Unreported / Non-Citable
Background
Kenny Vincent Bird was driving between 55 and 70 miles per hour in a 25-mph zone when he struck Frances Joanne Laniohan's van head-on at an intersection, killing her. Right before the collision, Bird drove 'all gas, no brake' and did not stop at the stop sign. After the collision, Bird walked away without attempting to help Laniohan. A deputy sheriff detained him about 200 yards away, and a warranted blood test showed his blood alcohol level was between 0.125 and 0.137 percent at the time of the accident.
The People charged Bird with gross vehicular manslaughter while intoxicated, failure to stop following an accident resulting in death, driving under the influence causing bodily injury, and driving with a blood-alcohol content of 0.08 percent or more causing bodily injury. The People also alleged two prior strike convictions as to all counts, a great bodily injury allegation as to count 1, and a prior prison term allegation as to count 2. A jury found Bird guilty of counts 1 and 2, found true the great bodily injury allegation, found not true that he fled the crime scene, and as instructed returned no verdict on the lesser-included offenses in counts 3 and 4. The trial court found true beyond a reasonable doubt the prior strike and prior prison term allegations.
The trial court sentenced Bird to 30 years to life on the manslaughter count plus a consecutive four-year upper term on the failure-to-stop count, doubled to eight years due to the prior strikes. Bird appealed, challenging the overruling of his peremptory-challenge objection and the refusal to dismiss his prior strike convictions.
The Court’s Holding
The Court of Appeal affirmed. During jury selection, the prosecutor peremptorily challenged prospective juror L., citing inattentiveness—nodding off at times, rubbing his eyes, and not paying attention—while L. separately said he was tired and did not want to be there. Defense counsel objected under Code of Civil Procedure section 231.7, which lists inattentiveness as a presumptively invalid reason. The trial court confirmed L.'s inattentiveness from its own observations, calling his body language and demeanor profoundly disengaged and an outlier among jurors, and found the prosecutor adequately explained why inattentiveness mattered in a complicated, multi-day trial with numerous witnesses and technical evidence.
The appellate court held that substantial evidence supported the trial court's factual confirmation and that the prosecutor's explanation overcame the presumption of invalidity. It further found no substantial likelihood that an objectively reasonable person would view race or ethnicity as a factor in the challenge, noting the absence of record support for L.'s ethnicity and the presence of valid, case-specific reasons for the strike.
On sentencing, the court held the trial court did not abuse its discretion in denying Bird's Romero motion to dismiss his prior strikes. The court weighed the remoteness of the prior strikes but reasonably concluded that Bird's escalating conduct—including a later domestic violence conviction and the current fatal offense—placed him within the spirit of the three strikes law, and it rejected the claim that a second-strike sentence was not considered.
Key Takeaways
- Under section 231.7, a trial court's express confirmation of a prospective juror's inattentiveness, based on the court's own observations of demeanor and body language, combined with the striking party's explanation of why that behavior matters to the case, can rebut the presumption that inattentiveness is an invalid reason for a peremptory challenge.
- A prosecutor's explanation that a juror's inattentiveness matters in a complicated, multi-day trial with technical evidence is sufficient to establish a valid, race-neutral reason for the strike.
- The absence of record evidence supporting a claim of racial bias, including the lack of comparative juror analysis or history of discriminatory strikes, supports a finding of no substantial likelihood that race was a factor.
- A trial court does not abuse its discretion in denying a Romero motion when it weighs the remoteness of prior strikes against the defendant's escalating criminal conduct and lack of rehabilitative prospects.
- A crime-free period between prior strikes and the current offense does not compel dismissal when the defendant subsequently commits another crime of violence, indicating the prior strikes did not serve as a pivot point for reform.
Why It Matters
This decision illustrates how trial courts can properly navigate the two-step process under section 231.7 to validate peremptory challenges based on juror inattentiveness, emphasizing the importance of the trial court's own observations and a case-specific explanation from the striking party.
The opinion also reinforces the deferential abuse-of-discretion standard applied to Romero motions, confirming that trial courts may deny dismissal of prior strikes even when remote, particularly where the defendant's criminal history shows escalating severity and a failure to reform.