People v. Bird CA3

Filed 10/30/26 P. v. Bird CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) THE PEOPLE, C103339 Plaintiff and Respondent, (Super. Ct. No. v. STKCRFE20230013045) KENNY VINCENT BIRD, Defendant and Appellant. A jury found defendant Kenny Vincent Bird guilty of gross vehicular manslaughter while intoxicated and failure to stop following an accident that resulted in death and found true a great bodily injury allegation. The trial court found true allegations of prior strike convictions and a prior prison term. The trial court sentenced defendant to 30 years to life plus eight years in prison. On appeal, defendant contends: (1) the trial court erred by overruling his objection to the prosecutor’s peremptory challenge against a prospective juror for being inattentive; (2) the trial court abused its discretion in refusing to dismiss his prior strike convictions. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND Defendant was driving between 55 and 70 miles an hour when he struck Frances Joanne Laniohan’s van head on at an intersection, killing her. The speed limit was 25 1 miles per hour. Right before the collision, defendant drove “all gas, no brake” and did not stop at the stop sign before entering the intersection. After the collision, defendant walked away without attempting to help Laniohan. A deputy sheriff detained defendant about 200 yards away from the collision. A highway patrol officer saw that defendant had signs of intoxication, but defendant refused to answer pre-field sobriety test questions or perform a field sobriety test. He also denied being involved in an accident and said he was out for a walk for “some air.” A warranted blood test result showed defendant’s blood alcohol level was between 0.125 percent and 0.137 percent at the time of the accident. The People charged defendant with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a); count 1), failure to stop following an accident that resulted in permanent injury or death (Veh. Code, § 20001, subd. (b)(2); count 2), driving under the influence and causing bodily injury to another person (Veh. Code, § 23153, subd. (a); count 3), and driving with a blood-alcohol content of 0.08 percent or more causing bodily injury (Veh. Code, § 23153, subd. (b); count 4). The People also alleged, as relevant here: (1) as to all counts, defendant had two prior strike convictions (Pen. Code, §§ 1170.12, subd. (b), 667, subd. (d)); (2) as to count 1, defendant personally inflicted great bodily injury (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.7, subd. (a)) and fled the crime scene (Veh. Code, § 20001, subd. (c)); and (3) as to count 2, defendant had served a prior prison term (Cal. Rules of Court, rule 4.421(b)(3)). A jury found defendant guilty of counts 1 and 2, and as instructed did not return a verdict on the lesser-included offenses charged in counts 3 and 4. The jury also found true that defendant inflicted great bodily injury when committing the vehicular manslaughter but found not true that he fled the crime scene. The trial court found true beyond a reasonable doubt the allegations of the prior strike convictions and the prior prison term. 2  The trial court sentenced defendant to prison for 30 years to life on count 1, plus a consecutive four-year upper term on count 2, doubled to eight years due to the prior strike convictions. Defendant timely appeals. DISCUSSION I. Peremptory Challenge Defendant contends the trial court erred by overruling his Code of Civil Procedure section 231.7 (section 231.7) objection to the prosecutor’s peremptory challenge against prospective juror L. based on L.’s inattentiveness. We disagree. A. Additional jury selection background During jury selection, L. stated he used to work overnight shifts but he was no longer on that schedule and would be able to stay awake during the day. The prosecutor asked L.: “It seems like you kind of don’t want to be here. You seem a little bit tired and like this is like the last place you want to be. Am I right or wrong about that?” L. responded: “Yeah, you’re right. [¶] … [¶] … I’m not trying to be here. [¶] … [¶] I’m tired, too.” He said he had little sleep the night before but denied the lack of sleep was caused by his sleep schedule. The prosecutor continued: “Well, part of what I’m getting at is this is a criminal jury trial that you’d potentially be serving on. You’re going to have to be listening to evidence and hearing witnesses testify, looking at stuff up on the overhead, and it’s very important that you take it seriously and pay attention and absorb all of that evidence. And if you’re, A, tired and, B, don’t want to, that gives me some concern, probably all of the parties a little bit of concern. Is that something you think you can do in this case?” L. confirmed he “could stay awake for this case.” He further assured the prosecutor: (1) there was no chance he may have a hard time staying awake during this case, (2) he felt comfortable evaluating witness testimony, and (3) he would have a normal sleep schedule and show up in court well-rested in the morning. 3  The prosecutor exercised a peremptory challenge against L. He stated: “[L.] demonstrated over the course of questioning by both parties, and including the initial questioning, that he was inattentive, not wanting to be here, indicated that he didn’t want to be here, … appeared to be out of it. And when I say ‘inattentive,’ nodding off at times, rubbing his eyes, not paying attention, … he also appeared to be under the influence, I would note. I obviously don’t know that for sure, but … the way he was speaking and the way that he was engaging with everybody indicated that he may not be sober while we’re here right now. [¶] And so this is a complicated case in many ways, and he’s going to have to listen to days and days of testimony from many different witnesses. He … provided nothing other than just eventually bowling over and saying that he might pay attention, that he would be able to consume the testimony and give both sides a fair trial. And so, of course, nothing to do with his race or his national origin or anything like that. It’s that we need jurors in this case who are going to pay attention and listen to all of the evidence and he’s given no indication that he would be willing to do that and so that’s essentially why I kicked him.” Defense counsel objected on the ground that the prosecutor’s behavior-based reasons for the peremptory challenge were presumptively invalid under section 231.7, subdivision (g). He disagreed that L. appeared to be under the influence because L. did not have red eyes or “reek like weed or anything like that.” He also pointed out that L. said he could pay attention at trial and the prosecutor’s challenge was based solely on L.’s “demeanor, his lack of eye contact, his … maybe bad attitude that [was] perceived by counsel.” The prosecutor reiterated he exercised the peremptory challenge based on “just inattentiveness. It’s literally staying awake during the trial.” L.’s inattentiveness mattered because, according to the prosecutor: “This is not just a one-day trial. This is going to have potentially anywhere from 9 to 12 witnesses, or something along those lines, and when you’re a juror in this case, you’re expected to pay attention and be 4 attentive. [¶] And so the issue is – really my reading of it, of [section 231.7], is if you’re not going to be able to pay attention and follow the facts of the case and consume the evidence, you are allowed to kick somebody for that reason if that matters, right? As long as I’m not using [it] as a conduit to kick him for some improper purpose. If he’s not, in fact, going to be paying attention and not, in fact, going to be engaged with the evidence as it’s presented to him, I have concerns about his ability to … ultimately reach a decision one way or another and so that’s the reasoning behind it.” Defense counsel countered that the real reason for the challenge was L.’s “slouching in his chair and sagging his pants and kind of giving us attitude.” The prosecutor disagreed: “[I]t has nothing to do with how he’s dressed or the fact that he’s slouching. It has to do with him being awake and coming sober. I didn’t ask specifically if he was high. … I observed that he may not be totally with us. [¶] And so in this type of case and in all cases, but especially one where you’re talking about a vehicular manslaughter, it’s important to have jurors that I think want to be here and are engaged, and he said he didn’t want to be here. And he said he didn’t sleep at all the night before. Maybe he changes his sleep schedule. I don’t know that. [¶] So all of the case indicators suggest that he would not be appropriate to put on the jury and give [defendant] or the People a fair trial.” The trial court noted inattentiveness is a presumptively invalid reason for a peremptory challenge under section 231.7. And to overcome this presumption, L.’s inattentiveness must be confirmed by the trial court’s own observations. The trial court observed L. as being inattentive: “I would note that [L.’s] body language and inattentive[ness] is an outlier. He is inattentive in a way that no other juror has been inattentive thus far in this process, even those jurors that have self-selected to essentially refuse to participate. … [N]o other jurors demonstrated the body language or the inattentiveness that he has demonstrated. I’m not saying that it’s incredibly over the top, but it is very obvious that he has little interest, from this Court’s perspective, based 5 on outward appearances, … not himself specifically, but the manner in which he’s carrying himself, that he is not interested in being here, regardless of the words that he articulated toward the end. Everything else about his fiber suggests that he’s not interested in being here, that he’s otherwise inattentive. [¶] … I’m not saying this is easy. When you hand somebody a microphone, most people do not feel comfortable with a microphone, so it’s a little bit difficult. But he has made no effort whatsoever to answer any of the questions into the microphone so we can hear him. I can barely hear what he said half the time, and he doesn’t speak up. He is, in this Court’s estimation, inattentive, disengaged, and his body language and demeanor says that profoundly.” The trial court found L.’s inattentiveness mattered: “DUIs are complicated, challenging cases. There is significant scientific evidence that relates to the decision regarding the right outcome in any given DUI case. This case is a gross vehicular manslaughter while intoxicated case plus DUI with injury case. The science of any case of this sort is significant. There are other things that I assume will be somewhat technical. [¶] Somebody that is inattentive, exhibiting bad body language and demeanor, unintelligent, somewhat confused answers in relation to a case that is technical like this, as articulated by [the prosecutor], I believe that that is a reasonable concern.” As such, the trial court overruled defense counsel’s objection, finding no substantial likelihood that an objectively reasonable person would view race or ethnicity as a factor in the use of the peremptory challenge. B. Section 231.7 Section 231.7, subdivision (a) provides: “A party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s” race or ethnicity, among other things. Section 231.7, subdivision (g)(1) provides a list of presumptively invalid reasons for a peremptory challenge, including a prospective juror’s inattentiveness, failure to 6 make eye contact, or problematic attitude, body language, or demeanor. (§ 231.7, subd. (g)(1)(A) & (B).) Section 231.7, subdivision (g)(2) prescribes a two-step process to rebut this presumption: (1) the trial court confirms that the asserted behavior occurred, based on the court’s own observations or the observations of counsel for the objecting party; and (2) the counsel offering the reason explains why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried. (People v. Ortiz (2023) 96 Cal.App.5th 768, 794; People v. SanMiguel (2026) 20 Cal.5th 254, 309 [an explanation is required to overcome the presumption that a behavior-based reason is invalid].) These two steps need not be fulfilled sequentially as “there is no reason why counsel’s explanation cannot precede the court’s confirmation.” (SanMiguel, at p. 304, fn. 3.) And the striking party’s explanation must be “sufficient for the court to evaluate what the striking party perceives as the relationship between the observed behavior and the prospective juror’s ability to perform the functions of a juror.” (Id., at p. 309.) “If the striking party does not offer enough information to permit the court to assess whether the behavior-based reason for the strike was infected with bias, then the striking party has not satisfied the explanation requirement, and the reason may not be relied on to justify the strike.” (Ibid.) Regardless of whether a section 231.7, subdivision (g)(1) reason is valid, the court must engage in the ultimate determination of “whether, evaluating all of the reasons in light of the totality of the circumstances, there is a substantial likelihood that an objective observer would view race or other protected status as a factor.” (People v. SanMiguel, supra, 20 Cal.5th at p. 308, citing § 231.7, subd. (d)(1).) A “substantial likelihood” means “more than a mere possibility but less than a standard of more likely than not.” (§ 231.7, subd. (d)(2)(B).) Subdivision (d)(3) provides a nonexhaustive list of factors the court may consider in making the substantial likelihood determination. And a subdivision (g)(1) reason that has overcome the invalid presumption can also be 7 considered as a valid reason in that determination. (People v. Ortiz, supra, 96 Cal.App.5th at p. 804.) We review the trial court’s denial of a section 231.7 objection de novo and its express factual findings for substantial evidence. (§ 231.7, subd. (j).) We do not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record, and consider only reasons actually given to explain the use of the peremptory challenge. (§ 231.7, subd. (j).) Here, substantial evidence supports the trial court’s factual confirmation that L. was inattentive based on his attitude, body language, and demeanor. L. admitted he was tired and did not want to attend jury selection. Defense counsel also observed L. lacked eye contact and was “slouching in his chair and sagging his pants and kind of giving us attitude.” While most of the trial court’s findings concerned L.’s nonverbal behaviors and demeanor that are not reflected completely in a written transcript, nothing in the record calls into question such findings. (People v. Ortiz, supra, 96 Cal.App.5th at p. 802; People v. Reynoso (2003) 31 Cal.4th 903, 926 [“the trial court was in the best position to observe the prospective juror[’s] demeanor”].) The prosecutor also provided sufficient explanation as to why L.’s inattentiveness, as evidenced by his body language and demeanor, mattered here. L. would serve as a juror in a complicated, multi-day trial that could have up to 12 witnesses and expert testimony on science and mathematics. But L. was “nodding off at times, rubbing his eyes, not paying attention” during jury selection. A juror in such a complicated case must be able to pay attention and engage in the evidence. L.’s inattentiveness made it questionable as to whether he could give either side a fair trial. This was enough for the trial court and us to evaluate the relationship between L.’s inattentiveness and his ability to perform the functions of a juror. We therefore conclude the prosecution’s proffered reason of inattentiveness overcomes the invalidity presumption. L.’s inattentiveness is now a valid reason to be 8 considered in determining whether there is a substantial likelihood that an objectively reasonable person would view race or ethnicity as a factor in the prosecutor’s use of a peremptory challenge against L. (People v. Ortiz, supra, 96 Cal.App.5th at p. 804.) We find no such substantial likelihood here. Defendant claims L. is Hispanic but provides no supporting record citation. (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520 [“we may disregard factual contentions that are not supported by citations to the record”].) Neither the trial court nor counsel noted L.’s race or ethnicity during jury selection. (§ 231.7, subd. (d)(3)(A).) It is true that L. promised to stay awake and evaluate the evidence during trial. But when the prosecutor pointedly asked L. if he was “a little bit tired” and if the courtroom was “the last place [he] want[ed] to be,” L. confirmed without hesitation. (§ 231.7, subd. (d)(3)(C)(i) & (ii).) The trial court observed L.’s body language and demeanor demonstrated “profoundly” that he was “inattentive” and “disengaged.” The trial here would last for days and involve up to a dozen witnesses and technical testimony. The record also does not contain the questioning of other prospective jurors (§ 231.7, subd. (d)(3)(C)(iii) & (D)) or the history of the prosecutor office’s use of peremptory challenges (§ 231.7, subd. (d)(3)(G)). In sum, the totality of the circumstances here showed no substantial likelihood that an objectively reasonable person would view L.’s race or ethnicity as a factor in the prosecutor’s use of the peremptory challenge against L. II. Sentencing Defendant contends the trial court abused its discretion in refusing to dismiss his prior strike convictions. We disagree. A. Defendant’s convictions and sentencing background In May 2008, defendant pled guilty to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), a strike conviction, in exchange for five years of probation and one year in the county jail. In that case, defendant got into an argument with a romantic 9 partner, put a knife to her throat, and told her not to make a scene. The victim cut her hand while pushing the knife away. In October 2009, while on probation for the assault conviction, defendant pled guilty to second degree robbery (Pen. Code, § 211), another strike conviction, in exchange for four years in prison. The trial court revoked his probation in the assault case and sentenced him to a concurrent term of three years in prison. Defendant got married in 2013 and had four children. In April 2023, defendant was convicted of battery against a romantic partner (Pen. Code, § 243, subd. (e)(1)) and was placed on three years of probation. While on probation, defendant committed the current vehicular manslaughter, his third strike. Defendant filed a motion to dismiss one or both of his prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The trial court noted defendant had a history of violence but his prior strike convictions were remote. Defendant was 33 or 34 years old at the time of his current offense and he sustained the prior strike convictions when he was 16 or 17 years old. The remoteness of defendant’s prior strike convictions was “the only factor … substantial enough for serious consideration with regard[] to whether or not to strike a strike or both strikes.” After the strike convictions, defendant had a less severe domestic violence conviction. But his current vehicular manslaughter conviction was a serious strike offense with “significantly increasing” severity and “an increase with regards to the concern regarding behavior.” The trial court also found no evidence that defendant’s behavior was a result of drug addiction or alcoholism, and defendant provided no information about his general health, need for rehabilitation, or prospects for a stable life. It further noted defendant was not cooperative with the police officers. The trial court then denied defendant’s Romero motion. 10  B. Analysis “A court’s discretion to strike prior felony conviction allegations in furtherance of justice is limited.” (Romero, supra, 13 Cal.4th at p. 530.) When deciding whether to dismiss a prior strike conviction, the court “must consider whether, in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) A dismissal is improper “if ‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,’ while ignoring ‘defendant’s background,’ ‘the nature of his present offenses,’ and other ‘individualized considerations.’ ” (Romero, at p. 531.) We review a trial court’s refusal to dismiss or strike a prior conviction allegation for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) Under this standard, “a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) Moreover, the three strikes law “creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper.” (Id. at p. 378.) “In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances,” such as when the trial court was unaware of its discretion to dismiss or considered impermissible factors in declining to dismiss. (Ibid.) “Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) Here, the trial court acted within its discretion. Defendant had a history of crimes of violence, including against his partners. His prior offenses targeted people he knew but his conduct in the current offense endangered random people, killing one. Regarding 11 the current offense, he made no effort to help Laniohan after the accident that ended up killing her; instead, he walked away and later lied to the police officer about his involvement. It was reasonable for the trial court to find defendant’s current offense is of increased seriousness and involves worsening behaviors. There was no information about defendant’s general health, need for rehabilitation, or prospects of a stable life, and there was no indication that defendant’s conduct was a result of drug addiction or alcoholism. The trial court also considered the remoteness of defendant’s prior strike convictions as a factor favoring dismissal of his prior strike offenses. The record demonstrates the trial court balanced the relevant facts and reached an impartial decision. We reject defendant’s contention that his 10-year crime-free period supports dismissal of his prior strike convictions. “It is true that a remote conviction may be dismissed if it is followed by a long crime-free period evidencing rehabilitation.” (People v. Dain (2025) 115 Cal.App.5th 235, 252.) But “[r]ather than simply calculating the number of years that have passed since the prior strikes, sentencing courts are to consider whether the defendant’s prior strike convictions served ‘as a pivot point for reforming his ways.’ ” (People v. Vasquez (2021) 72 Cal.App.5th 374, 390.) Here, defendant’s first strike conviction was based on his violence against a romantic partner. After the crime-free period, defendant again committed a domestic violence related offense. While defendant got married and had children during his crime-free period, his new domestic violence related conviction shows his prior strike convictions did not serve as a pivot point for reforming his ways. Finally, we reject defendant’s contention that the trial court failed to consider whether sentencing him as a second striker could still meet the goal of a just sentence under People v. Garcia (1999) 20 Cal.4th 490. We presume the trial court considered all relevant factors in the absence of an affirmative record to the contrary. (People v. Myers, supra, 69 Cal.App.4th at p. 310.) Defendant cites nothing in the record showing the trial court explicitly declined to consider an alternative sentence. 12  DISPOSITION The judgment is affirmed. /s/ MESIWALA, J. We concur: /s/ HULL, Acting P. J. /s/ FEINBERG, J. 13