or testimony.11
11 When, after remand, the prosecutor suggested Collins’s trial counsel was
available “as a witness,” there was no objection or refutation.
8.
It is true that Collins’s counsel after remand was new to the case. That does not
mean, however, it was impossible to investigate the matter through Collins himself, the
original trial attorney, any other person present during jury selection, and the record
itself. (Cf. People v. Johnson (2006) 38 Cal.4th 1096, 1102 [unavailability of original
trial judge “does not make a limited remand impossible.”].)
Collins’s last point—that the prosecutor was not credible—is simply irrelevant to
whether the record is sufficient to proceed with concluding a Batson/Wheeler motion
after remand.12 Credibility is the ultimate issue at step three, which we turn to next.13
II. No Error in Finding Prosecutor Credible
“At the third step of the Batson/Wheeler analysis, the trial court evaluates the
credibility of the prosecutor’s … explanation. Credibility may be gauged by examining
factors including but not limited to ‘ “the prosecutor’s demeanor; by how reasonable, or
how improbable, the explanations are; and by whether the proffered rationale has some
basis in accepted trial strategy.” ’ ”14 (People v. Gutierrez (2017) 2 Cal.5th 1150, 1168
(Gutierrez).)
“ ‘ “[T]he decisive question” ’ ” is whether the prosecutor “ ‘ “should be believed.
There will seldom be much evidence bearing on that issue, and the best evidence often
will be the demeanor of the [prosecutor.]” ’ [Citation.] ‘A trial court is best situated to
12 Collins also asserts “[t]he [trial] court [originally] provided the prosecutor with
a roadmap of reasons it thought acceptable, so the court [was] now in a position to
evaluate itself, which is an impossible task.” We disagree. Even if we assume the
prosecutor simply parroted the trial court, that does not mean the prosecutor’s credibility
was neither not at issue nor impossible to discern, as discussed post.
13 It does not appear Collins challenges the step two inquiry, i.e., that the
prosecutor provided a race-neutral rationale. Were we to address the issue, we would
readily find the prosecutor’s rationale was race-neutral.
14 “The Constitution forbids discriminatory strikes against jurors in all cases, civil
and criminal, and applies equally to defendants, plaintiffs, and prosecutors alike.”
(Collins, supra, 60 Cal.App.5th at p. 551, fn.7.) We use language referring to prosecutors
simply because that is the situation in this case.
9.
evaluate … the credibility of the prosecutor ….’ ” (People v. Baker (2021) 10 Cal.5th
1044, 1077 (Baker).) “ ‘[W]hen the trial court makes a sincere and reasoned effort to
evaluate [credibility], the reviewing court defers to its conclusions on appeal, and
examines only whether substantial evidence supports them.’ ” (Ibid.; Miller-El, supra,
537 U.S. at p. 340 [“ ‘[T]he trial court’s decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort accorded great deference on
appeal’ and will not be overturned unless clearly erroneous.”].)
The trial court in this case did not err in finding the prosecutor credible. The
prosecutor’s explanations, at the time the original objection was made, and after remand,
remain consistent. Importantly, they are consistent with the prosecutor’s
contemporaneous notes about the prospective juror, suggesting strongly they were not the
product of afterthought.
The prosecutor’s concerns about mental health evidence and the prospective
juror’s reluctance or willingness to follow the court’s instructions are legitimate.
Although in the prior appeal we found logic lacking on these points, especially when
compared to other jurors, we did not assess the prosecutor’s genuineness or sincerity.
Indeed, we explicitly acknowledged “the validity of the prosecutor’s justification
is not relevant to defeating a prima facie case” at step one. (Collins, supra,
60 Cal.App.5th at p. 554, fn. 11.) We also noted “ ‘ “[a] reason that makes no sense is
nonetheless” ’ a valid reason as long as it is genuine and nondiscriminatory.” (Ibid.)
That applies well to the prosecutor’s most questionable rationale: the prospective juror’s
prior petty theft.15
The prosecutor himself acknowledged explaining why petty theft was more
concerning than first degree burglary was difficult to articulate. We find it hard to
15 Again, it is unclear if the petty theft was indeed a prior. How the case resolved,
or if there even was a case, is not disclosed in the record.
10.
understand. Were this the only rationale, it might not withstand scrutiny. The
prosecutor, however, disavowed ascribing determinative weight to any singular concern,
focusing instead on a juror’s potential “in totality.”
The judge credited the prosecutor’s total explanation, particularly the prospective
juror’s experience with mental health in a custodial setting. Having reviewed the entire
record, we find substantial evidence supports that conclusion.16 (Baker, supra,
10 Cal.5th at p. 1077.)
DISPOSITION
The judgment is affirmed.
SNAUFFER, J.
WE CONCUR:
PEÑA, Acting P. J.
MEEHAN, J.
16 We previously engaged in comparative juror analysis in the prior appeal. (E.g.,
Collins, supra, 60 Cal.App.5th at pp. 548-555.) That analysis, in our view, does not and
cannot conclusively answer whether the prosecutor in this case was credible. (Cf..
Gutierrez, supra, 2 Cal.5th at p. 1174 [“Court of Appeal erred in refusing to undertake
comparative juror analysis.”].)
Beyond substantial evidence, we find no occasion to conclude the prosecutor was
less than truthful. Although the prosecutor’s repeated references to “prior petty theft”
lack a certain logic, in our view that is not fatal to his credibility on this record. (See
Collins, supra, at 60 Cal.App.5th at p. 553 [prospective juror “ ‘charged with a petty theft
when [she] was younger,’ [but] … never asked how the charges were resolved” nor did
record “otherwise disclose the answer[]”]; People v. Stanley (2006) 39 Cal.4th 913,
936 [“ ‘[a] reason that makes no sense is nonetheless’ ” a valid reason as long as it is
genuine and nondiscriminatory.].)
11.