Filed 5/1/20 (review denied 8/31/20; reposted to include Supreme Court statements upon denial
of review)
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B298914
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA461402)
v.
YOSAYA JOHNSON TRIPLETT,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of
Los Angeles County, Drew E. Edwards, Judge. Affirmed as
modified.
Lenore De Vita, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of the Discussion post, parts A., B., and D.
Assistant Attorney General, Idan Ivri and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Yosaya Johnson Triplett of
assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1
carjacking (§ 215, subd. (a)), and attempted murder (§§ 211,
subd. (a), 664). The jury also found true allegations that
defendant personally inflicted great bodily injury in the
commission of the assault and attempted murder. (§ 12022.7,
subd. (a).) The court sentenced defendant to a prison term of
11 years 8 months.
During jury deliberations, the court denied the jury’s
request for transcripts of testimony of certain witnesses and
defense counsel’s request to inform the jurors that they could
have the testimony read back to them. In the published portion
of this opinion, we hold that the court erred by denying defense
counsel’s request. We further hold that, under the circumstances
in this case, the error was harmless.
In the unpublished portion of this opinion, we reject
defendant’s contentions that the trial court erred in denying
his Wheeler/Batson2 motion during jury selection and that
the evidence was insufficient to support the attempted murder
conviction. We also agree with defendant that a clerical error in
a sentencing minute order must be corrected, and agree with the
People that the defendant’s sentence must be corrected to include
certain assessments.
We affirm the judgment as modified to correct the sentence.
1 Subsequent statutory references are to the Penal Code.
2People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler);
Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
2
FACTUAL AND PROCEDURAL SUMMARY
A. Prosecution Evidence
In September 2017, defendant was living with her
boyfriend, Donnie Faizon, at the home of Faizon’s uncle, Russell
Allen. On the evening of September 8, 2017, while defendant
was working at a nightclub, Dalilah Young visited with Allen and
Faizon at Allen’s home.
Young testified that she left Allen’s home at 11:30 p.m.
and crossed the street to her car. A truck or sports utility
vehicle pulled up close to her car. As Young got into her car
and put her key into the ignition, defendant got out of the other
vehicle, walked to Young’s car, and pulled the car door open.
When Young stepped out of the car, defendant stabbed Young in
the head with a knife with a two-inch blade.
Young “fought back” in “[s]elf-defense.” During the
fight, defendant stabbed Young repeatedly, inflicting wounds
in Young’s temple, cheek, wrist, neck, and the side of her torso.
Defendant grabbed Young’s phone from her car and threw it into
the street. Defendant then began to choke Young, and told her,
“Look at you bitch. Fittin’ to die bleeding and shit.”
Defendant got in the driver’s seat of Young’s car and
drove forward and backward, hitting parked cars. When Young
grabbed the driver’s car door, defendant drove forward, causing
Young to hit the ground. Defendant then drove away in Young’s
car.
Young returned to Allen’s residence and Allen called 911.
Young was hospitalized for a week as a result of the
injuries she suffered in the assault. Lacerations from the eight
stab wounds varied in length from one-third of an inch to three
3
inches. One cut pierced Young’s lung and could have been fatal if
untreated. The other lacerations were superficial.
Young’s car was located five months later in a parking lot,
vandalized and damaged.
B. Defense Evidence
Defendant testified that on the night of the incident
her grandfather picked her up from the nightclub where she
worked. As they pulled up to Allen’s home, Young opened the
car door, pulled defendant out by her hair, and began beating
her. Defendant pulled a knife from her waistband and stabbed
Young to defend herself. Defendant then ran upstairs and told
Allen to call an ambulance because she had stabbed “this girl
outside.” Defendant waited for the ambulance, then left with
her grandfather, who took her to her mother’s home and then to
a motel.
Defendant explained that she keeps the knife with her
because she carries large amounts of cash when she comes home
from her work at a nightclub and she lives in a “rough” area.
She denied that she threw Young’s phone or took her car.
4
DISCUSSION
A. Denial of Defendant’s Wheeler/Batson Motion
Defendant contends that the trial court erred in denying
her Wheeler/Batson motion with respect to the prosecutor’s
peremptory challenges of two prospective female African-
American jurors. We disagree.
The following additional facts are relevant to this inquiry.
Defendant is an African-American woman who was
20 years old at the time of trial. Young is African-American
and was 21 years old at the time of trial. The jury venire
consisted of 40 people, three of whom were African-American.
Each African-American was female. The trial court excused one
of the three for cause before jury selection began. The remaining
African-American jurors were designated Juror No. 7 and
Juror No. 16.
During voir dire, the prosecutor asked the prospective
jurors: “Just by looking at [the defendant] here, is there anyone
else who thinks they might not be a fair juror because they
can’t imagine her committing an assault with a deadly weapon,
carjacking? Is there anyone who looks at her and can’t imagine
she would have done that and can’t be fair to the prosecution?”
Juror No. 7 responded: “You are saying for me to agree
that she didn’t do it by looking at her? I don't think she would
put her life—I don’t think she did it.”
The prosecutor then asked Juror No. 7: “[I]f I call
witnesses and I prove my case beyond a reasonable doubt,
would you be able to convict, or would this idea just by looking
at her that you can’t imagine her doing these things, would that
prevent you from convicting?” Juror No. 7 responded: “I haven’t
heard anything. I can’t answer that.”
5
Juror No. 16 informed the court during voir dire that she
had brothers who had been charged with crimes similar to those
charged against defendant. She also had a cousin who had been
murdered five or six years earlier, and the police investigation is
“still going on.”
In response to the question, “do you know anybody who
has been treated badly by the police or the courts,” Juror No. 16
answered: “Yes. Just growing up in L.A.” When asked about
this comment, she explained: “A black woman in L.A. with young
black brothers, I have been harassed many times” by officers.
Juror No. 16 said there was nothing about these
experiences that would impact her ability to evaluate police
testimony or to be fair in this case.
The prosecutor used two of his first four peremptory
challenges to dismiss Juror No. 7 and Juror No. 16. Defense
counsel then made a Wheeler/Batson motion.
The trial court found that the defense had established a
prima facie case of impermissible group bias and prompted the
prosecutor to state his reasons for excusing the jurors.
The prosecutor stated the following regarding Juror No. 7:
The juror “indicated she grew up in Los Angeles in the Inglewood
area and lived there her entire life. She was single, worked
retail, had not been a member of a jury, and had not been a
victim of a crime. [¶] Upon more questioning, she expressed she
lived in Inglewood her entire life—which is similar and close to
the area of where this crime occurred in South Los Angeles. [¶]
She appeared to me to be a little young. I asked questions about
what her life experience would be. She works at the Los Angeles
airport working retail. When I asked her what retail, she said
normal convenience items. It is a place she would run into
6
people. Not in a managerial position or a judgment position.
[¶] She seemed to be inexperienced to me. She did not attend
any college or advanced education after high school. I don’t
know if the court noticed, yesterday afternoon she was chewing
gum during the duration of the jury instruction. That, to me,
indicated some immaturity and disrespect for the court
proceedings. [¶] She also . . . said that it was difficult to believe
the defendant had committed this crime, assault with a deadly
weapon and attempted murder, just based on her looks and
her sitting here. [¶] I understand the court denied the People’s
motion to strike that juror for cause, but I think her feelings
about the defendant being here and being charged with the crime
might make her unfair to the People.”
Regarding Juror No. 16, the prosecutor stated the
following: “Juror number 16 indicated she lived in Leimert Park.
I believe she grew up in West L.A., married with no kids, a
registered nurse working in the emergency room. She does have
a managerial position and has been a charge nurse before. She
has not been a victim of a crime and has never served on a jury.
[¶] She said she had some relatives that were officers. She
grabbed my attention when she said some of her brothers had
been charged with similar crimes. That alone made me think I
may not want her on the jury. [¶] I tend to like jurors who have
not been a member of a jury at all. When my witnesses testify, I
want them to see testimony for the first time ever. [¶] She said
she had not talked to her brothers about the court cases or how
they turned out. I think she indicated to us the reason—or she
could be fair because she had no idea whether they were treated
fairly or not. [¶] To me, simply the fact that her brothers have
been charged with assault with a deadly weapon and attempted
7
murder is one factor in the back of her mind when she listens to
how our officers have investigated this case and whether or not
the defendant is guilty in our case.”
The prosecutor further stated: “What really concerned
the People was her answer to the court’s question to number 16.
There are many people who have grown up in L.A. and may
feel like they could be fair, could not be fair, based on their
experience. Perhaps I haven't practiced here long enough.
I never heard a juror say as a response[,] ‘I can't be fair just
growing up in L.A.’ [¶] I understand what she means. When
I asked her, she clarified saying she is a black female. She has
been harassed. It sounds like she has seen both the good and
bad of society in general. In addition, her cousin was murdered.
Apparently, that investigation is still ongoing. [¶] She may be
a fair juror. I am not convinced of that mostly because of her
answer, ‘just growing up in L.A.,’ she might not be fair. Her
brothers were charged with similar crimes. That is the bulk
of the reason. [¶] In addition to that, although it is a smaller
reason, great bodily injury is an issue in our case. I know we do
have other nurses. Those nurses do not work in the emergency
room. This juror is in a position to see injuries that are more like
what we are going to see in our case relative to the other nurse
who works in the ICU or a nurse who works in surgery, which is
less of an emergency situation.”
The court then denied the defense Wheeler/Batson motion,
stating: “As to Juror [No.] 7, the one issue that stands out to me,
Juror [No.] 7 indicated she didn’t think the defendant looked like
a person who could be guilty in this case. In my judgment, that
is a very valid race neutral position. [¶] As to [Juror No.] 16,
as the People pointed out, just living in Los Angeles, she would
8
have bias against police officer testimony. She also indicated
she had brothers charged with a similar crime and a cousin who
was murdered. In my view, those are also very valid race neutral
reasons. [¶] For those reasons, the People have established race
neutral reasons for the exclusion of both jurors, [Juror No.] 7 and
Juror [No.] 16.”
Under Wheeler, supra, 22 Cal.3d 258 and Batson, supra,
476 U.S. 79, the use of peremptory challenges to remove
prospective jurors solely on the basis of a group bias, such as
race or ethnicity, violates our state and federal constitutions.
(People v. Rhoades (2019) 8 Cal.5th 393, 423.) In evaluating
a Wheeler/Batson motion, the trial court engages in a three-step
inquiry: First, the objecting party must make a prima facie
showing of prohibited group bias; second, the burden shifts
to the party who exercised the peremptory challenge to give a
nondiscriminatory reason; and third, the trial court evaluates
the proffered reasons and determines whether the objecting party
has proven purposeful discrimination. (People v. Silva (2001)
25 Cal.4th 345, 384; Purkett v. Elem (1995) 514 U.S. 765, 767.)
“The ultimate burden of persuasion regarding [discriminatory]
motivation rests with, and never shifts from, the opponent of the
[peremptory challenge].” (People v. Lenix (2008) 44 Cal.4th 602,
612–613 (Lenix).)
Here, the court found that defendant made a prima facie
showing of discrimination and defendant does not dispute that
the prosecutor proffered nondiscriminatory reasons for excusing
Jurors No. 7 and No. 16. Defendant’s challenge is to the court’s
third-step determination that the prosecutor’s reasons for
dismissing the two African-American women were race neutral.
9
At the third step, “ ‘the issue comes down to whether
the trial court finds the prosecutor’s race-neutral explanations
to be credible. Credibility can be measured by, among other
factors, the prosecutor’s demeanor; by how reasonable, or
how improbable, the explanations are; and by whether the
proffered rationale has some basis in accepted trial strategy.’
[Citation.] In assessing credibility, the court draws upon its
contemporaneous observations of the voir dire.” (Lenix, supra,
44 Cal.4th at p. 613, fn. omitted.)
“Review of a trial court’s denial of a Wheeler/Batson
motion is deferential, examining only whether substantial
evidence supports its conclusions. [Citation.] ‘We review
a trial court’s determination regarding the sufficiency of a
prosecutor’s justifications for exercising peremptory challenges
“ ‘with great restraint.’ ” [Citation.] We presume that a
prosecutor uses peremptory challenges in a constitutional
manner and give great deference to the trial court’s ability to
distinguish bona fide reasons from sham excuses. [Citation.]
So long as the trial court makes a sincere and reasoned effort
to evaluate the nondiscriminatory justifications offered, its
conclusions are entitled to deference on appeal.’ ” (Lenix, supra,
44 Cal.4th at pp. 613–614.)
The court’s conclusion that the prosecutor provided a
race-neutral reason for excluding Juror No. 7 is supported by
the record. The prosecutor stated, among other reasons, that he
excused Juror No. 7 because the juror indicated it was difficult
for her “to believe the defendant had committed this crime,
assault with a deadly weapon and attempted murder, just based
on her looks and her sitting here.” The reason is patently race
neutral and the court’s determination of its validity is supported
10
by the prosecutor’s question to the prospective jury panel—“[i]s
there anyone who looks at [the defendant] and can’t imagine
she would have done that”—and Juror No. 7’s response: “I don’t
think she did it.” It is certainly permissible for a prosecutor to
excuse a juror who does not think the defendant “did it” based on
the mere appearance of the defendant.
Defendant contends that the particular reason the court
found credible should have been rejected because it was part
of a “laundry list” of reasons the prosecutor offered. As our
Supreme Court has explained, a prosecutor who employs the
“ ‘laundry list’ approach” at the second step of a Wheeler/Batson
motion by “positing of multiple reasons, some of which, upon
examination, prove implausible or unsupported by the facts,
can in some circumstances fatally impair the prosecutor’s
credibility.” (People v. Smith (2018) 4 Cal.5th 1134, 1157–1158.)
Trial courts should therefore “attempt to evaluate the attorney’s
statement of reasons as a whole rather than focus exclusively
on one or two of the reasons offered.” (Id. at p. 1158.) The court
is not, however, required “to make detailed comments on every
[stated] reason.” (Ibid.) “This is particularly true where the
prosecutor’s race-neutral reason for exercising a peremptory
challenge is based on the prospective juror’s demeanor, or
similar intangible factors, while in the courtroom.” (People v.
Reynoso (2003) 31 Cal.4th 903, 919.)
Here, in addition to Juror No. 7’s statement that she did
not “think [the defendant] did it,” the prosecutor pointed to facts
disclosed during voir dire that the juror lived near the location
of the crime, was young and lacked life experience, and displayed
immaturity and disrespect to the court by chewing gum during
voir dire. Defendant has not explained how any of these
11
additional reasons are implausible or factually unsupported, and
the absence of express findings by the court on each reason does
not require reversal.
Regarding Juror No. 16, the court, apparently based on
its own observations during voir dire, agreed with the prosecutor
that the juror indicated a bias against police officer testimony
“just living in Los Angeles.” The court also commented on the
fact that the juror has two brothers charged with similar crimes.
Both of these reasons, the court concluded, are “very valid race
neutral reasons.” The reasons are race neutral and supported by
the record. Juror No. 16 stated that she had “brothers” who had
been charged with crimes similar to the charged crimes in this
case. She further stated that she knows people who have been
treated badly by the police or courts, and that she has been
harassed many times as a Black woman with two young Black
brothers. The prosecutor can reasonably infer that a juror with
such experiences may be biased against police officers who testify
for the prosecution.
Defendant points out that Juror No. 16 said she has a
cousin and a brother who work in law enforcement and could be
fair despite her and her brothers’ experiences with police officers.
As our Supreme Court has explained, however, “[t]he fact that
the objector thinks his opponent should feel comfortable with the
candidate is not the relevant question. The question is whether
the advocate exercising the challenge had an honest and racially
neutral reason for doing so.” (People v. Hensley (2014) 59 Cal.4th
788, 803.) The trial court found that the prosecutor had such a
reason, and the reason is supported by the record.
12
Defendant also asserts that another person who was
ultimately selected to be on the jury and was not African-
American, was a nurse, as was Juror No. 16, and whose father
had been charged with assault on a police officer. The father’s
crime and trial took place before the juror was born, and he had
never been told “any bad stories” of the government or the police.
Significantly, the other juror did not report that he or she had
been harassed or had known anyone who had been treated badly
by police. Because the two jurors are materially dissimilar, we
reject the defendant’s argument.
For the foregoing reasons, defendant has failed to show
that the trial court erred in denying her Wheeler/Batson motion.
B. Sufficiency of the Evidence of Attempted
Murder
Defendant contends that the evidence is insufficient
to support the jury’s verdict of attempted murder. More
particularly, defendant argues that there is no substantial
evidence that defendant acted with the intent to kill Young.
We disagree.
“Attempted murder requires the specific intent
to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.” (People v. Lee
(2003) 31 Cal.4th 613, 623.) “Because direct evidence of a
defendant’s intent rarely exists, intent may be inferred from
the circumstances of the crime and the defendant’s acts.”
(People v. Sánchez (2016) 63 Cal.4th 411, 457.)
When a defendant challenges the sufficiency of the
evidence to support a judgment, “we review the whole record in
the light most favorable to the judgment to determine whether
it discloses substantial evidence—that is, evidence that is
13
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Stanley (1995) 10 Cal.4th 764, 792–793.)
“[S]ubstantial evidence encompasses circumstantial evidence
and any reasonable inferences to be drawn from such evidence.”
(People v. Lopez (2013) 56 Cal.4th 1028, 1070.)
A jury could reasonably conclude from the evidence that
defendant intended to kill Young. Although defendant’s knife
was relatively small, the location of the stabs—to the head, neck,
and torso—were vulnerable areas; even a knife with a two-inch
blade could have caused Young’s death. In addition to the
multiple stabbings in vulnerable areas, defendant told Young as
she choked her that Young was “[f]ittin’ to die bleeding,” then left
her alone in the street as she fled. Rational jurors could conclude
that these acts, viewed in their entirety, established defendant’s
intent to kill beyond a reasonable doubt.
Defendant contends that the evidence is insufficient to
support the jury’s finding of intent to kill because the evidence
“established the knife and the frenzied stabbings were a
completely unplanned reaction to the highly-emotional situation
created when appellant saw [Young] leaving the home of
[defendant’s] boyfriend Faizon.” The fact that defendant carried
a knife into the fight, she argues, does not justify a finding of
intent to kill because she was armed “for defensive purposes.”
The incident, she concludes, was merely “a physical altercation
between two young women and once the first punch was thrown
it escalated to the point where [defendant] found it necessary
to jab at [Young] with a small knife.” The argument is based
on a view of the evidence favorable to the defense, contrary
to our standard of review. When, as here, “ ‘the circumstances
14
reasonably justify the jury’s findings, the judgment may not be
reversed simply because the circumstances might also reasonably
be reconciled with a contrary finding.’ ” (People v. Letner and
Tobin (2010) 50 Cal.4th 99, 162.)
Defendant further asserts that “it was significant that
during deliberations the jury asked the trial court for a clearer
definition of ‘intent’ in regard to attempted murder.” Defendant
also refers us to the fact that the jury requested defendant’s and
Young’s testimony as an indication that the jury “struggle[d] over
the ‘intent’ element.” Although the jury’s question and request
may suggest that the jury had difficulty making its finding
of intent, our task is limited to determining whether there is
substantial evidence to support the finding it ultimately made,
and here there was.
C. Jury’s Request for Trial Transcripts
During jury deliberations, the jury asked the court for
“transcripts of witnesses: D[a]lilah Young and Yosaya Johnson
Triplett.” (Capitalization omitted.) The court informed counsel
that it intended to respond by informing the jury: “If you have a
specific question about witness testimony, ask the question. The
jury will not receive transcripts of testimony.”
Defense counsel did not object to the denial of transcripts
as such, but asked if “the court [would] let them know they
could have readback.” The court stated that doing so would
be “verging on [in]vading the jury’s province.” The jurors had
been instructed under CALCRIM Nos. 202 and 222 that they
“are entitled to have readback of testimony,” the court noted,
and “it would be inviting error to tell them they can ask for
15
readback, as they have been instructed as to that in two prior
jury instructions.”3
After some colloquy among the court and counsel, the court
stated: “I am going to make a ruling[.] I am going to give the
jury the note that I intended. The jury, in my view, has been
instructed they are entitled to readback. If they want readback
they can simply ask for it.” The court then responded to the
jury, stating: “If you a [sic] specific question about witness
testimony ask the question. The jury will not receive transcripts
of testimony.” The court submitted this response to the jury at
10:50 a.m. on the second day of deliberations. The jurors asked
no further questions of the court and, at 11:37 a.m., the jury
informed the court that it had reached a verdict.
On appeal, defendant argues that the court should
have either provided the jury with the requested testimony via
readback or reminded the jury to consult the instructions given
under CALCRIM Nos. 202 and 222—which informed the jurors
that they could request a readback of trial testimony.
Both sides point to section 1138 as the statutory authority
governing the issue. That section provides: “After the jury have
retired for deliberation, if there be any disagreement between
them as to the testimony, or if they desire to be informed on
3The court had given the following two instructions
relevant to this issue: “ ‘If there is a disagreement about the
testimony at trial, you may ask that the court reporter’s record
be read to you’ ”; and “ ‘The court reporter has made a record of
everything that was said during the trial. If you decide that it is
necessary, you may ask that the court reporter’s [sic] be read to
you. You must accept the court reporter’s record as accurate.’ ”
(See CALCRIM Nos. 202 & 222.)
16
any point of law arising in the case, they must require the officer
to conduct them into court. Upon being brought into court, the
information required must be given in the presence of, or after
notice to, the prosecuting attorney, and the defendant or his
counsel, or after they have been called.”4 (§ 1138.) Our Supreme
Court has held that section 1138 requires the trial court to
“ ‘ “satisfy requests by the jury for rereading of testimony.” ’ ”
(People v. Cox (2003) 30 Cal.4th 916, 968 (Cox), disapproved on
another ground in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22 (Doolin).)5
As the People point out, the jurors did not request a
rereading of testimony; they asked for the transcripts of the
testimony. Defendant interprets the request more broadly—
“Yes, the jury used the term ‘transcripts’ but the record makes
clear the jury wanted to consider the testimony again. It
wanted to ‘know the words’ of the two most important witnesses,
[defendant] and the alleged victim.” We agree with defendant.
There is no conceivable purpose for requesting the transcripts
other than to review and consider the words the witnesses spoke.
(See James v. Key System Transit Lines (1954) 125 Cal.App.2d
278, 283 [only reasonable interpretation of jury’s request
for transcript during deliberations was that jury sought a
4 Although the statute’s text indicates that a
“disagreement” among the jurors is a prerequisite to the right
provided by the statute, jurors have the right to have testimony
read to them even without a showing of disagreement. (People v.
Butler (1975) 47 Cal.App.3d 273, 280 (Butler).)
5Defendant does not contend that the court erred by
refusing to provide the requested transcripts of testimony to the
jury. We do not, therefore, express any view on that question.
17
reading of the transcript]; accord, Smith v. Shankman (1962)
208 Cal.App.2d 177, 184; People v. York (1969) 272 Cal.App.2d
463, 465 (York).)
In Smith v. Shankman, supra, 208 Cal.App.2d 177, the
jury asked a court bailiff during deliberations for the transcript
of the defendant’s testimony. (Id. at p. 181.) The bailiff informed
them they could not have it. (Ibid.) This was error because
the bailiff was not permitted to communicate with the jurors
on a matter other than to determine whether they had reached
a verdict. (Id. at p. 184.) Relevant here is the court’s discussion
of prejudice. “Although it is true,” the court explained, “that
the bailiff was technically correct in instructing the jurors that
the written transcript itself could not be given to them, it does
not follow that his misconduct was of no consequence. ‘While
the jury’s action did not constitute in so many words a request
for a reading of some portion of the transcript, such action can
reasonably be interpreted only as such a request. . . .’ [Citation.]
Had the bailiff properly deferred action on the jury’s request until
the trial judge had returned . . . , the jury could then have been
brought into open court . . . and the judge could have inquired
whether they desired to have portions of the relevant testimony
reread. As a result of the bailiff ’s failure to follow this procedure,
the jury’s request for the transcript was denied in such a manner
as to indicate that there was no alternative method by which
they could review testimony which they obviously considered
important.” (Ibid.) If, however, the court had been informed
of the request and “offered to have the relevant testimony reread
to the jury, it is entirely possible, as a practical matter, that
its verdict might have been affected.” (Id. at p. 185.) Smith’s
18
reasoning was adopted and applied under similar facts in a
criminal case in York, supra, 272 Cal.App.2d at pages 465–466.
Neither side has referred us to any California decision
factually on point. The Supreme Court of Florida, however,
addressed the issue under similar circumstances in Hazuri v.
State (Fla. 2012) 91 So.3d 836 (Hazuri). In that case, the jury
asked the trial court if “ ‘they get transcripts from the trial.’ ”
(Id. at p. 839.) Defense counsel requested the trial court
“ ‘advise them that they have a right to have the transcript
read back.’ ” (Ibid.) The court rejected the request, stating:
“ ‘Certainly portions of the record could be read, however, I do
believe that the accurate and correct response is that they must
rely on their own collective recollection of the evidence and we
will answer the question that way.’ ” (Ibid.) The jury returned
a guilty verdict, and the Florida Supreme Court reversed.
The Hazuri court held that “when a jury requests trial
transcripts, the trial judge should deny the request, but inform
the jury of the possibility of a read-back.” (Hazuri, supra,
91 So.3d at p. 846.) The court explained that “a jury cannot
properly fulfill its constitutionally mandated role [as factfinder]
if it cannot recall or is confused about the testimony presented
in a case. Thus, in order to assist the jury in completing
its fact-finding mission, trial courts should apply a liberal
construction to a jury’s request for transcripts. In other words,
a jury’s request for transcripts of testimony should prompt
a judge to inform the jury of the potential availability of a
read-back of testimony.” (Id. at p. 845.) “Whether a jury asks
for transcripts of witness testimony or rather uses the term
‘read-back,’ ” the court continued, “it is clear that the jury is
requesting a review of trial testimony. A jury is composed of
19
laypersons often unfamiliar with legal terms of art, and there
should be no magic words required for a read-back request,
especially when the intent of the jury’s request for transcripts
is clear. Failing to require further instruction concerning a
read-back after a jury has requested transcripts leaves the jury
without the means to refresh its memory of witness testimony—
testimony that could be critical to the outcome of the verdict.”
(Ibid., fn. omitted.) We find this reasoning persuasive and hold
that the court in this case erred in construing the jury’s request
narrowly as a request for transcripts—not a request for a
readback of testimony—and in failing to inform or remind the
jury of their right to a readback of testimony.
This error requires reversal only if prejudice is shown.
(People v. Frye (1998) 18 Cal.4th 894, 1007 (Frye), disapproved
on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22;
People v. Litteral (1978) 79 Cal.App.3d 790, 797.) Although
defendant contends that “the error is of federal constitutional
dimension,” our Supreme Court has held that errors in the
readback requirement are errors of state law that do not
implicate federal constitutional rights. (See, e.g., Cox, supra,
30 Cal.4th at p. 968; accord, People v. Lucas (2014) 60 Cal.4th
153, 301 (Lucas), disapproved on another ground in People v.
Romero and Self (2015) 62 Cal.4th 1, 53–54, fn. 19.) Because the
error is a violation of state law, prejudice is determined under the
Watson standard. (People v. Box (2000) 23 Cal.4th 1153, 1214,
disapproved on another ground in People v. Martinez (2010) 47
Cal.4th 911, 948, fn. 10; People v. Roberts (1992) 2 Cal.4th 271,
326 (Roberts); People v. Ainsworth (1988) 45 Cal.3d 984, 1020
(Ainsworth).) Under that standard, we will reverse the judgment
only if, after an examination of the entire cause, it is reasonably
20
probable that defendant would have obtained a more favorable
result in the absence of the error. (People v. Watson (1956) 46
Cal.2d 818, 836–837 (Watson).) The defendant has the burden of
demonstrating prejudice under this standard. (Roberts, supra,
2 Cal.4th at p. 326; Lucas, supra, 60 Cal.4th at p. 263.)
Whether the denial of a readback of testimony is prejudicial
depends upon the circumstances of the particular case. (Butler,
supra, 47 Cal.App.3d at p. 284.) In evaluating prejudice, courts
have considered juror communications regarding the reason
for the readback request (see id. at pp. 277–279, 284) and the
reviewing court’s own evaluation of the testimony (see Frye,
supra, 18 Cal.4th at p. 1008, Ainsworth, supra, 45 Cal.3d at
p. 1020).
Here, defendant points out that “the testimony
requested was that of the key witnesses in the case”—Young
and defendant—and argues that the refusal to read back their
testimony “affected the outcome and verdict, and as such, it is
reasonably probable that a result more favorable to appellant
would have occurred had the requested testimony been reread.”
The argument, however, is conclusory and asserted without
citation to the record or evaluation of the evidence adduced at
trial. Even were we to consider the entirety of the testimony of
both witnesses, defendant has failed to show that the outcome at
trial would have been different given the utter implausibility of
defendant’s testimony.
Although defendant testified that her multiple stabbings
of Young were in self-defense, her explanation is implausible.
Defendant’s uncorroborated testimony implies that Young was
lying in wait for defendant to arrive home and decided to assault
defendant, without a weapon, in the presence of defendant’s
21
grandfather. After the assault, defendant remained in the area
while police and paramedics tended to Young, but she never
reported Young’s alleged assault of her, preferring, she explained,
to wait until the police came to her one or two weeks later.
Although she was living at Allen’s home with Faizon at the time,
she left the scene that night to go, eventually, to a motel. Such
behavior is inconsistent with being the victim of an assault and
supports Young’s version that defendant was the aggressor.
Young’s testimony, by contrast, provided a coherent and plausible
narrative of events that was consistent with the prosecution’s
theory that defendant attacked Young in a fit of jealous rage
upon seeing Young leaving her boyfriend’s home.
In short, whatever the jury’s disagreement or confusion
prompting it to request the transcript, a readback of the
testimony would only have made obvious the porous quality
of defendant’s defense and confirmed Young’s testimony that
defendant was the aggressor. Stated differently, after reviewing
the transcripts as part of our “ ‘examination of the entire cause’ ”
(Watson, supra, 46 Cal.2d at p. 836), we are of the opinion that
if the testimony had been read to the jury, it is not reasonably
probable the result would have been more favorable to the
defendant. The error, therefore, was not prejudicial.
Defendant relies on Butler, supra, 47 Cal.App.3d 273,
in which the Court of Appeal held that an erroneous denial
of a jury’s request to reread the testimony of five witnesses
was prejudicial. Significantly, the jury foreman in that case, in
making the request for the readback, explained that “ ‘[s]ome of
[the testimony] was so faint we couldn’t really hear it correctly,
clear.’ ” (Id. at p. 278.) The trial court denied the request and
directed the jurors to “ ‘do your very best to arrive at a verdict
22
based on the information that you have’ ” (id. at p. 279, italics
omitted)—a direction the Court of Appeal described as amounting
to “jury coercion” (id. at p. 283). Under these circumstances,
the Court of Appeal held that the error was prejudicial because
“the outright refusal of the jury’s request committed the jury
to the questionable task of reaching its decisions on the basis
of incomplete evidence imperfectly heard.” (Id. at p. 284.)
Here, by contrast, our record does not reveal what
prompted the jury’s request for transcripts and there is no reason
to believe that any juror was unable to hear or understand the
testimony during trial. Moreover, in denying the request
for transcripts, the court in this case informed the jurors that
they could ask any specific question they had about witness
testimony. The fact that no question was thereafter posed
implies that whatever prompted the request for transcripts was
either resolved or ultimately unnecessary to the jury’s decision.
Defendant also asserts that the People “cannot establish
the error was harmless.” As stated above, however, errors
in failing to comply with section 1138’s readback requirement
are errors of state law for which defendant must demonstrate
prejudice. (See Ainsworth, supra, 45 Cal.3d at p. 1020.)
Defendant has failed to do so here.
D. Correction of Minute Order and Imposition of
Assessments
The jury found not true the enhancement allegation
that, in the commission of the carjacking, defendant personally
inflicted great bodily injury upon Young within the meaning
of section 12022.7. A minute order reflecting the verdicts,
however, incorrectly states that the jury found that allegation
23
true. Defendant requests that we direct the court to correct
the clerical error. The People agree. We will so direct.
The court imposed a single court facilities assessment
of $30, pursuant to Government Code section 70373,
subdivision (a)(1), and a single court operations assessment
of $40, pursuant to section 1465.8, subdivision (a)(1). The
People contend, and defendant does not dispute, that the court
was required to impose these fees for each of the three felonies
of which defendant was convicted and that the sentence must
be corrected accordingly. We agree. (See People v. Hicks (2019)
40 Cal.App.5th 320, 324; People v. Roa (2009) 171 Cal.App.4th
1175, 1181.)
24
DISPOSITION
The court shall issue a minute order correcting
nunc pro tunc to April 18, 2019, the minute order issued that
date to reflect the jury’s not true finding as to the allegation
that the defendant personally inflicted great bodily injury upon
Young in the commission of the carjacking charged in count 2
of the information.
The judgment is modified such that a $30 court facilities
assessment, pursuant to Government Code section 70373,
subdivision (a)(1), and a $40 court operations assessment,
pursuant to Penal Code section 1465.8, subdivision (a)(1),
is imposed as to each of the three counts of which defendant
stands convicted. The court shall issue a minute order reflecting
this modification, amend the abstract of judgment accordingly,
and send a copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
ROTHSCHILD, P. J.
We concur:
BENDIX, J. WEINGART, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
25
Filed 8/31/20
Court of Appeal, Second Appellate District, Division One - No. B298914
S262052
IN THE SUPREME COURT OF CALIFORNIA
En Banc
________________________________________________________________________
THE PEOPLE, Plaintiff and Respondent,
v.
YOSAYA JOHNSON TRIPLETT, Defendant and Appellant.
________________________________________________________________________
The petition for review is denied.
Liu, Cuéllar and Kruger, JJ., are of the opinion the petition should be granted.
______________________________
Chief Justice
PEOPLE v. TRIPLETT
S262052
Statement by Chief Justice Cantil-Sakauye
This past January, this court created a Jury Selection
Work Group to examine and report on issues of discrimination
and inclusivity in the selection and composition of juries in
California courts. This group, constituted of justices, judges,
and attorneys with extensive experience in jury selection, has
begun its work and will continue to study and discuss these
issues over the months ahead. Their efforts will make an
important contribution to the ongoing multibranch assessment
of jury selection practices in this state.
Among the subjects before the work group are how Batson
v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978)
22 Cal.3d 258 operate in practice in California. The work group
will consider whether modifications to Batson/Wheeler — in
addition to any that may be adopted before the work group
completes its efforts (e.g., Assem. Bill No. 3070 (2019–2020 Reg.
Sess.) as amended Aug. 21, 2020) — or other measures are
warranted to address impermissible discrimination in jury
selection. These issues are important and worthy of close
consideration.
The work group was convened for the purpose of obtaining
the independent views and judgment of its members. It should
be understood that neither the court’s denial of review in this
case or other cases, nor the views expressed in any separate
statement from a denial of review, represent an effort to
influence the work group’s deliberations by indicating how a
PEOPLE v. TRIPLETT
Cantil-Sakauye, C. J., statement upon denial of review
justice or justices would decide any of the issues that may be
presented. A denial of review does not necessarily convey how
the court would resolve the issues raised in a petition for review.
(See Cal. Rules of Court, rule 8.500(b).) Review may be denied,
for example, when issues or facts in the record beyond those
emphasized by a petitioner may make a case a poor vehicle
through which to resolve the issue(s) presented for review.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
GROBAN, J.
2
PEOPLE v. TRIPLETT
S262052
Dissenting Statement by Justice Liu
Defendant Yosaya Johnson Triplett, a 20-year-old Black
woman, was convicted at trial and sentenced to an 11-year
prison term for the attempted murder of a Black woman and
related offenses. The jury venire began in Los Angeles with 40
people, three of whom were Black. Before voir dire, the court
excused one Black juror for cause, and the prosecutor exercised
his first peremptory strike on another Black juror. Soon after,
the prosecutor used his fourth strike to dismiss Prospective
Juror No. 16, the last remaining Black juror.
Triplett objected to the strike of Prospective Juror No. 16
as racially motivated under Batson v. Kentucky (1986) 476 U.S.
79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258. The
court found a prima facie case of racial discrimination and asked
the prosecutor to explain his reasons. The prosecutor said he
struck Prospective Juror No. 16 “mostly because of her answer,
‘just growing up in L.A.,’ she might not be fair.”
Earlier, the court had asked each juror, “[D]o you know
anybody who has been treated badly by the police or the court?”
Prospective Juror No. 16 responded: “Yes. Just growing up in
L.A.” When asked to elaborate, she explained: “A Black woman
in L.A. with young Black brothers, I have been harassed many
times” by police. The court and the prosecutor followed up on
Prospective Juror No. 16’s answers by asking if she could be a
fair juror and impartially consider police testimony in Triplett’s
case despite her personal experiences. Prospective Juror No. 16
PEOPLE v. TRIPLETT
Liu, J., dissenting
repeatedly and unequivocally said yes. Nevertheless, the court
accepted the prosecutor’s primary reason for striking her,
saying, “[A]s the People pointed out, just living in Los Angeles,
she would have bias against police officer testimony.” According
to the court, her experiences with law enforcement were a “very
valid race neutral reason[].” Her removal left the venire devoid
of Black jurors, and Triplett was convicted by a panel with no
Black jurors. The Court of Appeal affirmed.
This case lies in the heartland of the high court’s holding
in Batson: “Exclusion of [B]lack citizens from service as jurors
constitutes a primary example of the evil the Fourteenth
Amendment was designed to cure,” and “the State denies a
[B]lack defendant equal protection of the laws when it puts h[er]
on trial before a jury from which members of h[er] race have
been purposefully excluded.” (Batson, supra, 476 U.S. at p. 85.)
The conclusion reached by the lower courts here — that
Prospective Juror No. 16’s experience being “harassed many
times” by police as “[a] Black woman in L.A.” constitutes a “very
valid race neutral reason[]” for her removal (italics added) — is
quite troubling. I acknowledge that our precedent may support
this ruling. But as this case illustrates, Batson’s guarantee
rings hollow when it is understood to allow prosecutors to strike
Black jurors for reasons that systematically function as proxies
for the jurors’ race.
Although this issue is on the radar of the Legislature and
our recently appointed jury selection work group, it remains an
important doctrinal issue that this court should revisit. It is not
clear that pending legislation to address this issue would affect
cases already tried. (Assem. Bill No. 3070 (2019–2020 Reg.
Sess.) § 2, subd. (i), as amended Aug. 21, 2020 [“This section
applies in all jury trials in which jury selection begins on or after
2
PEOPLE v. TRIPLETT
Liu, J., dissenting
January 1, 2022.”].) And given our usual timeline for disposition
of granted cases, our review of this matter would in all likelihood
derive the benefit of the jury selection work group’s efforts. In
light of mounting concerns about the efficacy of Batson and
distrust of law enforcement and the justice system arising from
the experiences of Black Americans, I would grant the petition
for review.
I.
Prospective Juror No. 16 grew up in Los Angeles and lived
in Leimert Park at the time of the trial. Married without
children, she had been a registered nurse for more than eight
years and had supervised a hospital emergency department.
She said she would not be more sympathetic to someone who
was injured and would not vote to convict Triplett unless the
charges were proven beyond a reasonable doubt. Prospective
Juror No. 16 had never served on a jury and had never been the
victim of a crime.
During voir dire, the court listened to Prospective Juror
No. 16’s responses to its oral questionnaire, and the following
colloquy ensued:
“[Prospective Juror No. 16]: I do have contact with
law enforcement, both family and friends.
[¶] . . . [¶]
“[Court]: The folks you know that work in law
enforcement, do you talk to them about their work?
“[Prospective Juror No. 16]: Sometimes.
“[Court]: Is there anything about those
conversations which makes you think you cannot
judge police officer testimony fairly?
“[Prospective Juror No. 16]: No.
3
PEOPLE v. TRIPLETT
Liu, J., dissenting
“[Court]: Once again, could you follow my
instructions to follow a police officer’s testimony the
same way you would judge anyone else[’s]
testimony?
“[Prospective Juror No. 16]: I can.”
The court continued:
“[Court]: [Question] 10, people you know who work
in law enforcement or the court system.
“[Prospective Juror No. 16]: So a relative that works
in law enforcement. I have a cousin who is an officer,
and a brother.
“[Court]: [Question] 13 is the one about anybody you
know who has been charged with a crime.
“[Prospective Juror No. 16]: Brothers.
“[Court]: “Were the crimes your brothers were
charged with similar to the charges in this case, or
different?
“[Prospective Juror No. 16]: Similar.
“[Court]: Is there anything about their experiences
which makes you think you cannot be a fair juror in
this type of case?
“[Prospective Juror No. 16]: No.
“[Court]: We are going to ask you to put aside their
experiences, listen to the evidence in this particular
trial, make your decision of guilty or not guilty based
on the evidence in this case. If I were to give that
instruction to you, you could follow that?
“[Prospective Juror No. 16]: Yes.
4
PEOPLE v. TRIPLETT
Liu, J., dissenting
“[Court]: [Question 14,] do you know anybody who
has been treated badly by the police or the court?
“[Prospective Juror No. 16]: Yes. Just growing up
in L.A.
“[Court]: You are likely to hear some police officer
testimony in this case. Anything about those
experiences which would make you think you would
have a difficult time judging police officer testimony
fairly?
“[Prospective Juror No. 16]: No.”
Later, the prosecutor entered into the following discussion
with Prospective Juror No. 16:
“[Prosecutor]: You mentioned your brothers have been
charged with similar crimes. Do you know which crimes?
“[Prospective Juror No. 16]: Similar to [Triplett’s].
Murder and assault.
“[Prosecutor]: Did you talk to your brothers about what
happened with the cases?
“[Prospective Juror No. 16]: (Nodded.)
“[Prosecutor]: When they talked to you, did you get the
feeling they were treated fairly or unfairly?
“[Prospective Juror No. 16]: Fairly.
“[Prosecutor]: Is there anything about those cases you
believe would make you unfair in this case?
“[Prospective Juror No. 16]: No.”
The prosecutor also probed Prospective Juror No. 16’s
previous experiences with law enforcement and the legal
system:
5
PEOPLE v. TRIPLETT
Liu, J., dissenting
“[Prosecutor]: You said there was a yes answer on the
questionnaire. You said just growing up in L.A.
“[Prospective Juror No. 16]: A Black woman in L.A. with
young Black brothers, I have been harassed many times.
“[Prosecutor]: By officers?
“[Prospective Juror No. 16]: Yeah.
“[Prosecutor]: Is there anything about those experiences
that makes you feel you might be unfair on this jury?
“[Prospective Juror No. 16]: No. It is the good and the
bad. I work with a lot of officers at work. I know a lot of
people.
“[Prosecutor]: You have seen both sides of officers?
“[Prospective Juror No. 16]: Yeah.
“[Prosecutor]: How long ago was your cousin murdered?
“[Prospective Juror No. 16]: Five or six years ago.
“[Prosecutor]: Was that investigated by [the Los Angeles
Police Department]?
“[Prospective Juror No. 16]: No.
“[Prosecutor]: Is there anything about that investigation
that might —
“[Prospective Juror No. 16]: No. It is still going on.
“[Prosecutor]: Are there any frustrations with that that
might bleed over into LAPD?
“[Prospective Juror No. 16]: No.”
The prosecutor did not challenge Prospective Juror No. 16
for cause, nor did the court excuse her on its own motion. (Code
Civ. Proc., § 225, subd. (b).) In other words, the record contains
no suggestion that Prospective Juror No. 16 possessed “[i]mplied
6
PEOPLE v. TRIPLETT
Liu, J., dissenting
bias” or “[a]ctual bias” against either party. (Id., subd. (b)(1)(B),
(C).)
Near the close of jury selection, the prosecutor used his
fourth peremptory strike against Prospective Juror No. 16, the
last remaining Black juror. In response to Triplett’s
Batson/Wheeler challenge, the prosecutor offered three reasons
for removing her. He began by asserting that although she “had
some relatives that were officers,” she “grabbed my attention
when she said some of her brothers had been charged with
similar crimes. That alone made me think I may not want her
on the jury . . . . She said she had not talked to her brothers
about the court cases or how they turned out. I think she
indicated to us the reason — or she could be fair because she had
no idea whether they were treated fairly or not. [¶] To me,
simply the fact that her brothers have been charged with assault
with a deadly weapon and attempted murder is one factor in the
back of her mind when she listens to how our officers have
investigated this case and whether or not the defendant is guilty
in our case.”
The prosecutor then stated his principal concern: “What
really concerned the People was her answer to the court’s
question . . . . There are many people who have grown up in L.A.
and may feel like they could be fair, could not be fair, based on
their experience. Perhaps I haven’t practiced here long enough.
I never heard a juror say as a response[,] ‘I can’t be fair just
growing up in L.A.’ [¶] I understand what she means. When I
asked her, she clarified saying she is a Black female. She has
been harassed. It sounds like she has seen both the good and
bad of society in general. In addition, her cousin was murdered.
Apparently, that investigation is still ongoing. [¶] She may be a
7
PEOPLE v. TRIPLETT
Liu, J., dissenting
fair juror. I am not convinced of that mostly because of her
answer, ‘just growing up in L.A.’ She might not be fair.”
Finally, the prosecutor observed, “[A]lthough it is a
smaller reason, great bodily injury is an issue in our case. I
know we do have other nurses. Those nurses do not work in the
emergency room. This juror is in a position to see injuries that
are more like what we are going to see in our case relative to the
other nurse who works in the [intensive care unit] or a nurse
who works in surgery, which is less of an emergency situation.”
In rejecting Triplett’s motion, the trial court said: “As to
[Prospective Juror No.] 16, as the People pointed out, just living
in Los Angeles, she would have bias against police officer
testimony. She also indicated she had brothers charged with a
similar crime and a cousin who was murdered. In my view,
those are also very valid race neutral reasons.”
The Court of Appeal affirmed, concluding that the
prosecutor’s strike against Prospective Juror No. 16 was race-
neutral because the record showed “she had ‘brothers’ who had
been charged with crimes similar to the charged crimes in this
case. She further stated that she knows people who have been
treated badly by the police or courts, and that she has been
harassed many times as a Black woman with two young Black
brothers. The prosecutor can reasonably infer that a juror with
such experiences may be biased against police officers who
testify for the prosecution.”
II.
The prosecutor’s explanations for striking Prospective
Juror No. 16 are problematic for several reasons. As I explain,
the record shows that the prosecutor repeatedly
mischaracterized the juror’s voir dire answers. The
discrepancies suggest that the prosecutor had in mind a certain
8
PEOPLE v. TRIPLETT
Liu, J., dissenting
narrative about Prospective Juror No. 16 as a Black woman
growing up in Los Angeles. Instead of paying attention to what
Prospective Juror No. 16 actually said, the prosecutor —
whether consciously or not — appeared to mold her answers to
fit that narrative.
The prosecutor’s principal reason for striking Prospective
Juror No. 16 — “[w]hat really concerned the People” — was her
response to the question: “Do you know anybody who has been
treated badly by the police or the courts?” She replied, “[As a]
Black woman in L.A. with young Black brothers. I have been
harassed many times” by officers. She then confirmed that
despite this harassment, she would be a fair juror because she
has witnessed “the good and the bad” of law enforcement by
collaborating with police officers through her work as a nurse
and having a brother and cousin who are police officers.
When the prosecutor stated the main reason for his
peremptory strike, however, he misrepresented her response.
The prosecutor told the court that Prospective Juror No. 16 said
she “ ‘can’t be fair just growing up in L.A.’ ” He continued, “I
understand what she means. When I asked her, she clarified
saying she is a Black female. She has been harassed. . . . I am
not convinced of that mostly because of her answer, ‘just growing
up in L.A.,’ she might not be fair.” But Prospective Juror No. 16
said no such thing. Her remark — “just growing up in L.A.” —
was simply a response to the question whether she knew anyone
who has been treated badly by the police or courts. At no point
did she say she “ ‘can’t be fair’ ” because of her experiences; in
fact, she repeatedly said the opposite. The trial court took the
prosecutor’s characterization of Prospective Juror No. 16’s
answer at face value, without checking the record to review
9
PEOPLE v. TRIPLETT
Liu, J., dissenting
what she actually said. The trial court’s ruling in this regard
should not be accorded deference.
The prosecutor’s other stated reasons for striking
Prospective Juror No. 16 are also unavailing. While
acknowledging that she had a brother and a cousin serving as
police officers, the prosecutor’s first reason for striking her was
that she had brothers who had been charged with similar
crimes. He then claimed that Prospective Juror No. 16 “said she
had not talked to her brothers about the court cases or how they
turned out. I think she indicated to us the reason — or she could
be fair because she had no idea whether they were treated fairly
or not.”
But the prosecutor’s characterization is again belied by
the record. The exchange actually proceeded as follows:
“[Prosecutor]: Did you talk to your brothers about what
happened with the cases?
“[Prospective Juror No. 16]: (Nodded.)
“[Prosecutor]: When they talked to you, did you get the
feeling they were treated fairly or unfairly?
“[Prospective Juror No. 16]: Fairly.
“[Prosecutor]: Is there anything about those cases you
believe would make you unfair in this case?
“[Prospective Juror No. 16]: No.”
As the record shows, the prosecutor was incorrect in stating that
Prospective Juror No. 16 “said she had not talked to her brothers
about the court cases or how they turned out,” and not once did
Prospective Juror No. 16 say “she had no idea whether [her
brothers] were treated fairly or not.” Instead, Prospective Juror
No. 16 said she was familiar with her brothers’ cases, and she
10
PEOPLE v. TRIPLETT
Liu, J., dissenting
confirmed that they had been treated “[f]airly” by the system
and that their cases would not affect her impartial evaluation of
Triplett’s case. She again underscored that her interactions
with the police included both “the good and the bad” because she
regularly engages with officers through her work and has
relatives in law enforcement. Yet the trial court accepted this
reason as race-neutral, again without checking the record or
noticing these discrepancies. The trial court’s ruling in this
regard is likewise not entitled to deference.
The prosecutor’s third reason for striking Prospective
Juror No. 16 was her job as an emergency room nurse. The
prosecutor said this was “a smaller reason,” and the trial court
did not rely on it in its ruling. The prosecutor acknowledged
that he did not strike two non-Black jurors who were nurses but
sought to distinguish Prospective Juror No. 16 by noting that
the injuries she would see in Triplett’s case would be similar to
the ones she sees specifically as an emergency room nurse.
But it is not clear that the other two nurses, who worked
in an intensive care unit and a surgery unit, respectively, are so
easily distinguished, and the prosecutor did not ask either
Prospective Juror No. 16 or the other two nurses about the type
of injuries they see in their jobs. (See Miller-El v. Dretke (2005)
545 U.S. 231, 246 [“[T]he prosecution asked nothing further
about the [purported reason], as it probably would have done if
the [reason] had actually mattered.”]; id. at p. 250, fn. 8 [“the
failure to ask undermines the persuasiveness of the claimed
concern”]; People v. Gutierrez (2017) 2 Cal.5th 1150, 1170 [lack
of inquiry by the prosecutor “raises a question as to how
interested he was in meaningfully examining” the issue
proffered as a reason for a contested strike].) Further
diminishing the prosecutor’s credibility is the fact that he did
11
PEOPLE v. TRIPLETT
Liu, J., dissenting
not attempt to strike Prospective Juror No. 13, a nurse whose
father had been convicted of assaulting a police officer. (See
Miller-El, at p. 241 [“If a prosecutor’s proffered reason for
striking a [B]lack panelist applies just as well to an otherwise-
similar nonblack who is permitted to serve, that is evidence
tending to prove purposeful discrimination to be considered at
Batson’s third step.”].)
The final reason stated by the prosecutor and cited by the
trial court was that Prospective Juror No. 16 had a cousin who
was murdered. But when questioned about this, Prospective
Juror No. 16 said that the investigation was ongoing and that
she had no “frustrations with [the investigation] that might
bleed over into LAPD.” In any event, this one reason does not
substantially negate the considerable suspicion arising from the
mischaracterizations underlying the prosecutor’s other stated
reasons.
III.
Apart from the concerns above, the prosecutor’s primary
reason for striking Prospective Juror No. 16 raises a deeper
issue worthy of our review: Is it truly race-neutral to strike a
Black juror for saying that because of “[j]ust growing up in L.A.,”
she knew people who had been treated badly by the police or the
courts, and that as “[a] Black woman in L.A. with young Black
brothers,” she had experienced harassment by police? The fact
that these everyday experiences of Black Americans are
considered legitimate grounds for a peremptory strike — even
when a juror unequivocally says she will be fair and follow the
law, and even when there is no basis to remove the juror for
cause — goes a long way to explaining why Batson “has been
roundly criticized as ineffectual in addressing the
discriminatory use of peremptory challenges during jury
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Liu, J., dissenting
selection.” (State v. Holmes (Conn. 2019) 221 A.3d 407, 411.) It
may also help explain why a substantial majority of Americans
believe the criminal justice system treats Blacks less fairly than
whites. (Horowitz et al., Pew Research Center, Race in America
2019 (Apr. 9, 2019) pp. 11, 46 [84% of Black respondents, 63% of
white respondents, and 67% of all respondents in a survey of
6,637 U.S. adults expressed that belief].)
No great sociological inquiry is needed to understand the
problematic nature of the strike at issue here. Countless studies
show that Black Americans are disproportionately subject to
police and court intervention, even when they are no more likely
than whites to commit offenses warranting such coercive action.
For example, studies show that Black and white Americans use
and sell illegal drugs at nearly identical rates. (See, e.g., U.S.
Dept. of Health & Human Services, Results from the 2011
National Survey on Drug Use and Health: Summary of National
Findings (Sept. 2012) pp. 23–24; Rosenberg et al., Comparing
Black and White Drug Offenders: Implications for Racial
Disparities in Criminal Justice and Reentry Policy and
Programming (2016) 47 J. Drug Issues 132, 136.) But “[i]n some
states, black men have been admitted to prison on drug charges
at rates twenty to fifty times greater than those of white men.”
(Alexander, The New Jim Crow: Mass Incarceration in the Age
of Colorblindness (2010) p. 7; see id. at pp. 5–7 [tracing the
historical roots of the disproportionate incarceration of Black
Americans to slavery and Jim Crow].)
A 2019 study found that Black drivers in Los Angeles are
substantially more likely to be pulled over, searched, and
detained or handcuffed by the police than white drivers, even
though “whites are more likely to be found with illegal items.”
(Poston & Chang, LAPD searches blacks and Latinos more. But
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PEOPLE v. TRIPLETT
Liu, J., dissenting
they’re less likely to have contraband than whites, L.A. Times
(Oct. 8, 2019).) “Of the more than 385,000 drivers and
passengers pulled over by the LAPD . . . 27% were black, in a
city that is about 9% black.” (Ibid.) “24% of black drivers and
passengers were searched, compared with 16% of Latinos and
5% of whites . . . . [¶] That means a black person in a vehicle
was more than four times as likely to be searched by police as a
white person, and a Latino was three times as likely.” (Ibid.)
“Blacks and Latinos were more than three times as likely as
whites to be removed from the vehicle and twice as likely to
either be handcuffed or detained at the curb.” (Ibid.)
In People v. Buza (2018) 4 Cal.5th 658, I observed that the
state’s retention of DNA collected from felony arrestees
“predictably burdens certain groups. African-Americans, who
are 6.5 percent of California’s population, made up 20.3 percent
of adult felony arrestees in 2016. [Citations.] Yet they
comprised 24.3 percent of felony arrestees who were released by
law enforcement or the prosecuting attorney in 2016 before any
court disposition. [Citation.] Non-Hispanic Whites, by contrast,
comprised 31.2 percent of felony arrestees but only 27.0 percent
of felony arrestees released by law enforcement or the
prosecuting attorney. [Citations.] The fact that felony arrests
of African-Americans disproportionately result in no charges or
dropped charges means that African-Americans are
disproportionately represented among the thousands of DNA
profiles that the state has no legal basis for retaining.” (Id. at
p. 698 (dis. opn. of Liu, J.).)
At the same time, Black Americans are often inadequately
protected by the police, which also contributes to their negative
perceptions of law enforcement and the justice system. This
underprotection takes various forms, including “unsolved
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PEOPLE v. TRIPLETT
Liu, J., dissenting
homicides, permitted open-air drug markets, slow or
nonexistent 911 responses, and the tolerance of pervasive, low
levels of violence, property crimes, and public disorder.”
(Natapoff, Underenforcement (2006) 75 Fordham L.Rev. 1715,
1723; see Brunson, Protests focus on over-policing. But under-
policing is also deadly., Washington Post (June 12, 2020);
Kennedy, Race, Crime, and the Law (1997) pp. 29–75.) Between
2008 and 2018, “police in 52 of the nation’s largest cities . . .
failed to make an arrest in nearly 26,000 killings . . . . In more
than 18,600 of those cases, the victim . . . was black. [¶] Black
victims, who accounted for the majority of homicides, were the
least likely of any racial group to have their killings result in an
arrest . . . . While police arrested someone in 63 percent of the
killings of white victims, they did so in just 47 percent of those
with black victims.” (Lowery et al., Murder with Impunity: An
Unequal Justice, Washington Post (July 25, 2018).) No wonder
Black Americans in highly policed communities “characterize
police as contradictory — everywhere when surveilling people’s
everyday activity and nowhere if called upon to respond to
serious harm.” (Prowse et al., The State from Below: Distorted
Responsiveness in Policed Communities (2019) 56 Urban Affairs
Rev. 1423, 1423.)
Racial disparities in policing also affect children attending
public schools. (See In re A.N. (2020) 9 Cal.5th 343, 365, 367–
369 (conc. opn. of Liu, J.) [discussing the “school-to-prison
pipeline” in the context of truancy].) According to the National
Juvenile Justice Network, “Black and Latino students [in Los
Angeles] are 6 times to 29 times more likely than white students
to be ticketed for the same exact behavior.” (Community Rights
Campaign, Black, Brown, and Over-Policed in L.A. Schools (Oct.
2013) p. 6.) Other studies have shown that Black students are
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PEOPLE v. TRIPLETT
Liu, J., dissenting
disproportionately punished for low-level offenses based on
subjective judgment, such as “disrespect” of authorities,
whereas white students “were significantly more likely than
[B]lack students to be referred” for more serious and objective
offenses like “smoking, leaving without permission, vandalism,
and obscene language.” (Skiba et al., The Color of Discipline:
Sources of Racial and Gender Disproportionality in School
Punishment (2002) 34 Urban Rev. 317, 332, italics omitted.)
Predominantly Black schools are the settings where school
resource officers are “most likely . . . to use extreme punitive
discipline” that “ignore[s] white rule-breakers, but make[s] an
example of African American rule-breakers.” (Irwin et al., The
Race to Punish in American Schools: Class and Race Predictors
of Punitive School-Crime Control (2013) 21 Critical Criminology
47, 50.) In light of such disparate treatment by school
authorities, minority students are “more likely to hold less
positive attitudes toward the police” — a perception that
“form[s] quite early in life for many minority youth.” (Hurst &
Frank, How kids view cops: The nature of juvenile attitudes
toward the police (2000) 28 J. Crim. Just. 189, 200.)
Such experiences and perceptions continue into
adulthood. In a 2020 Kaiser Family Foundation poll, 21 percent
of Black adults, compared to 3 percent of whites, reported being
a victim of police violence, and 30 percent of Black adults,
compared to 3 percent of whites, reported unfair treatment in
their interactions with police. (Hamel et al., KFF Health
Tracking Poll - June 2020 [as of
Aug. 31, 2020].) In a 2017 survey of 3,453 United States adults
by the Harvard School of Public Health, 60 percent of Black
respondents, compared to 6 percent of whites, said they or a
family member had been unfairly stopped or treated by the
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PEOPLE v. TRIPLETT
Liu, J., dissenting
police because of their race, and 45 percent of Black
respondents, compared to 7 percent of whites, said they or a
family member had been treated unfairly by the courts because
of their race. (Harvard School of Public Health, Discrimination
in America: Experiences and Views of African Americans (Oct.
2017) pp. 1, 8; Harvard School of Public Health, Discrimination
in America: Experiences and Views of White Americans (Nov.
2017) p. 11.) According to another recent poll, whereas 42
percent of white adults in America have “a great deal” of
confidence that police officers treat Black and white people
equally, 48 percent of Black adults have “very little” or “no
confidence” at all. (Santhanam, Two-thirds of Black Americans
don’t trust the police to treat them equally. Most white
Americans do, PBS NewsHour (June 5, 2020).)
Against this backdrop, this court has repeatedly upheld
peremptory strikes of jurors based on their experiences or
perceptions of law enforcement or the courts, even though this
disproportionately burdens Black jurors. (See, e.g., People v.
Winbush (2017) 2 Cal.5th 402, 436–437 [“negative attitude
toward law enforcement” or “negative experience with law
enforcement” is “a valid basis for exclusion”]; id. at p. 439
[“distrust of the criminal justice system is a race-neutral basis
for excusal”]; ibid. [“Skepticism about the fairness of the
criminal justice system to indigents and racial minorities has
also been recognized as a valid race-neutral ground for excusing
a juror.”]; People v. Melendez (2016) 2 Cal.5th 1, 18 [Black juror’s
“distrust of police” and “belie[f that] the criminal justice system
had treated [his] brother-in-law unfairly” were race-neutral
reasons for excusal]; People v. Booker (2011) 51 Cal.4th 141, 167,
fn. 13 [“A negative experience with the criminal justice system
is a valid neutral reason for a peremptory challenge.”]; People v.
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PEOPLE v. TRIPLETT
Liu, J., dissenting
Lenix (2008) 44 Cal.4th 602, 628 [“ ‘We have repeatedly upheld
peremptory challenges made on the basis of a prospective juror’s
negative experience with law enforcement.’ ”].) We recently
affirmed the death sentence of a Black defendant convicted by a
jury with no Black jurors, upholding the prosecutor’s use of
“peremptory strikes based on [Black] jurors’ attitudes toward
the O.J. Simpson case,” one of the most “racially polarizing”
cases in modern times. (People v. Miles (2020) 9 Cal.5th 513,
613 (dis. opn. of Liu, J.).)
Nearly three decades ago, in an incident caught on
videotape and seen around the world, Rodney King, an unarmed
Black man stopped by Los Angeles police after a high-speed
chase, was brutally kicked and beaten by four officers while
more than a dozen other officers stood by. King suffered “skull
fractures, broken bones and teeth, and permanent brain
damage” as a result of the beating. (Sastry & Bates, When LA
Erupted in Anger: A Look Back at the Rodney King Riots (Apr.
26, 2017) NPR.) The four officers were criminally charged with
assault and use of excessive force, but a jury that included no
African Americans did not return a single guilty verdict.
Not long afterward, during jury selection in the capital
trial of a Black defendant, a Black prospective juror “expressed
the view that the criminal justice system sometimes treats
citizens unfairly because of race, offering an example: ‘The first
Rodney King trial where the officers were acquitted seemed to
be a blatant miscarriage of justice, because the victim . . . was
black.’ She wrote that ‘Blacks, poor people, minorit[ies and]
women seem to get harsher treatment than whites, rich people.
I’ve known many studies & research to show this as fact.’ On
the other hand, she appeared to favor use of the death penalty
and consistently acknowledged a juror’s duty to consider the
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Liu, J., dissenting
evidence fairly and to follow the law as directed by the court.”
(People v. Cornwell (2005) 37 Cal.4th 50, 67–68.) The trial court
asked the juror, “ ‘What do you mean by the injustice that you
perceive [in the Rodney King case]?’ ” (Id. at p. 68.) The juror
responded: “ ‘Well, it seemed that even with the major evidence,
that having it on videotape there was still some lack of believing
that police could treat a black man like that. And then when
the trial took place, the first trial they were acquitted, even
though almost the whole world saw it happening. And coming
from Los Angeles and having had relatives treated like that
myself it just — it makes it very very hard to keep trusting.’ ”
(Ibid.) This court upheld the prosecutor’s strike of this juror,
noting that “despite her obvious intelligence and good faith, . . .
her express distrust of the criminal justice system and its
treatment of African-American defendants” was a race-neutral
reason “for any prosecutor to challenge her.” (Id. at p. 70.)
As it stands, our case law rewards parties who excuse
minority jurors based on ostensibly race-neutral justifications
that mirror the racial fault lines in society. This approach is not
dictated by high court precedent, and it is untenable if our
justice system is to garner the trust of all groups in our
communities and to provide equal justice under law.
“[D]isparate impact should be given appropriate weight in
determining whether the prosecutor acted with a forbidden
intent . . . .” (Hernandez v. New York (1991) 500 U.S. 352, 362
(plur. opn. of Kennedy, J.); see id. at p. 379 (dis. opn. of Stevens,
J.) [“An explanation that is ‘race neutral’ on its face is
nonetheless unacceptable if it is merely a proxy for a
discriminatory practice.”]; id. at p. 375 (dis. opn. of Blackmun,
J.).) “If any explanation, no matter how insubstantial and no
matter how great its disparate impact, could rebut a[n]
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PEOPLE v. TRIPLETT
Liu, J., dissenting
inference of discrimination provided only that the explanation
itself was not facially discriminatory, ‘the Equal Protection
Clause “would be but a vain and illusory requirement.” ’ ” (Id.
at p. 377 (dis. opn. of Stevens, J.).)
In this case, Prospective Juror No. 16 considered it self-
evident that she knew people who had been treated badly by the
police or the courts “[j]ust growing up in L.A.” and that she has
experienced harassment by police as “[a] Black woman in L.A.
with young Black brothers.” The mistreatment of Black
Americans by law enforcement is itself a serious and
longstanding problem. Current law then compounds and
institutionalizes this problem by permitting the exclusion of
Black jurors based on the very mistreatment that they, their
friends or family, or members of their community have
experienced. And in turn, the conviction of Black defendants by
juries from which all Black prospective jurors have been struck
further reinforces perceptions of unfairness. In light of this
vicious cycle, is it any wonder that so many Black Americans —
indeed, so many Americans of all races — have doubts about the
fairness of the justice system when it comes to the treatment of
our Black citizens?
“Other than voting, serving on a jury is the most
substantial opportunity that most citizens have to participate in
the democratic process.” (Flowers v. Mississippi (2019) 588 U.S.
__, __ [139 S.Ct. 2228, 2238].) To many people, excluding
qualified Black jurors based on their negative experiences with
law enforcement or the justice system must seem like adding
insult to injury. It has been more than 30 years since this court
has found racial discrimination in the peremptory strike of a
Black juror. (See People v. Snow (1987) 44 Cal.3d 216.) Over
the decades, California courts have repeatedly upheld the
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Liu, J., dissenting
exclusion of Black jurors for reasons like those at issue here. It
is time to reassess whether the law should permit the real-life
experiences of our Black citizens to be devalued in this way. At
stake is nothing less than “public confidence in the fairness of
our system of justice.” (Batson, supra, 476 U.S. at p. 87.) I
would grant the petition for review.
LIU, J.
I Concur:
CUÉLLAR, J.
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