Filed 8/27/20 P. v. Williams CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B298358
(Super. Ct. No. BA463610)
Plaintiff and Respondent, (Los Angeles County)
v.
JAHARRI WILLIAMS,
Defendant and Appellant.
A jury found Jaharri Williams (Williams) guilty of shooting
at an inhabited dwelling (Pen. Code,1 § 246); assault with an
automatic firearm (§ 245, subd. (b)); possession of a firearm by a
felon (§ 29900, subd. (a)(1); and discharge of a firearm with gross
negligence (§ 246.3). As to the assault charge, the jury found that
Williams personally used a firearm (§ 12022.5). Williams
admitted that he had incurred two prior serious felony “strike”
convictions (§§ 667, subds. (a)(1), (b)-(i); 1170.12, subds. (a)-(d).)
All statutory references are to the Penal Code unless
1
otherwise indicated.
The trial court sentenced Williams to a total term of 59 years to
life. We affirm.
FACTS
Melvin Johnson lived in the front house on a property
containing two houses. Johnson’s mother, Patrice Tolliver, his
girlfriend, Breanna Williams (Breanna), and their two-year-old
son, Noah, lived with him. Williams lived in the rear house with
Callie Harvey and her children.
On December 4, 2017, Johnson was working on a car in the
driveway between the houses at about 4:30 in the afternoon.
Noah and the daughter of a friend were on the porch of the rear
house. A car driven by Harvey came down the driveway.
Williams got out of the car and asked Johnson why his children
were always in front of his house. Johnson replied if there is a
problem they could take care of it. The men continued to argue.
Eventually Williams went into the rear house. Breanna and
Tolliver came outside. Breanna and Harvey got into an
argument.
Suddenly, Williams came out of the rear house with a gun
in his hand. Harvey asked him, “What are you doing?” She tried
to get him to take the gun back into the house, but he would not
listen to her.
Johnson started moving Breanna, Tolliver, and Noah into
the front house. As he did so, Williams raised his hand and fired
four shots. Johnson got Breanna and Noah into the house, but
Tolliver was still outside. Johnson saw Williams kneel down on
the ground and fire two more shots toward the front door of the
house. After firing the shots, Williams fled.
There were bullet holes in the screen door to the front
house and in a couch, a pillow, and a computer inside the house.
2
Johnson and Tolliver identified the type of gun Williams used as
a semiautomatic handgun.
Prior Incident
Over Williams’s objection, the trial court admitted evidence
of a prior incident. Enrique Franco testified that in March 2002,
he was in front of an apartment house when a car passed by. The
car turned around and stopped in front of the apartment.
Williams, who was in the passenger seat, began shooting at
Franco. Franco ran, but he was shot in the calf. Williams used a
black semiautomatic handgun. Franco had no previous contact
with Williams.
Defense
Harvey testified that she had lived in the rear house for
about six months. She was not romantically involved with
Williams, but he was like a brother to her. Williams did not live
with her, but kept some belongings at her house. She was
casually dating Calvin Banks.
On the day in question, Banks and Williams were with
Harvey when she drove up the driveway between the houses.
Banks got into an argument with Johnson. It was Banks who
fired the shots. Harvey did not see Williams with a gun.
DISCUSSION
I.
Batson/Wheeler Motion
Williams contends the trial court erred in denying his
Batson/Wheeler motion. (Batson v. Kentucky (1986) 476 U.S. 79,
89; People v. Wheeler (1978) 22 Cal.3d 258, 276-277.)
A prosecutor’s use of a peremptory challenge to remove a
juror on the basis of the juror’s race violates the defendant’s right
to due process and an impartial jury. (People v. Wheeler, supra,
3
22 Cal.3d at pp. 276-277.) The exclusion of even one prospective
juror on the basis of race is structural error, requiring reversal.
(People v. Gutierrez (2017) 2 Cal.5th 1150, 1158.)
A defendant’s Batson/Wheeler motion alleging the
prosecution has made a peremptory challenge of a juror on the
basis of the juror’s race requires a three-step analysis. First, the
defendant must show a prima facie case by demonstrating that
the totality of the facts give rise to an inference of a
discriminatory purpose. (People v. Gutierrez, supra, 2 Cal.5th at
p. 1158.) Second, if the trial court finds the defendant has met
his burden of showing a prima facie case, the burden shifts to the
prosecution to give a clear and reasonably specific explanation of
his legitimate reasons for the challenge. (Ibid.) Third, if the
prosecution provides a nondiscriminatory explanation, the court
must decide whether the defendant has proven purposeful
discrimination. (Ibid.) We review the trial court’s ruling under
the substantial evidence standard. (People v. McDermott (2002)
28 Cal.4th 946, 970.)
Williams’s Batson/Wheeler motion was based on the
prosecution’s peremptory challenge of prospective juror number
3.2 Prospective juror number 3 was the only African-American
juror remaining. The only other African-American prospective
juror was excused by stipulation, and her dismissal is not
challenged on appeal. Defense counsel expressed concern about
her ability to be fair because of her prior experiences concerning
crime and law enforcement.
2 The record sometimes refers to prospective juror number
3 as prospective juror number 13, her original placement. For
clarity, we refer to the prospective juror as prospective juror
number 3 throughout this opinion.
4
Prospective juror number 3 said she is a behavioral
therapist. She works with special needs children from five to 15
years old. Most of the children are autistic, but she works with a
wide range of children who have special needs. She has worked
as a behavioral therapist for a year and a half and enjoys her job.
She has a brother who had been arrested for burglary. Her
mother had to post his bail. Her uncle has been in and out of jail,
and her brother’s grandfather was murdered when she was very
young.
When Williams made his Batson/Wheeler motion, the trial
court asked the prosecutor if he would like to respond. The
prosecutor stated he challenged the prospective juror primarily
because of her occupation. He said, “I do have hesitation when it
comes to therapists or anyone in the psychology field.” The
prosecutor also considered to a much lesser extent than her
occupation that her brother had been arrested, her uncle had
been in and out of custody, and her grandfather was murdered.
The trial court ruled that Williams failed to establish a
prima facie case of racial discrimination. The court stated that it
asked for the prosecutor’s reasons for the peremptory challenge
only out of an abundance of caution to aid in appellate review.
The court noted that a potential juror who deals with young
children with special needs is often a concern of prosecutors. The
court also noted that prospective juror number 3 was very young,
and that young age is often a concern of counsel. The court found
the prosecutor’s peremptory challenge was not based on race.
Indeed, the prosecutor’s reason for challenging prospective
juror number 3 is obvious, and it has nothing to do with race.
Anyone who works as a behavioral therapist is likely to have an
5
abundance of compassion for people who are having difficulty
with their behavior. The prosecutor must prove that the
defendant’s behavior was criminal. The last thing the
prosecution wants is a juror who is likely to have sympathy for
the defendant. Ideally, the prosecution is looking for a juror who
will dispassionately view the evidence and the defendant.
Williams points out that the prosecutor did not challenge
an occupational therapist. But an occupational therapist assists
people to perform work tasks. It is far different than a behavioral
therapist. Moreover, the prosecutor pointed out that the
occupational therapist was older and had more life experience.
Williams points out that the prosecutor did not challenge a
psychology student. But a psychology student is far different
than a practicing behavioral therapist.
Williams also claims that the prosecution did not challenge
prospective juror number 6, a special education teacher and
former nurse. But the record shows the prosecution exercised a
peremptory challenge for prospective juror number 6.
The record supports the trial court’s ruling that the
prosecutor’s peremptory challenge to prospective juror number 3
was not based on race.
The dissent chides the majority for applying the substantial
evidence standard in our review of the trial court’s acceptance of
the prosecutor’s explanation for excusing prospective juror
number 3. Instead the dissent assumes that because the
prosecutor did not excuse other jurors with different but what it
considers similar professions, there is ipso facto a discriminatory
motive for excusing prospective juror number 3.
The dissent writes, “The defendant here was African-
American, and all prospective African-American jurors were
6
removed from the panel.” The one other prospective black juror
was removed by stipulation because the defense wanted her
removed.
The dissent urges us to conditionally reverse and remand to
give the prosecutor an opportunity to do what he already did, give
reasons for the exclusion of prospective juror number 3. To what
end? To invent a reason acceptable to the dissent?
We appreciate and share in the dissent’s concerns about
overt and unintended racial discrimination. The dissent assumes
the facts in this case are an example of such discrimination ipse
dixit. To ignore our role as impartial judges and to ignore the
substantial evidence supporting the trial judge’s well-reasoned
finding is to abandon our role as impartial judges. We do not
disagree with the dissent’s passionate concern for racial equality,
but such rhetoric is misplaced here. Our commitment to a fair
and impartial application of the law matters.
II.
Prior Incident
Williams contends the trial court abused its discretion in
permitting evidence of an uncharged offense: Franco’s testimony
that Williams shot multiple shots at him with a black
semiautomatic handgun and hit him in the calf.
Williams objected to the testimony as inadmissible
character evidence (Evid. Code, § 1101, subd. (a)) and as more
prejudicial than probative (Evid. Code, § 352).
Evidence Code section 1101, subdivision (a) prohibits
evidence of a person’s character or character trait when offered to
prove his conduct on a specified occasion. But Evidence Code
section 1101, subdivision (b) allows evidence of uncharged
conduct when offered to prove a fact other than propensity, such
7
as intent. The admissibility of such evidence is reviewed for an
abuse of discretion. (People v. DeRango (1981) 115 Cal.App.3d
583, 589-590.)
Here the evidence was admitted to show intent. The
prosecutor charged Williams with attempted murder. That
requires the specific intent to kill. (People v. Gonzalez (2012) 54
Cal.4th 643, 664.) Franco was hit with a bullet fired by Williams.
As the trial court found, Franco’s testimony tends to show that
Williams intended to hit Johnson, not just shoot in the air.
As to Evidence Code section 352, the trial court could
reasonably conclude that the probative value of the evidence
outweighed the danger of undue prejudice. The evidence is
highly probative of Williams’s intent. If it were unduly
prejudicial, the jury would have found Williams guilty of
attempted murder. Instead, the jury was unable to reach a
verdict on two counts of attempted murder.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
I concur:
YEGAN, J.
8
TANGEMAN, J., Dissenting:
I respectfully dissent. This case presents the all-too-
common question of whether the prosecutor’s use of a peremptory
challenge to remove an African-American juror in a criminal trial
of an African-American defendant violated the defendant’s right
to due process and a fair trial. (People v. Wheeler (1978) 22
Cal.3d 258, 276-277.) The law is clear: removing even one
prospective juror on the basis of race requires reversal. (People v.
Gutierrez (2017) 2 Cal.5th 1150, 1158.)
In this case, after one African-American prospective
juror was excused by stipulation, the prosecutor used a
peremptory challenge to excuse the only remaining African-
American from the jury panel. The ostensible reason: the
prosecutor’s “hesitation when it comes to therapists or anyone in
the psychology field.” Yet the prosecutor made no peremptory
challenge to an occupational therapist, nor to a psychology
student; both non-African-Americans.
“Today, as when Batson was decided, it is a troubling
reality, rooted in history and social context, that our black
citizens are generally more skeptical about the fairness of our
criminal justice system than other citizens.” (People v. Harris
(2013) 57 Cal.4th 804, 865 (conc. opn. of Liu, J.).) One reason for
that skepticism: “[T]he frequent and disproportionate exclusion of
fully capable and qualified black citizens from jury service breeds
distrust of law enforcement and ‘undermine[s] public confidence
in the fairness of our system of justice.’ [Citation.] It is for this
reason that the high court in Batson said ‘[t]he harm from
discriminatory jury selection extends beyond that inflicted on the
defendant and the excluded juror to touch the entire community.’
1
[Citation.]” (People v. Johnson (2019) 8 Cal.5th 475, 535 (dis.
opn. of Liu, J.) (Johnson).)
Our high court has warned that the use of
peremptory challenges “permits ‘those to discriminate who are of
a mind to discriminate.’ [Citation.]” (Batson v. Kentucky (1986)
476 U.S. 79, 96.) “Only if courts are vigilant can society prevent
prejudiced or unscrupulous lawyers from using peremptory
challenges as tools for unlawful discrimination. So when a trial
court has even a suspicion of discriminatory excusals, clear
precedent requires it to act by asking the party exercising the
peremptory challenge to explain why the juror is being excused.”
(Johnson, supra, 8 Cal.5th at p. 536 (dis. opn. of Cuéllar, J.),
original italics.)
That didn’t happen here. There was clearly a
sufficient basis to suspect a discriminatory purpose for the
removal of prospective Juror No. 3. The defendant here was
African-American, and all prospective African-American jurors
were removed from the panel. Moreover, the voir dire
examination of prospective Juror No. 3 on the impact of her
profession on her ability to reach a fair verdict was desultory at
best: she was never asked, unlike the occupational therapist,
whether her training “as a therapist” would inhibit her ability to
determine the question of “what” happened, rather than “why.”
The law is clear that “‘a prima facie burden is simply
to “produc[e] evidence sufficient to permit the trial judge to draw
an inference” of discrimination.’ [Citation.]” (Johnson, supra, 8
Cal.5th at p. 506, quoting Johnson v. California (2005) 545 U.S.
162, 168.) Among the most relevant factors are “whether a party
has struck most or all of the members of the venire from an
identified group, whether a party has used a disproportionate
2
number of strikes against members of that group, whether the
party has engaged those prospective jurors in only desultory voir
dire, whether the defendant is a member of that group, and
whether the victim is a member of the group to which a majority
of remaining jurors belong.” (People v. Reed (2018) 4 Cal.5th 989,
999-1000.) Here, virtually all of these factors either militate in
1
favor of finding a prima facie case or do not apply.
Once a prima facie case of unlawful discrimination is
made, the burden shifts to the prosecution to set forth legitimate
reasons for the challenge. Here, the purported reason was the
prosecutor’s concern about seating “therapists or anyone in the
psychology field” on the jury. Standing alone, this is an adequate
explanation. (People v. Clark (2011) 52 Cal.4th 856, 907.) But
that is not the end of the matter. Where, as here, non-African-
American prospective jurors sharing similar characteristics to the
excused juror are not challenged, the trial court is required to
consider the prosecutor’s reasons for retaining those prospective
jurors while excusing the African-American juror(s). (People v.
Lenix (2008) 44 Cal.4th 602, 624.) Once again, that didn’t
happen here.
To be similarly situated, prospective jurors need not
be “identical in all respects.” (Miller-El v. Dretke (2005) 545 U.S.
231, 247, fn. 6 (Miller-El).) Such a requirement “would leave
Batson inoperable; potential jurors are not products of a set of
cookie cutters.” (Ibid.) If the prosecutor’s reasons for excluding a
prospective juror “applies just as well” to an “otherwise-similar”
1
Although the majority reaches no conclusion on whether
the trial court correctly ruled that no prima facie case of
discrimination was established, I would conclude that the record
easily supports an inference of discrimination.
3
prospective juror, “that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.” (Id. at p.
241.)
Thus, in Miller-El, our high court reversed a
conviction where the prosecutor excused 10 out of 11 African-
American prospective jurors. In doing so, the court stated that
“[m]ore powerful than these bare statistics, however, are side-by-
side comparisons of some black venire panelists that were struck
and white panelists allowed to serve.” (Miller-El, supra, 545 U.S.
at p. 241.) This reasoning has consistently been applied in
subsequent United States Supreme Court cases. (See Flowers v.
Mississippi (2019) __ U.S. __ [139 S.Ct. 2228, 2247, 2249]
[prosecutor’s justification that applies to both the struck juror
and one or more seated jurors is evidence of discriminatory
intent, regardless of dissimilarities in other respects]; Foster v.
Chatman (2016) __ U.S. __ [136 S.Ct. 1737, 1751-1752, 1754]
[same].)
Here, there were two prospective jurors who shared
characteristics similar to those which the prosecutor found
wanting in prospective Juror No. 3. For one (the occupational
therapist), the prosecutor relied on longer “life experience” and
her status as a crime victim (but notably, the prosecutor did not
rely on differences between the roles of behavioral therapists and
occupational therapists). For the other prospective juror, the
prosecutor said nothing.
In the third Batson stage, the adequacy of the
prosecutor’s response must “stand or fall on the plausibility of the
reasons [they] give[]. A Batson challenge does not call for a mere
exercise in thinking up any rational basis. If the stated reason
does not hold up, its pretextual significance does not fade because
4
a trial judge, or an appeals court, can imagine a reason that
might not have shown up as false.” (Miller-El, supra, 545 U.S. at
p. 252.) “The proper focus of a Batson/Wheeler inquiry, of course,
is on the subjective genuineness of the race-neutral reasons given
for the peremptory challenge, not on the objective reasonableness
of those results.” (People v. Reynoso (2003) 31 Cal.4th 903, 924,
original italics (Reynoso).)
Our high court instructs that it is incumbent on trial
courts, when an inference of discriminatory purpose arises, to
seek the reasoning employed by the striking party for the strike.
Trial courts are precluded from speculation about those reasons
because “a direct answer can be obtained by asking a simple
question.” (Johnson v. California, supra, 545 U.S. at p. 172.)
Thus, trial courts should not “imagine a [legitimate] reason”
when “the stated reason does not hold up.” (Miller-El, supra, 545
U.S. at p. 252.) When the stated reason turns out to be false,
unsupported or pretextual, any “new explanation” is highly
suspect. (Id. at p. 246.)
Thus, in Paulino v. Castro (9th Cir. 2004) 371 F.3d
1083, 1090, the Ninth Circuit remanded the case to the trial court
with directions to hear from and consider the prosecutor’s reasons
for its peremptory challenges, where the trial court improperly
offered neutral explanations without input from the prosecutor,
noting “[i]t does not matter that the prosecutor might have had
good reasons to strike the prospective jurors. What matters is
the real reason they were stricken. The trial court did not pause
to require an actual explanation from the prosecutor.” (Original
italics.) Remand was required “so the state will have an
opportunity to present evidence as to the prosecutor’s race-
neutral reasons for the apparently-biased pattern of
5
peremptories, and determine whether the prosecutor violated
Batson.” (Id. at p. 1092.)
The same outcome is required here. Despite the trial
court’s conclusion (and that of the majority here) that the role of
an occupational therapist is “far different” than that of a
behavioral therapist, a review of the record reveals that the
prosecutor was unaware of such differences and did not offer
them as a reason. The prosecutor instead relied upon the
occupational therapist’s longer “life experience” and history as a
“crime victim.” While these reasons, if believed, would be
evidence of a legitimate non-discriminatory reason for retaining
that juror, the comparative juror analysis does not end there,
where the defense pointed out that another prospective juror
sharing the same characteristics as the excused juror, except for
race, was not excused.
Here, the prosecutor stated that he excused
prospective Juror No. 3 “primarily” because of a “hesitation when
it comes to therapists or anyone in the psychology field” and
especially because of her work with children and adolescents
(which might allegedly cause the juror to think “what went wrong
in this person’s life”); but no challenge was made to a non-
African-American psychology student whose stated ambition was
to become a high school psychologist. Despite the obvious
similarities in their professional interests and “life experience,”
the trial court did not require, and the prosecutor did not offer,
any race-neutral reasons for retaining the similarly situated non-
African-American prospective juror. Instead, the court offered up
its own observation that the retained juror “appeared” to be
Hispanic, which the court later acknowledged was irrelevant to
the question of whether African-Americans were being
6
unlawfully discriminated against. The prosecutor, however,
added nothing to this discussion. The trial court thus erred when
it relieved the prosecution from its “burden of stating a racially
neutral explanation for [its] own actions.” (Miller-El, supra, 545
U.S. at p. 252; see also Reynoso, supra, 31 Cal.4th at p. 924.)
Thirty-four years ago, Justice Marshall wrote that
the “[m]isuse of the peremptory challenge to exclude black jurors
has become both common and flagrant.” (Batson, supra, 476 U.S.
at p. 103 (conc. opn. of Marshall, J.).) In support, he referenced a
training manual in the Dallas County Texas District Attorney’s
Office which “explicitly advised prosecutors that they conduct
jury selection so as to eliminate ‘“any member of a minority
group.”’” (Id. at p. 104.)
Not much has changed. According to a recent report
by the Berkeley Law Death Penalty Clinic, the practice continues
today, only in more subtle form. (Semel et al., Whitewashing the
Jury Box: How California Perpetuates the Discriminatory
Exclusion of Black and Latinx Jurors (June 2020) p. 49
(Whitewashing the Jury Box).) For example, in Los Angeles
County, prosecutors are told to “‘bite your tongue’” if their
reasons “‘sound bogus or pretextual.’” A training manual instead
instructs them to “‘Take to court a list of acceptable justifications
which have been affirmed on appeal.’” (Ibid.) And the California
District Attorneys Association (CDAA) likewise advises that “any
justification that even hints of racism must be avoided . . . [,] if it
sounds at all offensive, do not say it.’” (Ibid.) Instead, the CDAA
tells prosecutors to offer “‘quotations where it would be most
useful to know and emulate particular language that has been
deemed proper.’” (Id. at p. 49, italics omitted.)
7
As noted in the report, prosecutors throughout the
state (and nation) are provided with lists of “race-neutral”
responses to Batson/Wheeler objections. The manual Mr. Wheeler
2
Goes to Washington lists 16 race-neutral reasons, and another
18 demeanor-based responses, so prosecutors can “‘give detailed
verbal expression to . . . subjective instincts.’” (Whitewashing the
3
Jury Box, supra, at p. 49.) The Inquisitive Prosecutor’s Guide
goes even further, listing 77 race-neutral reasons, including such
things as: too much or too little education; lack of community or
family ties or too many such relationships; or previous service on
a hung jury, or a jury that acquitted, or never having sat on a
jury at all. (Whitewashing the Jury Box, at p. 50.) As recently as
2006, the CDAA advised prosecutors: “‘If possible, keep on the
jury one or more members of each cognizable group from which
you are challenging persons’” to “‘create a record that will justify
any challenges you make.’” (Ibid.) Similarly, a 2019 Orange
County training manual suggests (1) keeping one member of a
protected group on the jury if possible, and (2) providing multiple
reasons for each peremptory challenge. (Id. at p. 49.)
It must of course be acknowledged that not every use
of the foregoing suggestions means that the challenge is
intentionally discriminatory. But the suggestions operate to
provide cover for the striking party’s reliance on their own
unconscious stereotypes or implicit bias. In his concurring
opinion, Justice Marshall warned that the new Batson procedure
2
San Francisco County District Attorney’s Office, Mr.
Wheeler Goes to Washington.
3
Santa Clara County District Attorney’s Office, The
Inquisitive Prosecutor’s Guide (June 10, 2016).
8
might prove to be an ineffective tool against implicit bias, noting
that a striking party’s “‘seat-of-the-pants instincts’” about a juror
may “be just another term for racial prejudice.” (Batson, supra,
476 U.S. at p. 106 (conc. opn. of Marshall, J.).) That sentiment
was recently echoed in People v. Bryant (2019) 40 Cal.App.5th
525, 545 (conc. opn. of Humes, P. J.): “Batson/Wheeler procedure
plainly fails to protect against—and likely facilitates—implicit
bias.” Because of the danger presented by these unconscious
stereotypes, it is imperative that courts remain vigilant in their
efforts to root out discriminatory uses of peremptory challenges,
whether intentional or resulting from implicit bias.
Because no legitimate non-discriminatory reasons
were requested from or provided by the prosecutor for not
excusing the would-be high school psychologist, I would
conditionally reverse and remand with directions to hear from
and consider the prosecutor’s reasons for excluding the sole
African-American prospective juror while retaining the
4
otherwise-similar non-African-American prospective juror.
NOT TO BE PUBLISHED.
TANGEMAN, J.
4
Although the published cases require the prosecutor to
state legitimate reasons for excluding prospective jurors, I can
discern no rational basis for a different rule when it comes to
stating reasons for not excusing otherwise-similar jurors,
particularly where, as here, the comparison was raised in the
trial court. (See People v. Jones (2011) 51 Cal.4th 346, 365-366.)
9
Laura F. Priver, Judge
Superior Court County of Los Angeles
______________________________
John F. Schuck, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Steven D. Matthews and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.
10