People v. Flores CA4/2

Filed 11/19/20 P. v. Flores CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E071975

v. (Super.Ct.No. FWV18003113)

JOSE FLORES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. David A. Williams,

Judge. Affirmed.

Sandra Gillies, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Mary K.

Strickland, Deputy Attorneys General, for Plaintiff and Respondent.

1
 I.

BACKGROUND

Defendant and appellant, Jose Flores, thought his roommate was dating his ex-

wife. Defendant asked the victim to speak with him outside. Once outside, defendant

pulled out a knife and stabbed the victim in the stomach, inflicting an almost three-inch-

deep wound.

A jury convicted defendant of one count of assault with a deadly weapon (Pen.
1
Code, § 245, subd. (a)(1)), and one count of battery causing serious bodily injury

(§ 243(d)). The jury also found true that defendant personally used a deadly weapon (§

12022, subd. (b)(1)), and inflicted great bodily injury on the victim (§ 12022.7, subd. (a))

in the commission of the offenses. The trial court sentenced defendant to six years in

prison.

On appeal, defendant argues the trial court prejudicially erred by (1) denying his
2 3
Batson/Wheeler motion and (2) not holding a second Marsden hearing. We disagree

and affirm the judgment.

1
Unless otherwise noted, all further statutory references are to the Penal Code.
2
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler).
3
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

2
 II.

DISCUSSION

A. The Trial Court Properly Denied Defendant’s Batson/Wheeler Motion

After the prosecutor used a peremptory strike during voir dire to exclude an

African American prospective juror, defendant moved under the authority of Batson,

supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258, to challenge the strike. The trial

court denied the motion. We conclude the trial court did not err in doing so.

1. Additional Background

During voir dire, the prosecutor asked prospective jurors if they or any close

friends or relatives had been charged with a crime. Juror 12, an African American

woman, responded that she had had two relevant experiences. She explained the first

experience as follows: “I was at a party, and we were leaving. We were in Long Beach,

and my friends and I were in the car. We were getting ready to leave. Next thing we

know, Long Beach police pulls up. Guns were drawn. What was going on? We had no

clue. Apparently there was gunshots right before we got there. [¶] So the police didn’t

specify anything, they just said, ‘Throw your keys out your car.’ We’re following

instructions as we were supposed to do. We’re in our early 20s. We’re sticking our

hands out the window. They come out to the car. The red lights, everything. We’re like,

‘Oh my God. I’m going to die.’ We didn’t do anything. [¶] . . . [¶] They laid all the

guys on the floor, on the ground, handcuffed them. We were just sitting there like, okay,

do I call my mother or my brother, because my brother is in law enforcement. [¶] And

3
they let us go like, ‘Okay. You guys need to go home.’ But that was an interesting

experience. They didn’t single anybody out. They pretty much treated everybody the

same. But for them not to know who we are to have their guns drawn, I had never

experienced that in my life. [¶] . . . [¶] My heart almost stopped.”

Juror 12 explained her second experience as follows: “I was irresponsible with

my car registration. And I did not show up for a court date here in Rancho

[Cucamonga]. . . . And I get in my car and drive off. [¶] Fontana PD pulls me over.

They let me keep my car, but they arrest me because I had a warrant out. I started crying.

I was like, oh, my God. So then they took me to West Valley [Detention Center], and

I’m sitting in there like tearing up. The correctional officers are laughing at me. They’re

like, ‘It’s okay. You are going to go home. You are fine. They do this to teach you a

warning to show up.’ [¶] I was like, lesson learned. Can I please go home? After four

hours, they sent me home and my friends are cracking jokes. . . . [¶] [¶] And I was like,

it’s a funny story for later. The only time I felt somebody kind of judge me was this one

guy was patting me down, and he goes, ‘Have you ever been arrested before?’ [¶] I said,

‘No.’ [¶] He was like, ‘Ever?’ [¶] I said, ‘No. Contrary to what you might think, not

all minorities want to go to jail. Can I go home now?”

The prosecutor then asked Juror 12 several follow-up questions about the first

incident, but did not ask about the second incident. The prosecutor “moved on” due to

time constraints and questioned other prosecutive jurors.

4
 The prosecutor used her first peremptory challenge to excuse Juror 103, an

African American woman, for cause because she said she had severe anxiety and would

be unable to listen to testimony.

The prosecutor used her second peremptory challenge, which was without cause,

to excuse Juror 12. Defense counsel immediately objected on Batson/Wheeler grounds.

The trial court responded, “at the present time, I’m going to deny.” The prosecutor

replied that she did not hear what the trial court said. The trial court replied, “Present

time I’m going to deny that. We’ll reserve on that though.”

The parties and the trial judge went into chambers to discuss defendant’s

Batson/Wheeler motion outside the presence of the jury. Defense counsel noted there

were “eight African Americans on the . . . entire venire,” one of which, Juror 103, was

excused for cause. Counsel also noted that there were two African Americans on the

panel.

Defense counsel argued there was no reason why Juror 12 should be excused.

Defense counsel did not “see any difference between” her and any of the other jurors,

thought her answers were “just as satisfactory” as those of other jurors, and considered

her “more of a pro-prosecution juror.”

The trial court asked if the prosecutor wished to be heard. The prosecutor

explained she “had some concerns with some of the things” Juror 12 said. The

prosecutor thought Juror 12 had “some strong opinions that police officers, at least in the

two experiences where she was arrested, looked differently upon her based on” her race.

5
The prosecutor recalled that Juror 12 said something to the effect of, “‘Believe it or not,
4
not all minorities are criminals.’” The prosecutor continued: “I don’t know how that

will translate. How she is going to be perceiving the defendant, whether she perceives

him as a minority, and that’s going to cause her to focus on that rather than the evidence,

or if she is going to be fair to the victim and if she is going to perceive him as the

minority and go all with him and not listen to the rest of the evidence. So I elected to use

my preempt [sic] for that reason. Nothing to do with race.”

Defense counsel disagreed with the prosecutor’s characterization of Juror 12’s

experience when she was arrested for an outstanding warrant. Defense counsel recalled

that Juror 12 made her “‘not all minorities want to go to jail’” comment in response to an

officer’s “derogatory” questions about whether she had ever been arrested. Defense

counsel also noted that the prosecutor did not “make any attempt to follow-up” or to ask

Juror 12 any questions about her comments, such as “[a]re you going to essentially stand

up for all minorities regardless of the evidence?”

The trial court found that Juror 12 made “statements that would lead a prosecutor

to believe that she may be somebody that she may not want on the jury. Not based on her

race, but based on some of her answers.” The court reasoned that some of Juror 12’s

answers were “the type of answer that people get excluded on because they’ve had

unfavorable instances with police who are going to be testifying in this case.” The trial

4
The prosecutor incorrectly recalled Juror 12’s comment. As noted, she said,
“Believe it or not, not all minorities want to go to jail.”

6
court therefore “could see why the prosecutor would look at those matters and use a

preempt [sic]. Not by her race, but by her answers.” Accordingly, the trial court denied

defendant’s Batson/Wheeler motion. Defense counsel then asked whether the court was

“finding that there was no intentional discrimination by the prosecution.” The court

replied, “Correct.”

Shortly afterward, while in court but outside the presence of the jury, the

prosecutor asked to be heard “to make sure” her reasons for using a peremptory challenge

on Juror 12 were “clear.” The prosecutor thought Juror 12’s “not all minorities want to

go to jail” comment “displayed a negative attitude towards the law enforcement officers.”

The prosecutor stated that she used the challenge because of the “entire context” of Juror

12’s experience of being arrested for an outstanding warrant. The prosecutor explained:

“[T]he reasoning for me kicking her [was] her negative attitude about law enforcement

when she came in because she’s picked up on a warrant for not taking care of her court

business.” The trial court asked if defense counsel wanted to be heard, defense counsel

said “No,” and the trial court stated that it had already made its ruling on the record.

2. Analysis

Batson/Wheeler motions require a three-step analysis. “‘First, the defendant must

make out a prima facie case “by showing that the totality of the relevant facts gives rise

to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has

made out a prima facie case, the “burden shifts to the State to explain adequately the

racial exclusion” by offering permissible race-neutral justifications for the strikes.

7
[Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then

decide . . . whether the opponent of the strike has proved purposeful racial

discrimination.” [Citation.]’” (People v. Taylor (2010) 48 Cal.4th 574, 611.)

The parties dispute whether the trial court denied defendant’s Batson/Wheeler

motion at the first or third step. After the prosecutor explained her reasons for striking

Juror 12, the trial court expressly found that they were non-discriminatory. “Because the

prosecutor explained her reason for the peremptory challenge of [Juror 12], and the trial

court ruled on the ultimate question of intentional discrimination, the issue of whether

defendant made a prima facie showing is moot.” (People v. Elliott (2012) 53 Cal.4th

535, 560.) “We therefore proceed directly to the third step of the Batson/Wheeler

analysis.” (Id. at p. 561.)

“‘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.’” (People v. Lenix (2008) 51 Cal.4th 830, 849.) “This rule

of deference is warranted because Batson’s third-step inquiry often involves evaluation of

‘whether the prosecutor’s demeanor belies a discriminatory intent.’ [Citation.]” (People

v. Mai (2013) 57 Cal.4th 986, 1059 (conc. opn. of Liu, J.).)

“Appellate review of a step three finding of nondiscriminatory intent is also

informed by the principle that ‘the defendant’s burden at the third stage of a

8
Batson/Wheeler hearing is to show the prosecutor excused prospective jurors for

discriminatory reasons [citation], not merely that some of the nondiscriminatory reasons

offered by the prosecutor are not supported by the record.’” (People v. Mai, supra, 57

Cal.4th at p. 1049.) The prosecutor’s “‘“justification need not support a challenge for

cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice.” [Citation.] A

prospective juror may be excused based upon facial expressions, gestures, hunches, and

even for arbitrary or idiosyncratic reasons.’” (People v. Winbush (2017) 2 Cal.5th 402,

434.)

“At the third step of the Batson/Wheeler analysis, the trial court evaluates the

credibility of the prosecutor’s neutral explanation. Credibility may be gauged by

examining factors including but not limited to ‘“‘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.’”’” (People v. Gutierrez (2017) 2

Cal.5th 1150, 1168.) We thus focus our inquiry “‘on the subjective genuineness of the

race-neutral reasons given for the peremptory challenge, not on the objective

reasonableness of those reasons.’” (People v. Chism (2014) 58 Cal.4th 1266, 1317.)

“All that matters is that the prosecutor’s reason for exercising the peremptory challenge is

sincere and legitimate, legitimate in the sense of being nondiscriminatory. ‘[A]

“legitimate reason” is not a reason that makes sense, but a reason that does not deny

equal protection. [Citations.]’ [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903,

924.)

9
 Because analysis at the third step “turns largely on an ‘evaluation of credibility,’”

the trial court’s ruling “‘must be sustained unless it is clearly erroneous.’” (Felkner v.

Jackson (2011) 562 U.S. 594, 598.) As a result, we must affirm the trial court’s decision

if there is substantial evidence that the prosecutor genuinely “articulated a permissible,

race-neutral reason for the excusal.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970,

1010.)

We conclude that there was such substantial evidence. The prosecutor argued she

exercised a peremptory strike on Juror 12 because of her arrest experience and her

“negative attitude” toward one of the officers at the detention facility. As explained

above, an officer at the facility asked her if she had been arrested, she said “no,” and the

officer followed up with, “Ever?” This offended Juror 12 and prompted her to say,

“‘[c]ontrary to what you might think, not all minorities want to go to jail.’”

Juror 12’s statements thus showed that this experience with law enforcement was

negative, which constituted substantial evidence of “a permissible, race-neutral reason”

for her excusal. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1010.) As the trial

court correctly observed, a negative experience with law enforcement is a common,

legitimate reason to excuse a prospective juror. (See People v. Cowan (2010) 50 Cal.4th

401, 450 [“A prospective juror’s negative experience with the criminal justice system,

including arrest, is a legitimate, race-neutral reason for excusing the juror.”].) Juror 12’s

“not all minorities” comment suggested she thought the officer was biased against

minorities, which in turn reflected a potential bias against law enforcement. The

10
prosecutor therefore could excuse Juror 12 due to her negative experiences with and

perceived bias against law enforcement. (See ibid.; see also Green v. Travis (2d Cir.

2005) 414 F.3d 288, 300 [“[A] juror’s perceived bias against law enforcement can

constitute a race-neutral explanation for a peremptory challenge.”]; cf. People v. Bryant

(2019) 40 Cal.App.5th 525, 547 [“Under controlling precedent, the peremptory

challenges against O.H. and T.M. were permissible given these jurors’ negative

experiences with the criminal justice system.” (conc. opn. of Humes, P.J.)].]

Although not conclusive, the fact that two African Americans remained on the

jury suggests the prosecutor did not excuse Juror 12 for discriminatory reasons. “Indeed,

ultimate inclusion on the jury of members of the group allegedly targeted by

discrimination indicates ‘“good faith”’ in the use of peremptory challenges, and may

show under all the circumstances that no Wheeler/Batson violation occurred.” (People v.

Garcia (2011) 52 Cal.4th 706, 747-748.)

Finally, the trial court’s discussion of defendant’s Batson/Wheeler motion with

counsel reflects the court’s “sincere and reasoned effort to evaluate the nondiscriminatory

justifications offered” by the prosecutor. (People v. Burgener (2003) 29 Cal.4th 833,

864.) The trial court listened to both sides, discussed Juror 12’s comments, evaluated

counsel’s arguments, and articulated its reasoning. The trial court correctly noted that an

unfavorable instance with the police like the one Juror 12 experienced was a common

reason jurors are excluded. (See People v. Lenix, supra, 44 Cal.4th at p. 628 [“‘We have

11
repeatedly upheld peremptory challenges made on the basis of a prospective juror’s

negative experience with law enforcement.’”].)

“[B]ecause the trial court is ‘well positioned’ to ascertain the credibility of the

prosecutor’s explanations and a reviewing court only has transcripts at its disposal, on

appeal ‘“the trial court’s decision on the ultimate question of discriminatory intent

represents a finding of fact of the sort accorded great deference on appeal” and will not

be overturned unless clearly erroneous.’ [Citations.]” (People v. Riccardi (2012) 54

Cal.4th 758, 787, abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th

1192, 1216.) We therefore must defer to the trial court’s finding that the prosecutor did

not strike Juror 12 for discriminatory reasons unless “the prosecutor’s stated reasons are

either unsupported by the record, inherently implausible, or both.” (People v. Hardy

(2018) 5 Cal.5th 56, 76; accord, People v. Bryant, supra, 40 Cal.App.5th at p. 543.)

Applying this deferential standard of review, we conclude that the prosecutor’s

race-neutral reasons to excuse Juror 12 were plausible, there is substantial evidence

supporting those reasons, and there is insufficient evidence in the record to support a

determination that the prosecutor removed Juror 12 because she is African American.

The record also shows that the trial court made a sincere and reasoned evaluation of the

prosecutor’s reasons for striking Juror 12, and found that those reasons were not

discriminatory. Because that finding is not “clearly erroneous,” we must uphold it.

(People v. Riccardi, supra, 54 Cal.4th at p. 787.)

12
 Defendant argues the trial court erroneously denied his Batson/Wheeler motion

because the prosecutor sought to dismiss Juror 12 “on the assumption [Juror 12] would be

‘partial to the defendant’ because of their shared status as minorities.” In support,

defendant cites several distinguishable cases.

In People v. Johnson (1978) 22 Cal.3d 296, 299, the prosecutor struck all African

American jurors because the case involved witnesses who had made racist statements, so

the prosecutor thought it would be “very difficult for any black person to be totally

objective” about the case. Similarly, in United States v. Brown (10th Cir. 1987) 817 F.2d

674, a prosecutor improperly “challenged two black jurors because the prosecutor simply

presumed from his previous experience all black people would be influenced to acquit the

defendant because of the mere presence of” defense counsel who was African American.

Likewise, in United States v. Bishop (9th Cir. 1992), 959 F.2d 820, overruled on other

grounds by United States v. Nevils (9th Cir. 2010) 598 F.3d 1158 (en banc), the

prosecutor improperly struck a juror because the prosecutor assumed the juror believed

the police “‘pick on black people’” because the juror was African American and “lived in

a predominately low-income, black neighborhood.”

In short, in Johnson, Brown, and Bishop, the prosecutors improperly used

peremptory challenges to jurors based on assumptions stemming from their race, not

because of their answers in voir dire. Here, contrary to defendant’s assertion, the

prosecutor did not assume Juror 12 would be biased in defendant’s or the victim’s favor

simply because of “their shared status as minorities” or solely because of Juror 12’s race.

13
Rather, the prosecutor believed Juror 12’s answers in voir dire, particularly her “not all

minorities” comment, suggested a potential bias against law enforcement that could affect

Juror 12’s interpretation of the evidence.

Defendant also relies on Turnbull v. Florida (Fla. Ct. App. 2006) 959 So.2d 275,

which is inapplicable here. In that case, the prosecutor asked potential jurors irrelevant

questions about whether they thought the police racially profiled people. (Id. at p. 276.)

Five prospective jurors—all African American—“answered affirmatively,” and the

prosecutor struck them on that basis. (Ibid.) The Turnbull court held that it could not

“condone this trial strategy” of attorneys asking “irrelevant inflammatory questions to

incite jurors to respond” and then using the jurors’ “responses as neutral reasons to

justify” striking them. (Id. at p. 278.)

Here, by contrast, the prosecutor asked the prospective jurors whether “you or

somebody who you’re close to or a friend or relative [had] ever been charged with a

crime or convicted.” Defendant does not—and cannot—argue this question was

improper. (See People v. Cowan, supra, 50 Cal.4th at p. 450 [“A prospective juror’s

negative experience with the criminal justice system, including arrest, is a legitimate,

race-neutral reason for excusing the juror.”].)

Finally, defendant relies on United States v. Brown (9th Cir. 2019) 925 F.3d 1150

for the proposition that we “cannot discount the issue of race in determining whether the

prosecutor’s challenge . . . was race-neutral.” Brown is not a Batson case; it concerned

whether the police had reasonable suspicion to arrest the defendant, an African American

14
male, who fled from the police. (Id. at p. 1151.) As relevant here, the Brown court

considered whether the defendant’s flight provided the officers with reasonable

suspicious to arrest him. (Id. at p. 1155-1156.) The Ninth Circuit explained that “[i]n

evaluating flight as a basis for reasonable suspicion,” the court could not “totally discount

the issue of race” given that “uneven policing may reasonably affect the reaction of

certain individuals—including those who are innocent—to law enforcement.” (Id. at p.

1156.) Defendant fails to explain how Brown applies here.

Defendant also offers five reasons “why the prosecutor’s reliance on whatever

feelings [Juror 12] may have had was insufficient in this case.” We find none of them

persuasive.

First, defendant contends Juror 12’s thoughts about law enforcement were

irrelevant because defendant “did not ascribe any improper motive to law enforcement,

nor did officers play any significant role in this case.” But, as the People note, a detective

who investigated defendant’s offenses was one of only three prosecution witnesses. The

detective testified that he spoke to the victim after the victim came out of surgery for the

stab wound defendant inflicted on him. The detective explained that the victim told him

that defendant had stabbed him because they had an argument and that the victim

“appeared to be still pretty scared.” The detective’s testimony was therefore highly

relevant to establishing defendant’s guilt and the victim’s credibility, so the detective’s

credibility and testimony was “related to the particular case to be tried.” (Batson, supra,

476 U.S. at p. 98.) The prosecutor therefore could permissibly conclude that Juror 12’s

15
negative experiences with and perceived bias against law enforcement could have

affected her decision-making.

Second, defendant asserts the prosecutor’s failure to ask Juror 12 follow-up

questions about her arrest shows that the prosecutor’s stated reasons for striking Juror 12

were “a pretext for discrimination.” Although whether a prosecutor engaged in a

“perfunctory” or “desultory” voir dire or asked the challenged juror no questions is a

relevant consideration (People v. Taylor, supra, 48 Cal.4th at p. 615), the prosecutor here

extensively questioned the prospective jurors. The prosecutor also asked Juror 12

multiple questions about her experience with the officers who stopped her and her friends

at a party. The fact that the prosecutor did not ask Juror 12 about her arrest does not

necessarily suggest that the prosecutor dismissed her for discriminatory reasons. (See

People v. Huggins (2006) 38 Cal.4th 175, 234-26 [finding no discrimination even though

prosecutor did not ask juror questions about the ground on which prosecutor struck
5
juror].) Moreover, Juror 12 completed a 16-question questionnaire, which further shows

the prosecutor’s voir dire was not perfunctory or desultory. (See People v. Bell (2007) 40

Cal.4th 582, 589-599 fn. 5; People v. Reed (2018) 4 Cal.5th 989, 1001 [“[A]n attorney’s

failure to engage jurors in voir dire is less significant than when the attorneys know

nothing about the jurors prior to striking them.”].)

5
The first “question” of the 17 questions on the questionnaire asks the juror to
state his or her juror number.

16
 Third, defendant claims the prosecutor should not have struck Juror 12 because

“there was no racial aspect to the case” and no allegations of racial profiling. That may

be true, but a prospective juror’s negative experiences with and potential bias against law

enforcement is a permissible race-neutral ground to excuse the juror. (See People v.

Panah (2005) 35 Cal.4th 395, 442 [“A negative experience with police or the arrest of a

prospective juror or a close relative is a gender-neutral reason for exclusion.”]; People v.

Lenix, supra, 44 Cal.4th at p. 628 [“‘We have repeatedly upheld peremptory challenges

made on the basis of a prospective juror’s negative experience with law enforcement.’”].)

Defendant cites no authority that suggests this principle applies only if the case involves a

“racial aspect” or allegations of stereotyping or racial profiling.

Fourth, defendant argues the prosecutor’s concern that Juror 12 would “lose focus

on the evidence” was unfounded because Juror 12 assured defense counsel that she could

competently serve as a juror. But “[a] party’s justification for exercising a peremptory

challenge ‘“need not support a challenge for cause, and even a ‘trivial’ reason, if genuine

and neutral, will suffice.”’” (People v. Mills (2010) 48 Cal.4th158, 176.) So even if the

prosecutor mistakenly thought Juror 12 would not fairly evaluate evidence, the prosecutor

still could permissibly excuse her. (People v. Lewis and Oliver, supra, 39 Cal.4th at p.

1015 [prosecutor permissibly excused juror who said “he could be fair to both sides in the

trial”].)

Fifth and relatedly, defendant contends the prosecutor erroneously concluded Juror

12 “formed a negative opinion” about law enforcement because of her arrest because

17
Juror 12 eventually considered the experience to be “simply fodder for later jokes, with

the only negative aspect being her encounter with the skeptical officer.” We question

defendant’s suggestion that Juror 12’s arrest and hours-long detention was not a negative

experience. But even if the prosecutor was mistaken about how Juror 12 looks back on

the incident, the prosecutor was still entitled to strike her based on her arrest, irrespective

of her feelings about it. (See People v. Cowan, supra, 50 Cal.4th at p. 450; People v.

Mills, supra, 48 Cal.4th at p. 176.)

Batson “does not require that the [prosecutor’s] justification be unrelated to race.

Batson requires only that the prosecutor’s reason for striking a juror not be the juror’s

race.” (Hernandez v. New York (1991) 500 U.S. 352, 375 (conc. opn. of O’Connor, J.).)

Here, the trial court reasonably concluded that the prosecutor did not strike Juror 12

because of her race, but for nondiscriminatory reasons rooted in Juror 12’s answers

during voir dire. The trial court reasonably found that those answers suggested Juror 12

held biases against law enforcement, which in turn provided the prosecutor with

permissibly race-neutral reasons to excuse Juror 12. Because that conclusion was

supported by substantial evidence and not clearly erroneous, the trial court’s ruling

denying defendant’s Batson/Wheeler motion “must be sustained.” (Snyder v. Louisiana

(2008) 552 U.S. 472, 477.)

B. The Trial Court Did Not Err by Not Holding a Second Marsden Hearing

A trial court must hold a Marsden hearing “‘“‘[w]hen a defendant seeks to

discharge his appointed counsel and substitute another attorney, and asserts inadequate

18
representation’”’” to allow the defendant “‘“‘to explain the basis of his contention and

relate specific instances of the attorney’s inadequate performance.’”’” (People v. Barnett

(1998) 17 Cal.4th 1044, 1085.) Defendant contends the trial court violated this obligation

by not holding a second Marsden hearing. We disagree.

Before trial, the court held a Marsden hearing at defendant’s request. The trial

court rejected defendant’s request for a new attorney, finding that defense counsel could

adequately represent defendant at trial.

At the beginning of the sentencing hearing, defense counsel told the trial court that

“based on what [defendant] said in the probation report,” defense counsel was “almost

certain” that defendant would request a second Marsden hearing. The trial court

explained that defendant was “not getting one.” Defendant responded that he would “like

to appeal.” The trial court then told defendant, “It’s totally useless to do a Marsden

hearing. If I grant it, then [defense counsel] is not your lawyer, I’ll read the sentencing

and the sentencing will go forward. So it really doesn’t make any difference.” The trial

court then recessed.

After the recess, the trial court cleared the courtroom to hold a second Marsden

hearing. The trial court asked defendant if he wanted to be heard. Defendant replied, “I

would like [defense counsel] to keep to continue representing me.” Defense counsel said

he was “frankly surprised,” explained that defendant “doesn’t want an attorney,”

concluded that “we don’t need to proceed on a Marsden,” and apologized for the

19
misunderstanding. The trial court therefore did not hold a Marsden hearing and

proceeded with sentencing defendant.

As the People note, it is unclear whether defendant even wanted a second Marsden

hearing. It appears defense counsel assumed defendant wanted one because of

defendant’s comments in his probation report. But the only relevant statement in the

probation report was defendant’s pretrial statement that “[h]e wanted to change his Public

Defender.” When the trial court began what was intended to be a second Marsden

hearing, defense counsel explained that a Marsden hearing was unnecessary. The record

therefore does not support defendant’s argument that he requested a second Marsden

hearing.

In any event, even if defendant did request a second Marsden hearing, he

unambiguously abandoned the request when he said, “I would like [defense counsel] to

keep to continue representing me.” We conclude that defendant “affirmatively

withdrew” his Marsden request by making this statement. (People v. Padilla (1995) 11

Cal.4th 891, 927, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800,

823, fn. 1.) Defendant then denied the trial court’s offer of a second Marsden hearing.

“Defendant’s failure to take advantage of this offer can only be interpreted as an

abandonment of his” purported complaints about defense counsel. (People v. Vera

(2004) 122 Cal.App.4th 970, 981-982.) The trial court therefore did not err in failing to

hold a second Marsden hearing.

20
 III.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

I concur:

MILLER
Acting P. J.

21
[P. v. Flores, E071975]

MENETREZ, J., Concurring.

I concur in the majority opinion. I write separately only to acknowledge that the

analysis under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22

Cal.3d 258 arguably implicates some of the concerns described in Justice Liu’s dissent

from denial of review in People v. Triplett (2020) 48 Cal.App.5th 655, 665a (stmt. of

Liu, J.). But I believe the majority opinion’s analysis is sound under current law.

MENETREZ
J.

1