Filed 3/18/22 P. v. Ming CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306503
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA095989)
v.
TUNG MING,
Defendant and Appellant.
__________________________________
THE PEOPLE, B307448
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA095989)
v.
DARRYL LEANDER HICKS, JR.,
Defendant and Appellant.
APPEALS from judgments of the Superior Court of Los
Angeles County. Hector M. Guzman and Amy N. Carter, Judges.
Affirmed as to Defendant and Appellant Tung Ming. Affirmed
and remanded with directions as to Defendant and Appellant
Darryl Leander Hicks, Jr.
Robert S. Altagen and Robert C. Moest for Defendant and
Appellant Tung Ming.
Carlo Andreani, under appointment by the Court of Appeal,
for Defendant and Appellant Darryl Leander Hicks, Jr.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Colleen M. Tiedemann and David A.
Voet, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Tung Ming and Darryl Leander Hicks, Jr. appeal the
judgments entered following a jury trial in which both were
convicted of vehicular manslaughter (count 1; Pen. Code,1 § 192,
subd. (c)(2)) and reckless driving on a highway causing specified
injury (count 2; Veh. Code, § 23103, subd. (a)). As to count 1, the
jury found true the allegation that Hicks fled the scene of the
crime (Veh. Code, § 20001, subd. (c)), and as to count 2, the jury
found true two allegations that in committing the offense both
defendants caused specified injury to Jesse E. Esphorst and Jesse
F. Esphorst2 pursuant to Vehicle Code section 23105. In
1 Undesignated statutory references are to the Penal Code.
2Because the victims share the same first and last names,
we refer to them by their first names and middle initials.
2
addition, Hicks was convicted of two counts of hit-and-run driving
resulting in death or serious injury to another person (counts 3 &
4; Veh. Code, § 20001, subd. (b)(2) & (b)(1)), hit-and-run driving
resulting in property damage (count 5; Veh. Code, § 20002, subd.
(a)), and one misdemeanor count of driving when privilege
suspended or revoked (count 6; Veh. Code, § 14601.1, subd. (a)).
The trial court sentenced Ming to a term of two years eight
months in state prison, and Hicks to a term of 11 years in state
prison.
Both appellants contend the trial court committed
reversible error by excluding proffered expert testimony on the
issue of causation based on the victims’ failure to wear seat belts
and the 911 dispatcher’s violation of training and protocols for
911 emergency operators in handling Ming’s 911 call. Ming
separately contends the trial court erred in failing to give a
unanimity instruction in connection with count 2, and both the
prosecutor and trial court acted under the apparent
“misperception that the case was about deliberate misconduct,
like street racing.”3 Hicks separately contends the trial court
abused its discretion and violated his constitutional rights to a
fair and unbiased jury when it limited voir dire questions and
3 This claim lacks a reasoned argument, citation to the
record, or any discussion of legal authority. We therefore deem
the issue forfeited. (Holden v. City of San Diego (2019) 43
Cal.App.5th 404, 418–419; Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836, 852 [“When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as
waived”].)
3
denied his motion under Batson/Wheeler.4 According to Hicks,
the Batson/Wheeler error is reversible per se. We reject
appellants’ contentions and affirm the judgments of conviction as
to both Ming and Hicks.
Hicks raises two additional sentencing issues. He first
contends that the trial court improperly relied on the fact that he
fled the scene underlying the enhancement allegation to impose
the high term, in violation of Penal Code section 1170,
subdivision (b)(5). Hicks has forfeited this issue by failing to
object at the sentencing hearing. (People v. Gonzalez (2003) 31
Cal.4th 745, 751 (Gonzalez).) However, Hicks also contends that
Senate Bill No. 567s recent amendments to section 1170,
subdivision (b) concerning the trial court’s discretion to impose an
upper term apply retroactively to him and require remand for
resentencing. We agree and therefore remand the matter to the
trial court with directions to resentence Hicks in accordance with
Penal Code section 1170, subdivision (b), as amended by Senate
Bill No. 567, effective January 1, 2022. (Sen. Bill No. 567 (2021–
2022 Reg. Sess.) ch. 731, § 1.3.)
FACTUAL BACKGROUND
Around 10:00 p.m. on March 7, 2017, Ming was driving his
black Mercedes SUV near Crenshaw Boulevard when a silver
Audi sedan driven by Hicks struck Ming’s vehicle and drove
away. Ming followed the Audi as it accelerated northbound on
Crenshaw Boulevard. Both vehicles were traveling at 80 to 85
miles per hour. As he continued his pursuit of the Audi, Ming
called 911 and reported a hit and run. Ming told the 911
4Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).
4
operator he was chasing the vehicle, and the dispatcher asked for
the license plate number. Ming replied that he could not see it
and would try to get closer; the operator told him to give her the
number when he was able. After ascertaining Ming’s location,
the operator said, “Okay. Is there any way you can get a license
plate on the vehicle? Because as soon as you can, I want you to
stop chasing him.” The 911 call lasted between one and two
minutes.
As Ming and Hicks were speeding north on Crenshaw
Boulevard, Jesse F. was driving his white Sienna minivan
southbound on Crenshaw with his son, Jesse E., in the front
passenger seat. At the intersection of Crenshaw Boulevard and
Crest Road, Crenshaw had three lanes and a dedicated left-turn
lane with a traffic signal. Jesse F. pulled into the left turn lane
and waited for the green arrow to make a left turn onto Crest
Road. Witnesses saw two vehicles, a light-colored car and a black
SUV, hurtling down Crenshaw Boulevard at 80 to 100 miles per
hour. As the Audi and the SUV approached the intersection, the
traffic light for Crenshaw turned red and Jesse F. started his left
turn. Neither Hicks nor Ming stopped at the red light. Ming was
still on the phone with the 911 dispatcher when Hicks’s Audi
struck the front of Jesse F.’s van, causing it to spin nearly 360
degrees. Within seconds Ming’s SUV hit the van. After the
collision the SUV veered to the right, crashed into the bushes,
and struck a cement light pole, knocking it down. The Audi did
not stop.
Jesse F. and Jesse E. were thrown against the passenger-
side door of the van, and Jesse E.’s head, arms, and torso were
hanging facedown out of the passenger window. Both were
nonresponsive. Jesse E. died at the scene, and Jesse F. suffered a
5
right nasal bone fracture, a scalp laceration requiring 10 staples,
and a small subarachnoid hemorrhage in the right cerebral
hemisphere.
The Audi was located later that night near Pacific Coast
Highway about three quarters of a mile from Crenshaw
Boulevard and Crest Road. The vehicle was registered to Hicks.
It bore damage consistent with the collision described by
witnesses, and one of the witnesses identified the Audi as the
first car to strike the van.
DISCUSSION
I. The Trial Court Properly Excluded Expert
Testimony and Argument Regarding the
Victims’ Failure to Wear Seat Belts
Both appellants contend the trial court committed
reversible error by excluding expert testimony that Jesse E.
would have survived the crash had he been wearing a seat belt,
and his failure to wear a seat belt was the sole cause of his death.
Hicks further claims the error violated appellants’ Sixth and
Fourteenth Amendment rights to a fair trial, a meaningful
opportunity to present a complete defense, and compulsory
process. We disagree: The trial court did not abuse its discretion
in excluding the evidence. Appellants’ grossly negligent conduct
was undeniably a substantial factor in Jesse E.’s death, and any
concurrent cause which may have contributed to the death does
not absolve appellants of criminal liability. Further, the court’s
evidentiary ruling did not impermissibly infringe on appellants’
rights to present a defense or otherwise violate their
constitutional rights. (See People v. Johnson (2022) 12 Cal.5th
544, 607 (Johnson).)
6
A. Relevant proceedings
Prior to trial the prosecution sought to exclude evidence
that neither Jesse E. nor Jesse F. was wearing a seat belt at the
time of the collision, on the ground that the failure to wear a seat
belt was not the cause of death or injury, and the evidence was
therefore irrelevant. The prosecutor argued that driving around
without a seat belt does not cause injury or death, whereas injury
or death is likely when another driver’s gross negligence results
in a collision. The prosecutor further asserted that even if the
failure to wear a seat belt could be deemed a contributing cause
of the victims’ respective injuries and death, it was not a
superseding cause that broke the causal link between appellants’
conduct and the death and injuries.
Appellants countered that because proximate cause was an
element of the offense, whether Jesse E.’s death resulted from his
failure to wear a seat belt was an issue for the jury. Defense
counsel argued that since it is an infraction not to wear a seat
belt in a moving vehicle, the defense should be able to offer
evidence that Jesse E. would have survived the collision had he
been following the law and wearing a seat belt. In order to rebut
the People’s theory of causation, appellants claimed they were
entitled to present expert testimony that the sole cause of
Jesse E.’s death was his failure to wear a seat belt.
Citing People v. Wattier (1996) 51 Cal.App.4th 948
(Wattier), which it found to be “on all fours” with the instant case,
the trial court ruled the proposed expert testimony was irrelevant
to the issue of causation. As the court explained, “Not wearing a
seat belt is not going to cause someone to die. Getting hit by a
vehicle at high speed is more than likely going to cause someone
to die.” The court denied the defense request to present expert
7
testimony that Jesse E. would have survived the collision if he
had been wearing a seat belt as well as any argument to the
effect that the failure to wear a seat belt proximately caused or
contributed to Jesse E.’s death. However, the court did not
exclude any mention of seat belt use that might come up
naturally in testimony.
B. Applicable legal principles
Only relevant evidence is admissible. (Evid. Code, § 350.)
“Evidence is relevant if it has a ‘tendency in reason to prove or
disprove any disputed fact that is of consequence to the
determination of the action.’ (Evid. Code, § 210.)” (People v.
Wright (2021) 12 Cal.5th 419, 448.) Under Evidence Code section
352, a trial court has wide discretion to exclude evidence, even
relevant evidence, “ ‘if its probative value is substantially
outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.’ ” (People v. Dworak (2021) 11 Cal.5th
881, 899.) As our Supreme Court has explained, “we review trial
court decisions about the admissibility of evidence for abuse of
discretion. Specifically, we will not disturb a trial court’s
admissibility ruling ‘ “except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of
justice.” ’ ” (People v. Morales (2020) 10 Cal.5th 76, 97.)
In order to obtain a conviction for gross vehicular
manslaughter under section 192, subdivision (c)(1), the People
must prove that while the defendant was driving a vehicle he or
she committed a misdemeanor or infraction with gross
negligence, and “[t]he defendant’s grossly negligent conduct
8
caused the death of another person.” (CALCRIM No. 592; Zemek
v. Superior Court (2020) 44 Cal.App.5th 535, 552 [“ ‘An element
of homicide is that the defendant’s criminal act or omission be the
proximate cause of the death’ ”] (Zemek).) “In general,
‘[p]roximate cause is clearly established where the act is directly
connected with the resulting injury, with no intervening force
operating.’ ” (People v. Cervantes (2001) 26 Cal.4th 860, 866
(Cervantes).) “ ‘A “cause of [death] is an act or omission that sets
in motion a chain of events that produces as a direct, natural and
probable consequence of the act or omission the [death] and
without which the [death] would not occur.” ’ ” (Zemek, at p. 552.)
As our Supreme Court has explained, “the ‘defendant may also be
criminally liable for a result directly caused by his or her act,
even though there is another contributing cause.’ ” (Cervantes, at
pp. 866–867.)
While an “independent” intervening cause will absolve a
defendant of criminal liability, a “dependent” intervening cause
will not. (Zemek, supra, 44 Cal.App.4th at p. 552–553.) “ ‘ “If an
intervening cause is a normal and reasonably foreseeable result
of defendant’s original act the intervening act is ‘dependent’ and
not a superseding cause, and will not relieve defendant of
liability.” ’ ” (Cervantes, supra, 26 Cal.4th at p. 871.) “ ‘[I]n order
to be “independent” the intervening cause must be “unforeseeable
. . . an extraordinary and abnormal occurrence, which rises to the
level of an exonerating, superseding cause.” ’ ” (Ibid.; Zemek, at
pp. 552–553.) Thus, an intervening, superseding cause will
relieve a defendant of criminal liability only if the act “ ‘breaks
the chain of causation’ after the defendant’s original act” (People
v. Autry (1995) 37 Cal.App.4th 351, 361 (Autry)), such that “ ‘the
defendant’s act is no longer a substantial factor in producing the
9
injury.’ ” (People v. Zarazua (2008) 162 Cal.App.4th 1348, 1361–
1362, quoting People v. Burnett (2003) 110 Cal.App.4th 868, 877.)
In a criminal prosecution, the contributing negligence of
the victim does not relieve the defendant of liability, unless the
victim’s conduct was the sole or superseding cause of the death.
(Autry, supra, 37 Cal.App.4th at p. 360.) A “defendant remains
criminally liable if either the possible consequence [of the
defendant’s grossly negligent conduct] might reasonably have
been contemplated or the defendant should have foreseen the
possibility of harm of the kind that could result from his act.”
(People v. Crew (2003) 31 Cal.4th 822, 847.)
C. The trial court did not abuse its discretion by
excluding expert testimony and other evidence regarding
Jesse E. and Jesse F.’s failure to wear seat belts
In excluding evidence of the victims’ failure to wear seat
belts, the trial court relied on Wattier, supra, 51 Cal.App.4th 948.
In that case, while driving his vehicle at excessive speeds in a
dangerous and erratic manner on the freeway, the defendant
struck another vehicle, forcing it off the road and causing it to flip
over. (Id. at p. 951.) An eight-year-old boy who was riding in the
passenger seat of the other vehicle without a seat belt was killed.
(Ibid.) On the prosecution’s motion, the trial court excluded any
mention at trial that the boy was not wearing a seat belt at the
time of the collision. (Id. at pp. 952–953.)
The appellate court upheld the trial court’s ruling,
reasoning that “[f]acts attacking legal causation are only relevant
if the defendant’s act was not a substantial factor in producing
the harm or injurious situation. [Citation.] The defendant is
liable for a crime irrespective of other concurrent causes
contributing to the harm [citation], and particularly when the
10
contributing factor was a preexisting condition of the victim.”
(Wattier, supra, 51 Cal.App.4th at p. 953.) Wattier emphasized
that “a superseding cause must break the chain of causation after
the defendant’s act before he or she is relieved of criminal
liability for the resulting harm.” (Ibid.)
Wattier in turn relied on the decision in Autry, supra, 37
Cal.App.4th 351, in which the defendant, who was drunk, drove
his car into two highway construction workers, killing them both.
Autry held it irrelevant to the defendant’s criminal liability that
the construction company could have provided a barrier in the
form of an attenuator truck to better protect its workers. “[T]he
preexisting failure to provide a barrier which would have
prevented the effects of appellant’s conduct cannot be an
intervening or superseding cause, as a matter of law. The failure
to provide an attenuator did not ‘break’ the chain of causation;
rather it was an absence of intervening force, which failed to
break the chain of the natural and probable consequences of
appellant’s conduct. . . . ‘[D]efendant cannot complain because
no force intervened to save him from the natural consequences of
his criminal act.’ ” (Id. at p. 361, original italics, quoting People
v. McGee (1947) 31 Cal.2d 229, 243 [following a shooting by the
defendant, a delay in providing medical treatment to the victim
“is not in fact an intervening force; it cannot in law amount to a
supervening cause” of death]; Wattier, supra, 51 Cal.App.4th at
p. 953.)
We are persuaded by the Wattier court’s analysis and find
that it compels rejection of appellants’ claim that the trial court
abused its discretion. That appellants’ gross negligence in
colliding with the Esphorsts’ vehicle was a substantial factor in
producing Jesse E.’s death and Jesse F.’s injuries is beyond
11
dispute. The victims’ failure to wear seat belts was a preexisting
condition at the time of the collision, which did not break the
chain of causation. As the Wattier and Autry courts concluded,
the absence of an intervening force⎯seat belts⎯to prevent the
natural and probable consequences of appellants’ grossly
negligent conduct is not, as a matter of law, a superseding cause.
(Wattier, supra, 51 Cal.App.4th at p. 953; Autry, supra, 37
Cal.App.4th at p. 361.)
Hicks’s efforts to distinguish Wattier fail. Hicks first points
out that the child killed in Wattier was younger than Jesse E. and
had no legal obligation to wear a seat belt. This distinction is
completely irrelevant to the issue of causation. Next, Hicks
deceptively claims that, in contrast to this case, the defense
expert actually testified in Wattier. He fails to mention, however,
that the defense expert did not testify about or offer any opinion
regarding the child’s failure to wear a seat belt. Rather, the
expert “testified that the manner in which the [victim’s vehicle]
left the road suggested that it was hit by some other vehicle as
well.” (Wattier, supra, 51 Cal.App.4th at p. 952.) Third, Hicks’s
assertion that, unlike the defendant in Wattier, appellants
“repeatedly and expressly disclaim[ed] contributory negligence as
a defense” is belied by the record: By arguing that the victims’
failure to wear seat belts was the superseding or sole cause of
their injuries, appellants were attempting to use the victims’ own
negligence to avoid criminal liability for their grossly negligent
conduct. This is precisely how application of the doctrine of
contributory negligence works in tort cases, and calling it
something else does not negate appellants’ reliance on it.
Hicks further suggests we reject Wattier because it conflicts
with “the seat belt precedents of Housley v. Godinez (1992) 4
12
Cal.App.4th 737 [(Housley)] and People v. Hansen (1992) 10
Cal.App.4th 10[65] [(Hansen)].” Both cases are inapposite.
Housley was a personal injury action arising out of an automobile
collision. The defense asserted contributory negligence in the
plaintiff’s failure to wear a seat belt and knowingly and
voluntarily assuming a risk of accident by riding in the vehicle
operated by the defendant. (Housley, at p. 739.) The jury found
the plaintiff 30 percent contributorily negligent for choosing not
to wear a seat belt. (Id. at pp. 739, 741.) As a civil case involving
tort concepts of contributory negligence and assumption of risk,
Housley is irrelevant to the present criminal case. As discussed
above and in Wattier, a victim’s failure to wear a seat belt does
not break the chain of causation after the defendant’s negligent
act, and therefore does not, as a matter of law, constitute a
superseding cause that relieves a defendant of criminal liability
for the resulting harm. (Wattier, supra, 51 Cal.App.4th at
p. 953.)
Hansen also has no application to the instant case. In
Hansen, one of the passengers in his car died when the
defendant, who was intoxicated, drove the vehicle off a cliff.
(Hansen, supra, 10 Cal.App.4th at p. 1068.) Defendant was
convicted of gross vehicular manslaughter while intoxicated, and
argued on appeal that the trial court had erred in allowing the
prosecutor to argue gross negligence based in part on defendant’s
failure to ensure his passengers were wearing seat belts. (Id. at
p. 1067.) Hansen is clearly distinguishable: There was no claim
in that case that the passenger’s failure to wear a seat belt was
the sole cause of death, nor did appellants’ gross negligence arise
out of any duty to ensure that Jesse E. was wearing a seat belt.
13
Finally, Hicks contends that the trial court’s erroneous
ruling violated his constitutional rights. Because we find the
court acted within its discretion in excluding evidence of the
victims’ failure to wear seat belts, we must reject the claim.
Courts have long held that “ ‘ “the ordinary rules of evidence do
not impermissibly infringe on the accused’s right to present a
defense. Courts retain, moreover, a traditional and intrinsic
power to exercise discretion to control the admission of evidence
in the interests of orderly procedure and the avoidance of
prejudice.” ’ ” (Johnson, supra, 12 Cal.5th at p. 607, quoting
People v. Babbitt (1988) 45 Cal.3d 660, 683.)
II. The Trial Court Properly Excluded Evidence
Regarding 911 Operator Protocol
Appellants contend the trial court committed reversible
error by excluding expert testimony concerning the training and
protocols for 911 emergency operators to show that the 911
dispatcher wrongly directed Ming to continue pursuing Hicks.
Hicks further claims the error violated appellants’ Sixth and
Fourteenth Amendment rights. We disagree: The trial court
acted within its discretion in excluding the evidence as irrelevant
and inadmissible under Evidence Code section 352. In addition,
the court’s evidentiary ruling did not impermissibly infringe on
appellants’ constitutional rights. (See Johnson, supra, 12 Cal.5th
at p. 607.)
A. Relevant proceedings
Appellants sought to present an expert opinion that
standard 911 operator protocol and training require a 911
dispatcher to advise a driver not to engage in a pursuit of another
vehicle following a hit-and-run accident. Defense counsel argued
that the 911 operator to whom Ming spoke during his pursuit of
14
Hicks violated proper procedure by urging Ming to continue the
chase and get the license plate number of the Audi. Appellants
asserted the evidence that the operator encouraged Ming to
pursue Hicks was relevant: Because people generally view 911
operators as authority figures on par with law enforcement, the
operator’s instructions to Ming tended to negate the element of
gross negligence. Conceding that the 911 operator’s directions
and Ming’s reactions to them were relevant, the prosecution
stated that Ming’s 911 call would be played for the jury. But
whether the operator followed protocol during the call was
irrelevant to Ming’s state of mind or any other issue, and risked
confusing the issues for the jury under Evidence Code section
352.
The trial court excluded evidence of 911 dispatcher protocol
and training along with the proposed expert testimony, finding
under Evidence Code section 352 that the probative value of such
evidence, if any, was “substantially outweighed by the probability
that its admission [would] necessitate undue consumption of
time, [and] create substantial danger of undue prejudice, of
confusing the issues or of misleading the jury.” The court added,
however, that if Ming gave testimony that made the issue
relevant, the court would allow the defense to revisit the court’s
ruling.
B. The trial court did not abuse its discretion by
excluding expert testimony and other evidence regarding
911 operator policies, protocol, and training
The trial court’s decision to exclude evidence on this
patently collateral matter was correct. “A collateral matter has
been defined as ‘one that has no relevancy to prove or disprove
any issue in the action.’ ” (People v. Rodriguez (1999) 20 Cal.4th
15
1, 9.) As discussed above, we will not reverse a trial court’s
determination that evidence pertaining to a collateral matter
should be excluded absent a manifest abuse of the trial court’s
discretion resulting in a miscarriage of justice. (Id. at pp. 9–10;
People v. Thomas (2011) 51 Cal.4th 449, 485.)
Here, the trial court did not abuse its discretion in
excluding the proffered evidence and expert testimony regarding
911 operator policies, protocol, and training in handling
emergency calls from motorists. The relevant issue was whether
and to what extent the 911 operator’s instructions to Ming during
the car chase influenced Ming’s state of mind. By playing Ming’s
911 call during trial, evidence on that issue was admitted. But
unless Ming had testified that he knew the 911 operator was
violating standard protocol by telling him to follow Hicks and try
to get the license plate number, and that knowledge influenced
Ming’s decision to continue his pursuit, whether the operator
violated any policy, protocol, or training was completely
irrelevant: The effect of the operator’s instructions on Ming’s
state of mind would be the same regardless of the 911 operator’s
violation of any policy, protocol, or training.
The evidence was also inadmissible to show the 911
operator’s negligence was a contributory cause of the collision.
Like the seat belt evidence, evidence of a violation of 911
emergency policy, protocol, or training⎯while possibly relevant
in a civil lawsuit⎯is not relevant to causation in a criminal case.
The trial court also acted within its discretion in excluding
this evidence under Evidence Code section 352. The 911 operator
was not facing criminal charges, but the presentation of this
evidence would have, in effect, put him or her on trial, requiring
the jurors to act as a jury in a civil case and assign comparative
16
fault for the collision. The result would have been a trial within a
trial, which the trial court properly determined would necessitate
an undue consumption of time and would undoubtedly lead to
confusion of the issues.
In sum, the trial court appropriately exercised its discretion
to exclude the proffered evidence of the policies, training, and
protocol for 911 operators handling emergency calls from
motorists.
III. There Was No Instructional Error With Respect
to Count 2
Ming separately contends the trial court erred in
instructing on count 2 by failing specifically to direct the jury
that a unanimous verdict was required for the injury allegation
as to each victim.5 We disagree.
A. Relevant proceedings
Count 2 of the original information charged Ming with
reckless driving causing specific injury to Jesse E. in violation of
Vehicle Code sections 23103, subdivision (a) and 23105. Count 7
was added later, charging Ming with another count of the same
crime with specific injury to Jesse F. Before the jury began its
deliberations, count 7 was dismissed and count 2 was amended to
allege specific injury to both Jesse E. and Jesse F. under Vehicle
Code section 23105. Counsel for Ming agreed that the
amendment would not require any change to the jury
instructions, but the verdict form for count 2 would need to be
“fine-tuned” to include separate findings for each alleged victim.
5 Hicks has not joined in Ming’s assertion of this issue on
appeal.
17
The jury was instructed with CALCRIM No. 2200 on the
elements required to find Ming guilty of a violation of Vehicle
Code section 23103 as alleged in count 2. With respect to the
allegations of specific injury to Jesse E. and Jesse F. under
Vehicle Code section 23105 in count 2, the jury was instructed
with CALCRIM No. 3223: “If you find a defendant guilty of
reckless driving in count 2, you must then decide whether the
People have proved the additional allegation that when that
defendant committed that crime, he caused someone else to suffer
any of the following: a loss of consciousness, a concussion, a bone
fracture, a protracted loss or impairment of function of a bodily
member or organ, a wound requiring extensive suturing, a
serious disfigurement, brain injury or paralysis. [¶] The People
have the burden of proving this allegation beyond a reasonable
doubt. If the People have not met this burden, you must find that
the allegation has not been proved.”
In accordance with this instruction, the verdict form for
count 2 required the jury first to determine Ming’s guilt on the
charge of reckless driving on a highway in violation of Vehicle
Code section 23103, subdivision (a), and then to make separate
findings as to whether Ming’s commission of the offense caused a
specified injury to Jesse E. and/or a specified injury to Jesse F.
On the verdict form the jury marked the specified injury
allegations as to both victims “true,” and confirmed its findings
when the verdicts were read aloud in the courtroom.
B. No unanimity instruction was required
A criminal conviction requires a jury’s unanimous
agreement that the defendant is guilty of a specific crime. (People
v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, “when the evidence
suggests more than one discrete crime, either the prosecution
18
must elect among the crimes or the court must require the jury to
agree on the same criminal act.” (Ibid.; People v. Luo (2017) 16
Cal.App.5th 663, 679 [“the doctrine of election requires that when
the evidence suggests more than one discrete crime, either the
prosecution must elect which criminal act it seeks a conviction
on, or the court must instruct the jury that it is required to
unanimously agree which crime defendant has committed”].) The
trial court should give a unanimity instruction sua sponte when
the circumstances of the case warrant (People v. Covarrubias
(2016) 1 Cal.5th 838, 877) to eliminate the risk of a conviction in
the absence of a single offense which all the jurors agree the
defendant committed6 (Russo, at p. 1132). But a unanimity
instruction is required “ ‘ “only if the jurors could otherwise
disagree which act a defendant committed and yet [still] convict
him of the crime charged.” ’ ” (People v. Seaton (2001) 26 Cal.4th
598, 671.)
No unanimity instruction was warranted in this case
because the evidence showed only one discrete act of reckless
driving by Ming, which was alleged to have caused specified
injury to two separate victims. The instructions and verdict form
clearly required the jury to determine Ming’s guilt on the reckless
driving charge first, and then to make separate findings as to
whether Ming’s reckless driving caused particular injury to
Jesse F. and Jesse E.
6 The standard unanimity instruction, CALCRIM No. 3500,
tells the jury that the People have presented evidence of more
than one act to prove that the defendant committed the charged
offense and in order to convict, the jury must agree that the
People have proved that the defendant committed at least one of
the acts and agree on which act the defendant committed.
19
IV. The Trial Court Acted Within Its Discretion in
Limiting Voir Dire
Hicks contends the trial court abused its discretion and
violated his state and federal constitutional rights to
unprejudiced, impartial jurors by refusing to allow defense
counsel to ask prospective jurors their opinions about kneeling
protests by players at National Football League games and
whether Hicks would receive a fair trial if there were no African-
Americans on the jury. We find no abuse of discretion in the trial
court’s reasonable limitation on voir dire.
A. Relevant proceedings
During voir dire, Hicks’s counsel sought to discern
prospective jurors’ racial biases by asking their opinions about
former National Football League player Colin Kaepernick’s
kneeling protests during the national anthem at football games.7
Before any prospective juror could answer, the trial court
7 Counsel’s questioning about the prospective jurors’ views
on the kneeling controversy proceeded as follows:
“Anybody an NFL fan? A couple of hands. Everybody
aware that Los Angeles has two NFL teams? Even those of you
who didn’t raise your hand, how many people, show of hands, are
familiar with the kneeling controversy in the NFL? All right.
Everybody. Good. It rang a bell there.
“So as you probably, or may know, Colin Kaepernick was a
quarterback for the 49ers. He started this by kneeling during the
national anthem, and it’s very controversial. Some people agree
with it. Some disagree with it and it became an issue bigger than
the game that he played, and I’m going to go down the line. I’ll
start with one to make it easy.
“Do you have a problem with the kneeling during the
national anthem?”
20
interjected and called a sidebar. The court asked why this line of
questioning was appropriate. Counsel asserted he had a right to
ascertain prospective jurors’ religious and political beliefs.
Counsel explained the responses elicited would be relevant to
show the jurors’ “feelings about issues” and “[t]he way that a
juror might perceive an individual and judge them based on that
one instance.” The trial court disagreed, stating there are “many
other ways of doing it,” and “[t]his is too controversial, too far off
the topic.” The court added that questioning on such a
controversial issue could make prospective jurors feel
uncomfortable “about being put on the spot.”
Shortly after voir dire resumed, the court asked all but one
of the prospective jurors to step out of the courtroom. The court
addressed the remaining juror: “As [counsel for Hicks] was
asking questions I couldn’t help but see how animated you were,
shaking your head and then talking to some other jurors as
[counsel] was asking questions.” The court added that the juror
was giving the impression of being frustrated with the
questioning by the attorney, and was disrupting voir dire by
talking and making faces. After the trial court warned the
prospective juror about further disruptions and following the
court’s instructions, voir dire continued.
The next day the trial court told the attorneys it had been
“deeply troubled” by the inquiry into kneeling at football games.
The court indicated that such questioning, which could
potentially cause embarrassment and annoyance to jurors for no
apparent reason, amounted to an abuse of voir dire. The
following week, before voir dire resumed, Hicks’s counsel argued
that he should be permitted to pursue the line of questioning
about kneeling during the national anthem at football games
21
pursuant to People v. Williams (1981) 29 Cal.3d 392, 407, and
People v. Wells (1983) 149 Cal.App.3d 721 (Wells). He also
proposed starting voir dire over with an entirely new jury panel.
The court denied both requests.
During voir dire later that day, counsel for Hicks asked the
prospective jurors: “So a show of hands. How many people of the
seven who are now answering questions, how many of you think
that, if my client is tried by a jury with no African-Americans on
it, that it would have no impact on the verdict?” One prospective
juror asked counsel to repeat the question. Hicks’s counsel
responded: “So Mr. Hicks here is African-American. I think we
can all agree on that; right? And if there are no African-
Americans on the jury that ⎯” The prosecutor requested a
sidebar, and the trial court dismissed the jurors for lunch.
The trial court stated it had already ruled that counsel
could ask prospective jurors whether the fact that Hicks is
African-American would make a difference to them, but the
question about the racial composition of the jury “appear[ed] to
be a direct violation of [the court’s] ruling.” The court explained
that this question and the Colin Kaepernick question were
irrelevant, inappropriate, and improper under the previous
ruling. The court also denied counsel’s request to ask the
questions that were permitted in the Wells case, declaring that
the Wells questions and counsel’s inquiry would be divisive and
argumentative in this case. Such questions were more likely to
produce argumentative or speculative responses without
revealing jurors’ biases and attitudes toward race. While finding
the specific questions counsel sought to pose to be unreasonable,
the court stressed, “I’m not precluding you from exploring
legitimate, reasonable areas of potential bias. I’m not.”
22
Counsel for Hicks then requested a ruling on another
proposed question on the issue of potential racial bias: “Assume
that you’re on trial and the alleged victim was Black. The judge
and the lawyers are all Black. The police officers are all Black.
All of the jurors who make up your jury are Black. And you are
the lone White person in the courtroom. What are you feeling?
[¶] Right now as I describe this all-Black courtroom in which you
are the only White face, what is going through your mind? Tell
me about that. Why do you feel this way? Why are you fearful of
being the only one who is White in a sea of Black faces? Have
you ever been in a situation where you were in the minority
racially? Tell me about that. How did that situation make you
feel?”
The court ruled the question to be too convoluted and
complicated to actually expose racial bias, and found it would
merely confuse the issues. The court reiterated that counsel was
free to ask the prospective jurors whether Hicks’s race would
influence their judgment of the case.
B. The trial court acted within its discretion in limiting
defense counsel’s questions to prospective jurors
Code of Civil Procedure section 223 governs voir dire in
criminal jury trials. After the initial examination of prospective
jurors conducted by the trial court, “counsel for each party shall
have the right to examine, by oral and direct questioning, any of
the prospective jurors.” (Code Civ. Proc., § 223, subd. (b)(1).) The
scope of the parties’ examination is subject to reasonable limits
prescribed by the trial court in the exercise of its sound
discretion. (Ibid.; People v. Williams (2006) 40 Cal.4th 287, 307.)
Our Supreme Court has “repeatedly observed that the trial court
has ‘ “considerable discretion . . . to contain voir dire within
23
reasonable limits.” ’ ” (People v. Bell (2019) 7 Cal.5th 70, 91.)
Indeed, “[t]he trial court’s manner of conducting voir dire is not
reversible unless it is clear the resulting trial was rendered
fundamentally unfair.” (Id. at p. 92; People v. Navarette (2003)
30 Cal.4th 458, 486 (Navarette); People v. Byers (2021) 61
Cal.App.5th 447, 456; Code Civ. Proc., § 223, subd. (g) [trial
court’s “exercise of discretion in the manner in which voir dire is
conducted, including . . . any determination that a question is not
in aid of the exercise of challenges for cause, is not cause for a
conviction to be reversed, unless the exercise of that discretion
results in a miscarriage of justice”].) The same rule holds under
the United States Constitution. (See, e.g., Skilling v. United
States (2010) 561 U.S. 358, 386 [“Jury selection, we have
repeatedly emphasized, is ‘particularly within the province of the
trial judge’ ”].)
Under the Fourteenth Amendment, a “defendant is entitled
to question prospective jurors on the issue of possible racial bias”
(People v. Harris (2013) 57 Cal.4th 804, 831 (Harris)), and such
inquiry is particularly important in a case in which an African-
American defendant is charged with a violent crime against a
White victim (People v. Holt (1997) 15 Cal.4th 619, 660; see also
Mu’min v. Virginia (1991) 500 U.S. 415, 424). But this right does
not give counsel license to harass and intimidate prospective
jurors with questions that the trial court determines are more
likely to elicit speculative, argumentative or defensive responses
from jurors than reveal any implicit bias.
Here, the trial court determined that the questions counsel
sought to ask prospective jurors would yield speculative and
argumentative responses, while not necessarily revealing jurors’
implicit racial biases. To avoid this, the court repeatedly invited
24
counsel to ask prospective jurors directly whether Hicks’s race
would affect their judgment of the case. But counsel never asked
prospective jurors any questions about whether or how their
judgment might be influenced by Hicks’s race, insisting instead
that he had the right to ask the questions the court had found
argumentative and irrelevant. In light of the breadth of inquiry
allowed by the trial court, we find no abuse of discretion in its
rejection of the three specific voir dire questions counsel sought to
pose. (Harris, supra, 57 Cal.4th at pp. 831–832; Navarette,
supra, 30 Cal.4th at p. 486.) Moreover, nothing about the court’s
reasonable limitation on voir dire rendered the trial
fundamentally unfair or denied Hicks his constitutional right to
an impartial jury. (Holt, supra, 15 Cal.4th at p. 661; see Ristaino
v. Ross (1976) 424 U.S. 589, 595.)
V. The Trial Court Properly Denied Hicks’s
Batson/Wheeler Motion
Applying comparative juror analysis to the prosecution’s
exercise of a peremptory challenge to an African-American juror,
Hicks contends the trial court’s denial of his Batson/Wheeler
motion denied him equal protection and the right to a
representative jury. (U.S. Const., 6th, 8th & 14th Amends.; Cal.
Const., art. I, §§ 7, 16.) According to Hicks, the error was
reversible per se. We disagree.
A. Relevant proceedings
1. Prospective Juror 5283
Prospective Juror 5283 was single, male, and a high school
educated resident of Hawthorne. He had a 28-year old son. He
was a part-time bus driver, and had previously worked as a
postal clerk. He had no prior jury experience. He had pleaded
guilty to driving under the influence about 25 years earlier. He
25
had also been arrested “several times” for “possession for sales,”
but the charges had been rejected by the district attorney. In one
of those cases, a police officer had planted the drugs. On another
occasion, he was “cold-cocked” by a police officer, and even after
25 years he had lingering ill feelings toward the police. Because
of these experiences and his many negative encounters with law
enforcement, Prospective Juror 5283 found it hard to say whether
he might be biased against any of the parties in the case. He felt
it would be “very difficult” for him to apply the same standard to
police officers as to other witnesses.
Prospective Juror 5283 stated he could “absolutely” decide
the case based on the evidence and follow the court’s instructions,
but when the trial court asked if he would be able to set aside any
biases he held against witnesses who were police officers, he
responded, “To be honest with you, . . . [¶] . . . [¶] [a] person died.
And I’m not really comfortable, you know, judging that. I feel in
my heart that that’s a matter for God, so I’m a little
apprehensive. [¶] I think everybody deserves second chances,
and I’d hate for somebody to lose their whole life, you know. I
mean ⎯ and I don’t want to be the person that decides that.
That’s just in my heart.”
The prosecutor asked Prospective Juror 5283 if his
religious convictions made it uncomfortable to judge. Prospective
Juror 5283 replied, “Yes. Yes, sir.” He explained that he was a
rational person with common sense, and although he could judge
someone if he was forced to do so, he would not be comfortable
because guilt is a matter between the defendant and God. He
stated that he was “not comfortable throwing somebody . . . away
for life.” On the other hand, he felt “it’s kind of prejudging”
because “a life has been taken, and you take a life, you gotta pay
26
the consequences.” “[B]ut I still think a person deserves a second
chance. I hate to see someone lose their whole life.”
Hicks’s counsel pointed out that jurors were not to consider
possible punishment and asked the prospective juror if knowing
this was not a life case affected his answer. Prospective Juror
5283 responded by asserting a person could get a five-year prison
sentence in Los Angeles and a 20-year prison term in Torrance
for the same crime. He continued, “How do you weigh the scales
of justice? You know?” before adding, “I’m uncomfortable, but I’ll
do whatever the judge tells me to do. I’m here for civil service
and I’m going to do whatever he says and that’s the bottom line.”
The prosecutor moved to exclude Prospective Juror 5283 for
cause. The prosecutor explained that the juror told the court that
police had planted drugs on him, he had been beaten up by a
police officer, and he had been charged with possession for sale.
Because of his experiences with law enforcement, the prospective
juror told the court it would be very difficult to be fair. The
prosecutor noted that Prospective Juror 5283 also talked about
believing that “everyone should be given second chances” and
punishment for the same crime is inconsistent across
jurisdictions. Based on the prospective juror’s statements, the
prosecutor thought Prospective Juror 5283 would give weight to
these matters even though they were not in evidence at trial.
Hicks and Ming objected, arguing that the prospective juror had
stated he would follow the court’s instructions. The trial court
denied the prosecutor’s request to excuse Prospective Juror 5283
for cause.
2. Objection and ruling
After the trial court denied the request to excuse
Prospective Juror 5283 for cause, the prosecutor exercised a
27
peremptory challenge against him. Counsel for Hicks made a
Batson/Wheeler motion. He asserted that of the three African-
Americans in the jury venire, one had been excused for cause,
and Prospective Juror 5283 was the only remaining African-
American male. Counsel argued that because every African-
American in the country has had negative experience with law
enforcement, if such negative experience were a proper basis for a
peremptory challenge, no African-American would ever serve on a
jury. Ming joined.
Before hearing from the prosecutor, the trial court found
“no reasonable inference that the peremptory challenge was used
in a purposeful, discriminating manner. There[ are] many
legitimate reasons why this juror should be excused.” Noting the
People’s motion to excuse this juror for cause “was a close call,”
the court nevertheless invited the prosecution to explain the
challenge. The prosecutor reiterated the reasons previously
given, emphasizing that Prospective Juror 5283 admitted several
times that “it would be very difficult for him to be fair.” The
prosecutor noted the prospective juror stated he had been
mistreated by the police, he expressed reluctance to judge people
because he believed God is the ultimate arbiter of guilt, and he
believed people deserved second chances. The prosecutor was
also concerned that Prospective Juror 5283 was focused on
punishment and had brought up inconsistencies in punishment
in different courthouses. All of this led the prosecutor to believe
that Prospective Juror 5283 would be unable to keep his concerns
out of his mind during trial and deliberations.
Following the prosecutor’s explanation and without further
comment, the trial court denied the Batson/Wheeler motion.
28
B. Applicable legal principles
While peremptory challenges are “designed to be used ‘for
any reason, or no reason at all’ ” (People v. Scott (2015) 61 Cal.4th
363, 387 (Scott)), they “ ‘may not be used to exclude prospective
jurors based on group membership such as race or gender.’ ”
(People v. Baker (2021) 10 Cal.5th 1044, 1071 (Baker), quoting
People v. Armstrong (2019) 6 Cal.5th 735, 765 (Armstrong); see
Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at
p. 276.) “Such use of peremptory challenges violates both a
defendant’s right to a jury drawn from a representative cross-
section of the community under article I, section 16 of the
California Constitution, and his right to equal protection under
the Fourteenth Amendment to the United States Constitution.”
(Armstrong, at pp. 765–766; People v. Parker (2017) 2 Cal.5th
1184, 1211 (Parker).)
“ ‘There is a rebuttable presumption that a peremptory
challenge is being exercised properly, and the burden is on the
opposing party to demonstrate impermissible discrimination.’
[Citation.] ‘A three-step procedure applies at trial when a
defendant alleges discriminatory use of peremptory challenges.
First, the defendant must make a prima facie showing that the
prosecution exercised a challenge based on impermissible
criteria. Second, if the trial court finds a prima facie case, then
the prosecution must offer nondiscriminatory reasons for the
challenge. Third, the trial court must determine whether the
prosecution’s offered justification is credible and whether, in light
of all relevant circumstances, the defendant has shown
purposeful race discrimination. [Citation.] “The ultimate burden
of persuasion regarding [discriminatory] motivation rests with,
29
and never shifts from, the [defendant].” ’ ” (Parker, supra, 2
Cal.5th at p. 1211; Baker, supra, 10 Cal.5th at p. 1071.)
At the first step of a Batson/Wheeler inquiry, the trial court
presumes that the prosecution used its peremptory challenges in
a constitutional manner. (Armstrong, supra, 6 Cal.5th at p. 766
[“ ‘[T]here “is a rebuttable presumption that a peremptory
challenge is being exercised properly, and the burden is on the
opposing party to demonstrate impermissible discrimination” ’ ”];
People v. Rushing (2011) 197 Cal.App.4th 801, 808 [it is
presumed that a party exercises peremptory challenge on a
constitutionally permissible ground]; Wheeler, supra, 22 Cal.3d at
p. 278.) To rebut that presumption and establish a prima facie
case of discrimination, the defendant must show “ ‘ “that the
totality of the relevant facts gives rise to an inference of
discriminatory purpose.” ’ ” (People v. Johnson (2019) 8 Cal.5th
475, 506, quoting Johnson v. California (2005) 545 U.S. 162, 168.)
Only when this prima facie showing is made does the burden
shift to the prosecutor to articulate a race-neutral reason for the
challenge. (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix) [if
the prima facie showing is made, the inquiry moves to the second
step, where the burden shifts to the prosecutor].)
On appeal from the denial of a Batson/Wheeler motion at
the first stage, we consider the entire record before the trial court
at the time of its ruling in deciding whether a prima facie case
was stated. (People v. Bonilla (2007) 41 Cal.4th 313, 342
(Bonilla).)
C. The trial court properly found Hicks failed to make a
prima facie showing of discrimination
Before inviting the prosecution to explain its exercise of a
peremptory challenge against Prospective Juror 5283, the trial
30
court declared there were many legitimate reasons to excuse the
juror, and no reasonable inference that the prosecutor had used
the peremptory challenge in an intentionally discriminatory
manner. By denying the motion immediately after the
prosecutor’s statement without further comment, the trial court
implicitly found that Hicks had failed to make a prima facie
showing of discriminatory purpose at step one of the
Batson/Wheeler inquiry. (See People v. Taylor (2010) 48 Cal.4th
574, 612–613 [trial court allowing prosecutor to explain reasons
for peremptory challenge, followed by immediate denial of the
motion did not support an inference that defendant had made a
prima facie showing]; People v. Howard (2008) 42 Cal.4th 1000,
1018 [after suggesting a prima facie showing of discrimination
has not been made, trial court’s invitation to prosecution to
justify peremptory challenge does not constitute implicit finding
that defendant established a prima facie case of
discrimination].)8
In support of his Batson/Wheeler motion, Hicks pointed out
that Prospective Juror 5283 was the sole African-American male
remaining on the jury panel. But even if the prosecutor exercised
his peremptory challenge to strike the only African-American in
the entire venire, this circumstance⎯by itself⎯would be
8 In those cases in which the Batson/Wheeler motion has
been denied at the prima facie stage, our Supreme Court has
“repeatedly encouraged trial courts to offer prosecutors the
opportunity to state their reasons so as to enable creation of an
adequate record for an appellate court, should it disagree with
the first-stage ruling, to determine whether any constitutional
violation has been established.” (Scott, supra, 61 Cal.4th at
p. 388.)
31
insufficient to support an inference that Prospective Juror 5283
was challenged because of his race. “ ‘ “[T]he small absolute size
of this sample makes drawing an inference of discrimination from
this fact alone impossible. ‘[E]ven the exclusion of a single
prospective juror may be the product of an improper group bias.
As a practical matter, however, the challenge of one or two jurors
can rarely suggest a pattern of impermissible exclusion.’ ” ’ ”
(Parker, supra, 2 Cal.5th at p. 1212, citing Bonilla, supra, 41
Cal.4th at p. 343.)
Hicks further asserts there was no nonracial basis for the
prosecutor’s exclusion of Prospective Juror 5283. To the contrary,
as the prosecutor stated during his request to excuse the juror for
cause as well as in his explanation for the use of a peremptory
challenge, Prospective Juror 5283 candidly admitted that his
mistreatment at the hands of law enforcement would make it
very difficult for him to be fair, he believed that people deserved
second chances, and matters of guilt and innocence were between
the defendant and God. The prospective juror was also focused
on punishment, and expressed a belief that punishment for the
same crime varies widely across different jurisdictions.
The prosecutor’s stated race-neutral concerns about this
juror’s ability to fairly judge the case constituted legitimate
reasons to exercise a peremptory challenge against him. (See
Parker, supra, 2 Cal.5th at p. 1213; Scott, supra, 61 Cal.4th at
p. 384 [“A court may also consider nondiscriminatory reasons for
a peremptory challenge that are apparent from and ‘clearly
established’ in the record [citations] and that necessarily dispel
any inference of bias”].) The trial court correctly concluded no
prima facie case of group bias against African-Americans had
been established.
32
D. Appellant is not entitled to a comparative juror
analysis for the first time in this appeal
Hicks claims the proffered reasons for striking Prospective
Juror 5283 were exposed as pretexts for racial discrimination by
the prosecutor’s failure to excuse Prospective Juror 3218, who
ultimately served as Juror No. 2, despite that juror’s previous
negative experiences with police. Hicks’s request for us to engage
in comparative juror analysis for the first time in this appeal is
forfeited. Moreover, Hicks’s comparative juror analysis claim
fails because, on the record before us, Hicks cannot meet his
burden of rebutting the presumption that the prosecutor
exercised his peremptory challenges in a constitutional manner.
(See Armstrong, supra, 6 Cal.5th at p. 766.)
Prospective Juror 3218 was not seated and subjected to voir
dire until the day after the trial court denied Hicks’s
Batson/Wheeler motion as to Prospective Juror 5283.
Accordingly, none of Prospective Juror 3218’s background was
known to the trial court when it denied Hicks’s motion, and Hicks
did not renew his Batson/Wheeler motion when the information
about Prospective Juror 3218 came to light. In explaining that
appellate review of the denial of a Batson/Wheeler motion is
necessarily circumscribed, our Supreme Court has observed that
“the trial court’s finding is reviewed on the record as it stands at
the time the Wheeler/Batson ruling is made. If the defendant
believes that subsequent events should be considered by the trial
court, a renewed objection is required to permit appellate
consideration of these subsequent developments.” (Lenix, supra,
44 Cal.4th at p. 624; People v. Chism (2014) 58 Cal.4th 1266,
1319 (Chism).) Thus, as the court in Chism declared, “if [Hicks]
believed the trial court should have considered any postruling
33
developments, he could have, and should have, renewed his
Batson/Wheeler claim.” (Chism, at p. 1319.) And because he did
not, his claim based on Prospective Juror 3218’s responses made
after the trial court had already denied the Batson/Wheeler
motion is forfeited. (Ibid.)
Hicks is not entitled to comparative juror analysis for the
first time on appeal for the additional reason that the trial court
denied the motion in this case at the prima facie stage of the
Batson/Wheeler analysis before an adequate record had been
developed to permit a probative comparison. As our Supreme
Court has held, the “obligation to consider comparative juror
analysis for the first time on appeal only applies to stage three
Batson/Wheeler claims, not stage one claims.” (People v. Clark
(2016) 63 Cal.4th 522, 568; Lenix, supra, 44 Cal.4th at p. 622,
fn. 15.) Here, counsel for Hicks did not renew his Batson/Wheeler
challenge or raise any issue of comparative analysis in the trial
court, but argued that no African-Americans would ever serve as
jurors if they could be dismissed for negative views toward law
enforcement. Thus, the People never had any opportunity to
explain perceived differences between these prospective jurors
that might have justified exercising a peremptory challenge
against one and not the other.
Finally, Hicks’s comparative analysis claim fails on the
merits. Prospective Juror 3218 said that he had “very bad luck”
with police officers and always seemed to be “in the wrong place
at the wrong time.” On one occasion, he had gone fishing with a
couple friends. Something had happened near the location of
their parked car, and when the juror and his friends returned to
the car, police officers pulled up with lights on and guns drawn.
Prospective Juror 3218 was “physically checked against the wall,”
34
and the officers made him remove his shirt to check for tattoos.
The juror overheard one of the officers say the suspects were
White or Hispanic, but the juror and his friends were “three
Asian guys.” Prospective Juror 3218 admitted that because of his
many negative experiences with police, “it [would] be very hard”
for him to apply the same standard in assessing credibility to
police officers as to other witnesses, and it would be difficult to
trust what they say. However, he agreed to try to keep an open
mind and be fair and impartial to both sides.
Hicks argues that because the only difference between
Prospective Juror 3218 and Prospective Juror 5283 was race, the
prosecutor’s proffered reasons for striking Prospective Juror
5283, who was African-American, were shown to be pretextual in
light of the prosecutor’s acceptance of Prospective Juror 3218,
who was not African-American. As our Supreme Court has
explained, however, pretext is proven “when the compared jurors
have expressed ‘a substantially similar combination of responses,’
in all material respects, to the jurors excused. [Citation.]
Although jurors need not be completely identical for a comparison
to be probative [citation], ‘they must be materially similar in the
respects significant to the prosecutor’s stated basis for the
challenge.’ ” (People v. Winbush (2017) 2 Cal.5th 402, 443
(Winbush).)
Here, race-neutral differences between the two prospective
jurors appear on the record, which can explain why the
prosecutor was willing to accept Prospective Juror 3218 on the
jury but not Prospective Juror 5283. First, not only did
Prospective Juror 5283 have a negative view of law enforcement,
but he believed that guilt and punishment for a life taken are
matters between the defendant and God, he believed that
35
everyone deserves a second chance, he was reluctant to cast
judgment, and he was focused on punishment and its unequal
imposition. Prospective Juror 3218 did not express any such
views. (See Baker, supra, 10 Cal.5th at p. 1084 [prosecutor
properly excused prospective juror who “admitted his view that
‘God is the only one to give life and take life’ ”].)
Second, other factors may have outweighed Prospective
Juror 3218’s negative views of law enforcement in the
prosecutor’s mind. Specifically, Prospective Juror 3218 was an
amateur race car driver who held “very strong opinions about
reckless driving on the street on public roads.” The clear
implication of this remark was that Prospective Juror 3218
presumably would take an extremely dim view of a 90-mile-per-
hour car chase through red lights on a busy urban surface street
at night. This fact may have offset Prospective Juror 3218’s
distrust of police officers. As the court in Lenix observed, “Two
panelists might give a similar answer on a given point. Yet the
risk posed by one panelist might be offset by other answers,
behavior, attitudes or experiences that make one juror, on
balance, more or less desirable. These realities, and the
complexity of human nature, make a formulaic comparison of
isolated responses an exceptionally poor medium to overturn a
trial court’s factual finding.” (Lenix, supra, 44 Cal.4th at p. 624;
Winbush, supra, 2 Cal.5th at p. 442; Chism, supra, 58 Cal.4th at
p. 1319.)
Finally, the particular manner, expressions, and/or body
language of the prospective jurors during voir dire may have
influenced the prosecutor’s decision, but Hicks’s failure to renew
his Batson/Wheeler motion precluded the prosecutor from
addressing this factor and prevented the trial court’s assessment
36
of the prosecutor’s reasons on this basis as well. Indeed, the
failure to renew the motion to permit the trial court to conduct its
own comparative juror analysis with the benefit of its own
observations of the jurors’ demeanor significantly impedes any
such analysis on appeal. “[C]omparative juror evidence is most
effectively considered in the trial court where the defendant can
make an inclusive record, where the prosecutor can respond to
the alleged similarities, and where the trial court can evaluate
those arguments based on what it has seen and heard. . . .
Defendants who wait until appeal to argue comparative juror
analysis must be mindful that such evidence will be considered in
view of the deference accorded the trial court’s ultimate finding of
no discriminatory intent.” (Lenix, supra, 44 Cal.4th at p. 624.)
As Lenix concluded, “[t]he inherent limitations of comparative
juror analysis can be tempered by creating an inclusive record
[which] is critical for meaningful review. Counsel and the trial
court bear responsibility for creating such a record.” (Ibid.)
In sum, the trial court found that Hicks had failed to make
a prima facie showing of discrimination, and nothing in the
record persuades us that the trial court erred in denying the
Batson/Wheeler motion. Based on the limited information
available in the appellate record, we conclude the trial court
correctly determined that Hicks failed to meet his burden to
demonstrate purposeful discrimination.
VI. Remand Is Required to Resentence Hicks in
Accordance with Penal Code Section 1170,
Subdivision (b), as Amended by Senate Bill
No. 567
Hicks contends that the trial court improperly relied on the
fact that he fled the scene of the crime to impose both the upper
37
term on count 1 and the consecutive five-year enhancement
under Vehicle Code section 20001, subdivision (c) in violation of
Penal Code section 1170, subdivision (b)(5), which prohibits such
dual use of facts. However, Hicks did not object to the dual use of
the fact underlying the five-year enhancement, and the People
assert that Hicks has thereby forfeited the issue. We agree.
Because improper dual use is not a jurisdictional error, “[a]
party in a criminal case may not, on appeal, raise ‘claims
involving the trial court’s failure to properly make or articulate
its discretionary sentencing choices’ if the party did not object to
the sentence at trial. [Citation.] The rule applies to ‘cases in
which . . . the court purportedly erred because it double-counted a
particular sentencing factor.’ ” (Gonzalez, supra, 31 Cal.4th at
p. 751, quoting People v. Scott (1994) 9 Cal.4th 331, 353.)
However, Hicks also contends that Senate Bill No. 567s
recent amendments to section 1170, subdivision (b) limiting the
trial court’s discretion to impose an upper term apply
retroactively to him and require remand for resentencing. On
this point, we agree.
Hicks was charged and convicted in count 1 of vehicular
manslaughter in violation of Penal Code section 192, subdivision
(c)(1), which carries a base term of imprisonment for two, four, or
six years. (Pen. Code, § 193, subd. (c)(1).) On count 1, the trial
court imposed the upper term of six years plus a consecutive five-
year enhancement under Vehicle Code section 20001, subdivision
(c). The court imposed concurrent terms on counts 2, 5, and 6,
and stayed the sentences on counts 3 and 4 pursuant to Penal
Code section 654.
Senate Bill No. 567 (2021–2022 Reg. Sess.) chapter 731,
section 1.3 amended section 1170, subdivision (b) to limit a trial
38
court’s ability to impose an upper term sentence. (§ 1170,
subd. (b)(1)–(3).) As explained by the Legislative Counsel’s
Digest, Senate Bill No. 567 “require[s] the court to impose a term
of imprisonment not exceeding the middle term unless there are
circumstances in aggravation that have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at
trial by the jury or by the judge in a court trial.” (Legis.
Counsel’s Dig., Sen. Bill No. 567 (2021–2022 Reg. Sess.) ch. 731,
p. 1.)
Amended section 1170, subdivision (b)(1) provides: “When
a judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2).”
Subdivision (b)(2) of section 1170 in turn provides: “The court
may impose a sentence exceeding the middle term only when
there are circumstances in aggravation of the crime that justify
the imposition of a term of imprisonment exceeding the middle
term, and the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial. Except where evidence supporting an aggravating
circumstance is admissible to prove or defend against the charged
offense or enhancement at trial, or it is otherwise authorized by
law, upon request of a defendant, trial on the circumstances in
aggravation alleged in the indictment or information shall be
bifurcated from the trial of charges and enhancements. The jury
shall not be informed of the bifurcated allegations until there has
been a conviction of a felony offense.” (Italics added.)
39
Senate Bill No. 567s amendments to section 1170 became
effective on January 1, 2022, while Hicks’s appeal was pending in
this court, and there is no indication the Legislature intended the
amendments to apply prospectively only. Accordingly, the new
law applies retroactively to Hicks. (In re Estrada (1965) 63
Cal.2d 740, 745 [“amendatory act imposing the lighter
punishment can be applied constitutionally to acts committed
before its passage provided the judgment convicting the
defendant of the act is not final”]; People v. Superior Court (Lara)
(2018) 4 Cal.5th 299, 307 [discussing Estrada]; People v. Brown
(2012) 54 Cal.4th 314, 323 [same].)
While conceding that the change in law applies
retroactively to Hicks, respondent contends that remand for
resentencing is not required here. In support of this argument,
respondent relies on the trial court’s recitation of facts to support
a finding that Hicks’s crime involved great bodily harm, the
threat of great bodily harm, and a high degree of callousness, and
asserts, “The [trial] court was quite correct and a jury would have
agreed beyond a reasonable doubt.” But those facts were not
stipulated by Hicks, nor were they expressly found true beyond a
reasonable doubt at trial by the jury.
In enacting these ameliorative changes to section 1170,
subdivision (b), the Legislature did not leave room for speculation
about what facts the jury might have found true beyond a
reasonable doubt had it been charged with making such findings.
Instead, the Legislature explicitly described the appropriate
procedure by which aggravating factors should be presented to
the jury and expressly stated that the jury “shall not be informed
of the bifurcated allegations” until the defendant has been
convicted of a felony offense. (§ 1170, subd. (b)(2), italics added.)
40
Accordingly, we remand the matter to the trial court with
directions to resentence Hicks in accordance with section 1170,
subdivision (b), as amended by Senate Bill No. 567, effective
January 1, 2022. (Sen. Bill No. 567 (2021-2022 Reg. Sess.)
ch. 731, § 1.3.) On remand, however, the trial court is not limited
to consideration of the lower, middle, or upper term on count 1,
but is entitled to reconsider the full range of sentencing options
and impose a lawful sentence consistent with the court’s original
and presumably unchanged sentencing goals. (People v. Hill
(1986) 185 Cal.App.3d 831, 834; People v. Burbine (2003) 106
Cal.App.4th 1250, 1258.)
41
DISPOSITION
The judgments are affirmed. The matter is remanded to
the trial court with directions to resentence appellant Darryl
Leander Hicks, Jr., in accordance with Penal Code section 1170,
subdivision (b), as amended by Senate Bill No. 567, effective
January 1, 2022.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
42