Filed 4/4/22 (see attached dissent)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B307985
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. TA148640)
SALVADOR SOLORIO SALINAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kelvin Filer, Judge. Reversed and remanded.
Tracy J. Dressner, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Dana Ali, Supervising Deputy
Attorney General, Stacy S. Schwartz and Joseph P. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
At defendant and appellant Salvador Salinas’s
(defendant’s) criminal trial, the prosecution used five of the eight
peremptory challenges it exercised to remove Black women from
the jury panel—including a prospective juror who was a sales
manager, a crime victim herself, the grandchild of a retired police
officer, a friend or acquaintance of “a lot” of law enforcement
officers, and a prior member of a criminal jury in another case
that reached a verdict. The United States Supreme Court
recognized in Batson v. Kentucky (1986) 476 U.S. 79 (Batson) that
there can be no dispute peremptory challenges “permit[ ] ‘those to
discriminate who are of a mind to discriminate’” (id. at 96), and
the high court more recently re-emphasized that striking even a
single prospective juror for a discriminatory purpose is
constitutionally intolerable (Foster v. Chatman (2016) 578 U.S.
488, 499 (Foster)). For reasons we shall detail, the record reveals
the prosecution’s decision to bar the above-described Black
woman from jury service is inconsistent with the guarantees of
our federal and state constitutions.
I
The Los Angeles County District Attorney charged
defendant with murder for killing a man having an affair with
defendant’s wife. At trial, the prosecution presented evidence
that defendant beat the victim with a metal pipe shortly after
seeing the victim rendezvous with defendant’s wife in a motel
room. The jury found defendant guilty of second degree murder
(not first degree, as the prosecution argued), and the trial court
sentenced defendant to 15 years to life in prison. Voir dire of the
prospective trial jurors, which is our focus in this appeal and the
procedural summary that immediately follows, proceeded over
2
the course of the first two days of defendant’s trial in early
February 2020.
The trial court conducted voir dire of the jury panel in
groups of 21. The court itself initially solicited general
background information (e.g., marital status, occupation, prior
jury service) from the prospective jurors and questioned them
about whether anyone had negative experiences with law
enforcement officers or had friends or family who worked in law
enforcement. The court then permitted the attorneys to voir dire
the group. After attorney voir dire and challenges for cause, the
trial court invited the parties to exercise peremptory challenges
until 10 of the original group of 21 had been dismissed. At that
point, additional prospective jurors were called from the panel to
again comprise a group of 21, and the newly-called prospective
jurors were questioned in the same manner.
There were at least four Black women in the first group of
21 prospective jurors: prospective juror number 3505 (Juror
3505), prospective juror number 5542 (Juror 5542), prospective
juror number 8832 (Juror 8832), and prospective juror number
8061 (Juror 8061). 1
Juror 3505 was employed as a recruiting trainer in the
financial services industry and married with two children. She
previously served on a criminal jury, she had never been the
victim of a crime, and her hobbies included golf and ministry
work. When the trial court generally informed the prospective
jurors that some evidence may be admitted at trial for a limited
1
We will return to the point later, but we have only limited
information concerning the race and gender composition of the
jury panel as a whole because the parties and the trial court did
not make a comprehensive record.
3
purpose, Juror 3505 asked whether that meant they were not
supposed to use “reasonable deduction.” The court clarified that
“reasonable deduction” and use of common sense was permitted,
and Juror 3505 said she understood and decided to ask the
question “[b]ecause I can think for myself.” When the court
asked Juror 3505 if she could “commit[ ]” to following the court’s
instructions, she responded, “I’ll attempt to.” Later, when the
court questioned the jury about any negative experiences with
law enforcement, Juror 3505 said she was given a traffic ticket
over 10 years earlier and fought the ticket in court. Juror 3505
said she thought the officer who wrote the ticket lied under oath
and the judge who decided the matter was unfair for believing
the testimony of the officer instead of her. When asked whether
this experience left her with any “ill feelings towards law
enforcement in general,” Juror 3505 demurred, explaining she
could be a fair and impartial juror in defendant’s case and
clarifying she “just . . . d[id]n’t believe everything everyone says”
as a result of the traffic ticket experience. 2
Juror 5542 was a single college student who had never been
the victim of a crime and never served on a jury. Her hobbies
were shopping, watching television, and “going out.” In response
to questions from the trial court, Juror 5542 said she was
2
The trial court told Juror 3505 that she would be asked “to
consider only the evidence that comes from this [witness] stand
and follow only [the court’s] instructions on the law, not because
they’re coming from [the court], but [because] that’s what the law
is . . . .” The court asked Juror 3505 whether she thought she
could do that, and when Juror 3505 said she believed she could,
the trial judge agreed, saying, “I think you can. I believe we’re on
the same page.”
4
studying to be a paralegal, wanted to go to law school, and hoped
to be a criminal defense lawyer. The court then asked questions
to verify Juror 5542 would not be biased against the prosecution
because of her interest in doing defense work, and Juror 5542
repeatedly affirmed she could be fair to both sides at trial.
Juror 8832 was an eighth grade teacher and married with
two children. Her hobbies included reading and going to church.
She had never served on a jury and, in response to a question
from the court about whether she had been a victim or witness to
a crime, she said she had because of a “crisis in Nigeria.” Juror
8832 did not elaborate, but she did confirm the experience would
not affect her ability to evaluate the evidence in defendant’s case.
Juror 8061 is the prospective juror we described at the
outset of our opinion. She was a national sales manager for a
credit card company and her hobbies included puzzles, shopping,
and singing. She previously served on a jury that reached a
verdict in a criminal case. She reported she was the victim of an
assault in college (20 years earlier) and testified at her assailant’s
trial; when asked by the court if the experience left her with any
“ill feelings” toward defense attorneys, Juror 8061 said “none
whatsoever.” Regarding friends and family in law enforcement,
Juror 8061 said her grandfather was “retired L.A.P.D.,” her best
friend was a security guard who had applied to work as a deputy
sheriff, and she had “a lot” of acquaintances who were police
officers because she worked with them “as an auto broker.”
After the trial court completed its initial examination of the
first group of prospective jurors, the attorneys for the defense
(defendant was tried with a co-defendant) began their voir dire.
Following initial questioning about the doctrine of self-defense,
the defense questioned individual prospective jurors who
5
disclosed they had friends or family in law enforcement. Juror
8061 (the sales manager) said she did not think she had any bias
and did not regularly speak to the people she knew in law
enforcement about their cases. Juror 8061 was also asked
whether she had any bad feelings about her prior jury service and
she said she had none at all. In addition, the defense asked Juror
8061 whether she thought a defendant must have done
something wrong by virtue of being in court facing a criminal
charge; she answered “[n]o, not necessarily.”
When it came time for the prosecution’s voir dire, the
prosecutor asked the prospective jurors to consider a hypothetical
scenario that we will recount at length because the prosecutor
would later rely on colloquy concerning the hypothetical to excuse
Juror 8061. The prosecutor said: “Now, let’s say you have a mom
and you have a son. Okay. It’s a summer day. And the son is
about five years old. And he tells his mom, hey, mom can we go
swimming? And the swimming is in one of those kiddie pools you
buy at Toys R Us. [¶] . . . [¶] The mom fills it up. Mom says,
okay. Go get your swim trunks on, your goggles, get your
floaties, come back outside. He runs in, gets dressed, comes back
outside. And they’re about to walk outside, but the mom is, like,
oh shoot. I forgot my cellphone. Wait right here. Don’t go in the
pool. Do not go in the pool. [¶] So she goes back. She gets her
cellphone. She comes back. Her son is not standing there, but
he’s standing about ten feet away. Okay. There’s little footprints
on the ground that are wet and he’s soaking wet.”
The prosecution asked, “Just from those facts what is the
most reasonable answer,” and first called on Juror 3505 to
answer. Juror 3505 answered, “He got in the pool.” The
prosecution then turned to another Black female prospective
6
juror, Juror 8832, and asked if she believed the same thing. She
said yes.
After posing the question to two additional prospective
jurors (who gave the same answer), the prosecution then asked
another question of all the prospective jurors based on the same
hypothetical: “Who here thinks it’s possible his neighbor, the
kid’s neighbor, jumped over the fence, grabbed him, put him in
the pool, dragged him, pulled him aside? Raise your hand if you
think that’s a possibility.” At least seven prospective jurors
raised their hand, 3 including Juror 8061 and Juror 3505. The
prosecution then asked, “now, based on the facts I gave you, just
based on the facts, what is the reasonable answer of the
[prospective jurors] who raised their hand?” Juror 3505 said,
“Well, for sure he was probably wet from the pool” but added,
“now the question becomes how did he become wet.” The
prosecution responded: “Just on those facts alone, just on those
facts alone the kid probably jumped in the pool himself, right?
Because there wasn’t any fact that the guy jumped over the fence
and then there wasn’t a factual scenario where an alien grabbed
him, put him in the pool, right? We don’t believe that, right? [¶]
So the reason I’m telling you this hypothetical is because
anything is possible, but my job is to prove to you beyond a
reasonable doubt. Not all doubt. A reasonable doubt. [¶] So
everybody that raised your hand, will it change your answer
when I say what is the reasonable answer here?”
3
The prosecution identified seven prospective jurors on the
record by seat number. One of the prospective jurors that raised
his hand was in seat 19 and was ultimately seated on the trial
jury as juror number 3.
7
Juror 8061 then responded, asking the prosecutor to
confirm he wanted to know what the reasonable answer was.
When the prosecution affirmed that was indeed the question,
Juror 8061 said, “The reasonable answer is that he got in the
pool. I don’t know that for a fact. I’m assuming the sprinklers
could have c[o]me on.” The prosecution responded, “Based on the
factual stuff, I didn’t give you any of that stuff.” When Juror
8061 replied she was thinking anything could have happened, the
prosecution conceded, yes, anything could have happened, but
asked Juror 8061 what the reasonable answer was. Juror 8061
then repeated what she said earlier: the reasonable answer was
that the boy got in the pool.
After further voir dire by the prosecution, including
additional hypothetical scenarios involving marital infidelity and
principles of aiding and abetting, the prosecution asked the
prospective jurors to raise their hands if they promised to “follow
the law and execute based on that” rather than letting sympathy
or emotions influence their verdict. Believing that Juror 8832
and another prospective juror in seat number nine had not raised
their hands, the prosecution inquired further. The prosecution
asked Juror 8832 if she would use emotions and sympathy and
she responded, “I wouldn’t say emotion, sympathy.” The
prosecution then called on the prospective juror in seat nine and
s/he said, “You never know how the people inside the room [are]
going to react, too. So basically on that you have to.” The
prosecution asked “other than that,” can you still follow the law
and return a verdict regardless of how you feel about the case
emotionally; the prospective juror in seat nine said yes. 4
4
The prosecution asked this same question of three other
prospective jurors, including Juror 3505. All responded yes.
8
With attorney voir dire of the first group of prospective
jurors complete, the trial court invited the parties to begin
exercising peremptory challenges, starting with the prosecution. 5
The prosecution first struck Juror 3505. After two additional
peremptory strikes, including the prospective juror in seat nine,
the prosecution’s next two peremptory strikes were used against
Juror 5542 and Juror 8832.
When the prosecution asked the court to excuse Juror 8832,
the defense made a Batson motion at sidebar. 6 The defense
represented, without dispute, that three of the prosecution’s
peremptory challenges had been exercised against Black women,
and the defense argued this pattern of strikes warranted
compelling the prosecution to state its reasons for excluding the
Black women prospective jurors. 7 The trial court agreed,
explaining that just by the “sheer number” of strikes used against
Black women it would “require the People to provide a race
neutral reason for the use of those peremptories.” The
prosecution then articulated a statement of reasons on the
record.
5
Because the only challenges to peremptory strikes in this
case were made by the defense, we focus our attention on the
peremptory challenges used by the prosecution.
6
Such motions are often referred to as Batson/Wheeler
motions to account for our Supreme Court’s holding in People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler) that, like Batson,
prohibits discrimination on the basis of race in jury selection. For
simplicity, we use “Batson motion” as shorthand.
7
The defense also represented, again without dispute, that
the prosecution’s two other peremptory challenges were exercised
against Hispanic males.
9
As to Juror 3505 (the prosecution’s first strike), the
prosecutor stated he believed she “asked a lot of questions that
were basically contrary to what I believed or contrary to our
positions.” The prosecutor additionally opined Juror 3505 was
“aggressive” because “she said ‘I can think for myself’ especially
when she was being questioned.” Commenting further, the
prosecutor mentioned Juror 3505 had a negative experience with
law enforcement and “became emotional” about the officer that
she believed “lied against her.” The prosecutor also mentioned
“[o]ne of the other reasons that [he] did end up kicking her,”
namely, his belief that Juror 3505 raised her hand and said
“anything is possible” in response to his pool hypothetical.
As to Juror 5542 (the prosecutor’s fourth strike), the
prosecutor referenced her desire to do criminal defense work and
stated this indicated she would be biased toward defendant and
unfavorable toward law enforcement and the prosecution.
Finally, as to Juror 8832, the prosecutor stated the reason
he excused her was because she did not raise her hand when he
sought a commitment that prospective jurors would not resort to
sympathy or emotion in deciding the case. The prosecutor also
mentioned his perception of Juror 8832’s demeanor, stating she
and the prospective juror in seat nine were sitting with their
arms crossed looking at him in what he described as a “defensive
posture.”
At the conclusion of the prosecutor’s statement of reasons,
the trial court denied the Batson motion. The court stated: “All
right. So [the prosecutor’s] recitation of the responses is
accurate, and I will find the People have provided specific race
neutral reasons for the peremptory challenges . . . .”
10
Jury selection continued thereafter, with the trial court
calling several additional prospective jurors from the jury panel
to again comprise a group of 21 and replace those that had been
excused. The court proceeded in the same fashion by first
questioning the newly called prospective jurors and then
permitting attorney voir dire.
There was at least one additional Black woman among the
10 additional prospective jurors called to join the new group of
21: prospective juror number 5064 (Juror 5064). Because it will
be pertinent to our discussion later in this opinion, we will also
briefly recount the particulars of another prospective juror—
initially sitting in seat number 17 and ultimately seated on the
trial jury—whose race is not revealed by the record.
Juror 5064 was a single woman employed by Coca-Cola
whose hobbies included watching sports. She previously served
on a criminal jury in a domestic violence case that did not reach a
verdict, but she expressed no reservations about serving as a
juror in defendant’s case as a result of her prior jury experience.
When asked about prior negative experiences with law
enforcement, Juror 5064 described an incident during her earlier
service in the military when, while in uniform, she was held at
gunpoint by White police officers at a gas station in the Riverside
area (who were reported to have said “we don’t like your kind
over here”). According to Juror 5064, the police permitted her to
leave after she called her military commander and she later filed
a complaint against the officers (she was unaware of whether or
how the complaint was resolved). The trial court asked Juror
5064 if she would be able to be fair to the parties in this case
notwithstanding that experience and she said she said she would.
11
The juror in seat 17 was a married retiree with two
children. He previously served twice on criminal juries in
attempted murder cases and both juries reached verdicts (the
juror revealed, before the court could stop him, that the verdicts
were guilty verdicts). The juror in seat 17 also reported he had
twice been the victim of a crime, once when someone tried to
break into his house when he was out of state and another time
when his truck was vandalized. When asked, he told the court
there was nothing about either experience that would cause him
to hold it against either the defense or the prosecution.
During attorney voir dire of the second group of 21
prospective jurors, the prosecutor returned to the pool
hypothetical he used with the first group. After confirming the
new prospective jurors recalled the facts of the hypothetical, the
prosecutor called on the juror in seat 17, apparently believing it
looked like he (the juror) was about to say something. The juror
said, “Well, if you want me to say something, I will. So you found
the child wet. You sure it didn’t rain?” The prosecutor responded
he “didn’t give you that fact,” and a longer exchange between the
juror in seat 17 and the prosecutor ensued in which the juror
twice said anything was possible but ultimately agreed the child
probably jumped in the pool. 8
8
This was the full exchange: “[Prosecutor]: I think—I didn’t
give you that fact did I? Just checking. [¶] So no other possible
answer? [¶] [Prospective Juror]: Anything is possible. That’s
what you said. [¶] [Prosecutor]: No. I didn’t say that. Not on
that. The reason why I said it is—anything is possible but with
the facts that I gave you, the reasonable answer is what? [¶]
[Prospective Juror]: Anything can happen. It’s possible. [¶]
[Prosecutor]: No. No. In terms of the facts I gave you
surrounding that particular case. The kid went in the pool,
12
The prosecutor and the juror in seat 17 later had another
exchange concerning the prosecutor’s voir dire about infidelity.
The prosecutor asked whether anyone agreed or disagreed with
the statement that a person who found out about infidelity could
use physical force “regardless of the situation.” The juror in seat
17 responded, “It depends.” Asked to elaborate, the juror
mentioned sometimes people’s emotions “take over their mental
state” and “that’s why people hurt people.” The prosecutor
inquired whether that meant emotion was an excuse to use
physical violence, and the juror responded, “[n]ot in general, but
when you ask that it can happen, you know, they’re just human
beings” before subsequently clarifying that he thought using
physical force was not okay “[u]nder the law.”
Once attorney voir dire of the second group of prospective
jurors was complete, the trial court entertained challenges for
cause. The prosecution expressed concern about Juror 5064 (the
former military service member), believing her experience with
the police at the gas station in Riverside would impact how she
viewed law enforcement and “would be an issue especially in this
case.” The trial court disagreed and declined to excuse Juror
5064 stating, “I think she’s a strong juror. She said upfront she
didn’t like the way she was treated. She reported it, dealt with
it[,] but she also understands that that situation has nothing to
do with the current case.”
Following challenges for cause, the parties again exercised
peremptory challenges. After first striking another prospective
juror, the prosecution used a peremptory challenge to excuse
right? [¶] [Prospective Juror]: Yeah. He probably jump[ed] in
the water.”
13
Juror 5064. Then, after asking the trial court for a momentary
pause in the proceedings, the prosecution used its next
peremptory challenge to strike Juror 8061, the sales manager
with friends and family in law enforcement who was part of the
initial group of prospective jurors called. This triggered a second
Batson motion from the defense.
At sidebar, the defense emphasized the prosecution struck
two more Black female prospective jurors since the prior Batson
motion. The defense did not vigorously contest the prosecution’s
strike of Juror 5064, stating the prosecution may have been
concerned about her experience with the police in Riverside even
though it seemed she could be fair. But the defense did
strenuously object to the challenge to Juror 8061. The trial court
required the prosecutor to state the reason why he struck that
prospective juror.
This, verbatim, is the entirety of the prosecutor’s
explanation: “The reason I dismissed her, Your Honor, was in
regards to her responses when I gave the hypothetical in regards
to the reasonable versus possible. She did give pushback on what
she stated was possible. And I tried to explain the reasonable
issue. She basically tried to explain it away saying anything is
possible. And that was one of the reasons why. [¶] This case—
obviously we’re dealing with reasonable as opposed to possible,
and a juror who thinks of other possible answers away from the
facts I think would present an issue. And that was the reason
why I kicked her.”
Without inviting a reply from the defense, the trial court
ruled as follows: “All right. I mean, I didn’t keep those exact
notes, but I do remember her response along those lines. So I’ll
indicate that the People have provided a race neutral reason for
14
excusing that particular juror and deny the Batson . . . motion at
this time.” The court noted for the record that at the time of the
prosecutor’s strike of Juror 8061 there were “two Black females
and one other Black male at least who are in the [jury] box . . . .”
The court did not, however, describe the race or gender
composition of the jury panel as a whole, nor did the court
identify which of the prospective jurors that remained in the
“box” were Black such that we might determine whether any or
all were ultimately seated on the jury.
Although the trial court had already made its ruling on the
Batson motion, the defense interjected with further argument
anyway. The defense emphasized there were other prospective
jurors who responded similarly to the prosecution’s pool
hypothetical but were not stricken by the prosecution. The
defense further argued Juror 8061 had not in fact said she “was
only going to look towards the possible,” and the defense
explained the hypothetical itself “opened up for [the prospective
jurors] to think of the possible.” With these points made, the
defense said “submitted” and the trial court’s only response was
to say “[a]ll right.”
Once Batson proceedings at sidebar concluded, the trial
court excused Juror 8061 and proceeded with jury selection. The
prosecution exercised no further peremptory challenges (twice
accepting the panel as constituted) and the defense exercised
three. After voir dire of several additional prospective jurors
called by the trial court from the jury panel, and excusal of one
for cause, the parties then stipulated to accept the jury as then
constituted, including designating three alternate jurors. As
already mentioned in passing, the aforementioned juror in seat
15
17 (the married retiree) was seated on the trial jury as juror
number 7.
II
The Equal Protection Clause of the United States
Constitution and the California Constitution’s guarantee of a jury
drawn from a representative cross-section of the community
prohibit parties from using peremptory challenges to strike a
prospective juror because of his or her race. (Batson, supra, 476
U.S. at 89; People v. O’Malley (2016) 62 Cal.4th 944, 974
(O’Malley).) Ordinarily, courts determine whether these
constitutional rights have been violated by employing a three-
stage burden shifting procedure: the moving party must first
establish a prima facie case of discrimination by showing the
totality of the relevant facts gives rise to an inference of
discriminatory purpose; the burden then shifts to the party using
the peremptory challenge to come forward with a race-neutral
explanation for striking the prospective juror(s) in question; and
a court then considers whether the prosecution’s stated
justification is credible and whether, in light of all relevant
circumstances, the defendant has shown purposeful race
discrimination. (People v. McDaniel (2021) 12 Cal.5th 97, 122
(McDaniel); O’Malley, supra, at 974.) In an appeal like this,
where the trial court required the prosecution to state its reasons
for exercising peremptory challenges, we skip the first two steps
and move straight to considering the credibility of the
prosecution’s stated reasons and whether the record as a whole
reveals a discriminatory motive for removing even a single
prospective juror. (McDaniel, supra, at 122; People v. Baker
(2021) 10 Cal.5th 1044, 1076 [“Because the trial court found a
16
prima facie case of racial discrimination and the prosecutor
stated a reason for the strikes at issue, the question before us is
whether defendant has shown it ‘“more likely than not”’ that at
least one of the ‘“challenge[s] was improperly motivated”’”]
(Baker); see also Foster, supra, 578 U.S. at 499.)
As we go on to explain, the record does reveal such an
improper motivation for the strike of Juror 8061. Ordinarily, we
accord due deference to a trial court’s denial of a Batson motion,
but that deference is not warranted here because the trial court
did not make a reasoned effort (we have no doubts about the
court’s sincerity) to evaluate the nondiscriminatory justification
the prosecutor offered for striking Juror 8061. (McDaniel, supra,
12 Cal.5th at 122.) So we undertake our own review of the record
and see evidence indicating Juror 8061 was more likely than not
excused at least because of her race (and maybe even because of
her race and gender, given the facts of defendant’s offense): the
“sheer number,” as the trial court itself put it, of peremptory
challenges directed at Black women prospective jurors; Juror
8061’s background that by all appearances would make her an
ideal juror for the prosecution; the obviously pretextual reason
given by the prosecution for excusing Juror 8061; and the
prosecutor’s on-the-record statement that another Black female
prospective juror was “aggressive” because she said she could
think for herself. That between one and three Black people may
have remained on the jury after the prosecution withstood the
two Batson motions does not dispel the conclusion we draw; the
United States and California constitutions prohibit not only
efforts to exclude one race entirely but also subtler yet
discernable efforts to obtain a racially composed jury that is
17
better to an attorney’s liking. (See, e.g., People v. Snow (1987) 44
Cal.3d 216, 225.)
A
At the third stage of Batson review, “courts look to all
relevant circumstances bearing on the issue of discrimination.
[Citation.] Relevant circumstances may include the race of the
defendant, the ultimate racial composition of the jury, the
pattern of strikes, and the extent or pattern of questioning by the
prosecutor during voir dire. [Citations.] A court may also
consider the fact that the prosecutor impermissibly struck other
jurors ‘for the bearing it might have upon the strike’ of the
challenged juror. [Citation.] The high court has also held that
comparative juror analysis may be probative of purposeful
discrimination at Batson’s third stage. [Citation.]” (McDaniel,
supra, 12 Cal.5th at 122; see also Baker, supra, 10 Cal.5th at
1080 [the race of the defendant or victim and a challenged
prospective juror need not be identical; “a litigant may raise a
Batson/Wheeler objection regardless of the race of the defendant
or the victim”]; People v. Smith (2018) 4 Cal.5th 1134, 1148
[“‘[E]vidence of comparative juror analysis must be
considered . . . even for the first time on appeal if relied upon by
the defendant [if] the record is adequate to permit the urged
comparisons’”].)
Our ability to undertake this third stage review is made
more difficult because the parties and the trial court did not
make a robust record when the Batson issues were raised. Our
Supreme Court has emphasized that making an adequate record
may be “onerous,” but “the obligation to avoid discrimination in
jury selection is a pivotal one” and “[i]t is the duty of courts and
18
counsel to ensure the record is both accurate and adequately
developed.” (Baker, supra, 10 Cal.5th at 1080.) We nonetheless
do not have a record of the overall racial composition of either the
jury panel or the trial jury that was seated, nor do we know the
race of prospective jurors who were not individually discussed
during Batson proceedings at sidebar. That is unfortunate. But
the deficiencies in the record do not make our task impossible.
As we shall explain, even with the information that is lacking, we
still see good evidence establishing it is more likely than not that
Juror 8061 was stricken because of her race.
In undertaking that evidentiary review, the ordinary
deference given to a trial court’s ruling is unwarranted here.
(See, e.g., McDaniel, supra, 12 Cal.5th at 122 [“We defer to a trial
court’s ruling only if the court has made a ‘“sincere and reasoned
effort to evaluate the nondiscriminatory justifications offered”’ by
the prosecutor”].) That is so for several reasons.
First, at the time the defense objected to the strike of Juror
8061 (which came quite some time after the key moments when
she was the focus of individual voir dire), the trial court
acknowledged on the record that it “didn’t keep those exact notes”
and mustered a recollection of her responses as recounted by the
prosecution as being only “along those lines.” The absence of a
precise recollection that both of these comments reveal is reason
not to accord ordinary deference—particularly when, as we will
explain, the trial transcript demonstrates the prosecution’s
recollection of Juror 8061’s responses was inaccurate.
Second, the trial court gave the defense no opportunity to
respond to the prosecution’s proffered nondiscriminatory reason
for striking Juror 8061 before making its ruling. Then, when the
defense interjected with argument anyway to point out (correctly,
19
as we will explain) that other prospective jurors responded to the
prosecution’s pool hypothetical in a similar manner but were not
stricken, the trial court undertook no follow up whatsoever. That
again is reason not to defer. (See, e.g., McDaniel, supra, 12
Cal.5th at 123 [“In Gutierrez, we distinguished ‘neutral reasons
for a challenge [that] are sufficiently self-evident, if honestly
held, such that they require little additional explanation’ from
situations where ‘it is not self-evident why an advocate would
harbor a concern.’ ([People v. Gutierrez (2017) 2 Cal.5th 1150,
1171 (Gutierrez)].) In the latter instances, particularly where ‘an
advocate uses a considerable number of challenges to exclude a
large proportion of members of a cognizable group,’ the court
must ‘clarif[y] why it accepted the . . . reason as an honest one.’
(Ibid.)],” cleaned up; 9 People v. Hardy (2018) 5 Cal.5th 56, 76-77
9
Justice Kim’s dissenting opinion cites People v. Miles (2020)
9 Cal.5th 513, 542 (Miles) to claim a cursory finding by a trial
court will suffice unless the race-neutral reason the prosecutor
offers is “inherently implausible.” Miles cites Gutierrez for that
proposition, and Gutierrez in turn cites People v. Silva (2001) 25
Cal.4th 345 (Silva). (Miles, supra, at 539; Gutierrez, supra, 2
Cal.5th at 1171; Silva, supra, at 386.) The better reading of Silva
and Gutierrez, however, is that a trial court is excused from
making specific findings or questioning an attorney making a
peremptory challenge when the attorney’s reason is supported by
the record and inherently plausible—not that specific findings
are necessary only when the proffered reason is inherently
implausible. (Silva, supra, at 386 [“When the prosecutor’s stated
reasons are both inherently plausible and supported by the
record, the trial court need not question the prosecutor or make
detailed findings”]; Gutierrez, supra, at 1171 [“Yet when it is not
self-evident why an advocate would harbor a concern, the
question of whether a neutral explanation is genuine and made
in good faith becomes more pressing. That is particularly so
20
(Hardy); see also People v. Lenix (2008) 44 Cal.4th 602, 624
[“[C]omparative juror evidence is most effectively considered in
the trial court where the defendant can make an inclusive record,
where the prosecutor can respond to the alleged similarities, and
where the trial court can evaluate those arguments based on
what it has seen and heard”].)
Third and finally, the on-the-record ruling the trial court
made after the prosecution stated its ostensible reason for
striking Juror 8061 reveals a misapprehension of the governing
legal framework. (Baker, supra, 10 Cal.5th at 1078 [“Deference
may also be inappropriate when the court evinces a
misunderstanding of the legal inquiry”].) When the prosecutor
stated he excused Juror 8061 solely because of her response to his
pool hypothetical, the trial court said, in pertinent part, “I do
remember her response along those lines. So I’ll indicate that the
people have provided a race neutral reason for excusing that
particular juror and deny the Batson . . . motion at this time.”
That, however, is not an evaluation of the genuineness of the
prosecutor’s reason for striking Juror 8061, which is the ultimate
touchstone of a Batson inquiry. 10 (Id. at 1076 [question of
when, as here, an advocate uses a considerable number of
challenges to exclude a large proportion of members of a
cognizable group”].)
As we shall explain, the prosecutor’s reason in this case
does not even reach the plausible threshold; the idea that Juror
8061’s response to the esoterically framed pool hypothetical could
further be deemed an inherently plausible reason for excluding
her from jury service beggars belief.
10
The trial court similarly ruled on the first Batson motion
(“So [the prosecutor’s] recitation of the responses is accurate, and
I will find the People have provided specific race neutral reasons
21
whether discrimination has been shown ordinarily depends on
the “‘subjective genuineness’” of race-neutral reasons]; Hardy,
supra, 5 Cal.5th at 76 [“‘At the third step of the Batson/Wheeler
analysis, the trial court evaluates the credibility of the
prosecutor’s neutral explanation’”].) It is instead merely an
affirmation (albeit a mistaken one) that the prosecutor
remembered and articulated what Juror 8061 said during voir
dire. But Batson proceedings are neither memory competitions
nor assessments of note-taking prowess. So far as the record
reveals, the trial court held the prosecution to a far lower burden
than the law requires (mere recollection, not genuine motivation),
and this is a further reason why commonly warranted deference
is inappropriate and we instead rely on our own independent
review of the record. (Gutierrez, supra, 2 Cal.5th at 1159; cf.
People v. Battle (2021) 11 Cal.5th 749, 772 [undertaking de novo
review where it was unclear from the record whether the trial
court applied the appropriate legal standard].)
B
One indisputable fact is immediately apparent from this
record: the prosecution used a sizeable number of its peremptory
challenges to remove Black women from the jury panel. Of the
eight peremptory challenges exercised by the prosecution, five (or
62.5 percent) were used to strike Juror 3505, Juror 5542, Juror
8832, Juror 5064, and Juror 8061. This percentage does not
alone make out a Batson violation, of course, because there could
for the peremptory challenges . . . .”), and the similar rulings
illustrate there is a legal problem, not simply an unartfully
articulated rationale.
22
be legitimate nondiscriminatory reasons for the strikes and the
record does not disclose the overall racial composition of the jury
panel. 11 At the same time, however, this is an easily seen pattern
that is explainable by reliance on race (and gender) conscious
jury selection, and the evidentiary value of the sizeable number
of strikes remains relevant at Batson’s third stage. (Miller-El v.
Cockrell (2003) 537 U.S. 322, 340; McDaniel, supra, 12 Cal.5th at
122). Put more succinctly, the relatively high number of strikes
used against a protected group like the one here means we should
be especially attuned to the reasons the prosecution gave for
peremptory challenges that fell so heavily against Black women.
The law governing evaluation of a prosecutor’s proffered
reasons for exercising a peremptory challenge is straightforward.
“[W]hen illegitimate grounds like race are in issue, a prosecutor
simply has got to state his reasons as best he can and stand or
fall on the plausibility of the reasons he gives. A Batson
challenge does not call for a mere exercise in thinking up any
rational basis.” (Miller-El v. Dretke (2005) 545 U.S. 231, 252
11
In People v. Rhoades (2019) 8 Cal.5th 393, 429 (Rhoades),
our Supreme Court did not conclude the prosecution’s use of four
out of eight peremptory challenges against Black women gave
rise to an inference of discrimination when considering the
“totality of the circumstances”—which in that case included
obvious race-neutral reasons for the prosecution’s peremptory
challenges (strong views against the imposition of the death
penalty). (Id. at 424, 429-432.) Unlike Rhoades, the prosecution
here used over half of its peremptory challenges against Black
women and the circumstances are quite different: there are no
race-neutral reasons, obvious or otherwise, that would explain
the prosecution’s strike of Juror 8061.
23
(Miller-El II); accord, Miles, supra, 9 Cal.5th at 542; Gutierrez,
supra, 2 Cal.5th at 1170.)
Here, the prosecutor expressed no concerns about Juror
8061, e.g., demeanor, that cannot be gleaned from a review of the
trial transcript. Rather, the prosecutor articulated only one
reason for excluding her that we have already quoted in full:
Juror 8061’s reaction to his pool hypothetical. The prosecutor
said Juror 8061 gave “pushback on what she stated was possible,”
and when he “tried to explain the reasonable issue” she “basically
tried to explain it away saying anything is possible.”
The prosecutor’s recollection of Juror 8061’s response to the
hypothetical, however, is not accurate, and the inaccuracy is all
the more striking because the prosecutor asked the court for a
pause in the proceedings that gave him time to reflect before
peremptorily challenging Juror 8061. To review, this is what
happened. Juror 8061 asked the prosecutor if he wanted to know
what was the reasonable conclusion to draw from the
hypothetical, he said he did, and the very first words out of her
mouth were precisely the answer the prosecutor claimed he was
hoping to hear: Juror 8061 said, “The reasonable answer is that
he got in the pool.” 12 Juror 8061 then added that she did not
12
Justice Kim states Juror 8061 agreed the reasonable
answer was that the child got in the pool only “after a back-and-
forth with the prosecutor” and Justice Kim similarly refers to
Juror 8061’s “ultimate” agreement with the prosecutor on the
reasonable answer. These statements give the impression that
Juror 8061’s agreement about the reasonable answer was
somehow begrudging. We have reproduced what the trial
transcript reflects, and it is inconsistent with Justice Kim’s
characterization.
24
know that “for a fact” because the sprinklers could have come on,
but that observation (distinguishing the reasonable from the
possible) was consistent with how the prosecutor framed the
hypothetical in the first place: he told the prospective jurors that
“anything [wa]s possible” but his job was to prove it to the jury
beyond a reasonable doubt, not all doubt. Notwithstanding his
own framing, however, the prosecutor responded to Juror 8061’s
qualification of her answer by saying he “didn’t give [her] any of
that stuff,” by repeating (curiously enough) that “[a]nything could
have happened,” and by again asking what the “reasonable
answer” was. Juror 8061 then repeated without qualification
what she first said: the child got in the pool.
The prosecutor’s claim that this exchange (in which Juror
8061 gave him the answer he wanted and acknowledged the same
qualification he already acknowledged) reflects “pushback” by
Juror 8061 does not square with the record. It instead reads as
reaching—i.e., as the prosecutor’s belief Juror 8061 said
something different than she did because the prosecutor did not
want her on the jury—and it stands as significant evidence of
discriminatory intent. (See, e.g., Silva, supra, 25 Cal.4th at 385
[“Although an isolated mistake or misstatement that the trial
court recognizes as such is generally insufficient to demonstrate
discriminatory intent [citation], it is another matter altogether
when, as here, the record of voir dire provides no support for the
prosecutor’s stated reasons for exercising a peremptory challenge
and the trial court has failed to probe the issue [citations]”].)
The pretextual quality of the prosecutor’s stated reason for
striking Juror 8061 becomes even more obvious when we look to
the voir dire of two prospective jurors who the prosecutor did not
peremptorily challenge and who were ultimately seated on the
25
jury: the juror in seat 19 among the first group of prospective
jurors examined and the juror in seat 17 among the second group.
When the prosecutor first asked for a show of hands for any
prospective juror who believed it was possible that the
hypothetical child’s neighbor jumped over the fence and dragged
the child in the pool, the juror in seat 19 was among the
prospective jurors who raised their hands. But the prosecutor did
not ask that juror any follow up questions about the hypothetical,
much less object to that juror serving on the trial jury. Later,
when the prosecutor returned to the pool hypothetical with the
second group of prospective jurors, the juror in seat 17 engaged in
what is fairly described as pushback against the prosecutor’s
view of the hypothetical—certainly far more than Juror 8061
did. 13 Yet the prosecution did not peremptorily challenge the
juror in seat 17 either, and he too was seated on the trial jury.
Because the trial court and the parties did not make a
record of the race of prospective jurors who reacted to the pool
hypothetical (despite a defense objection on this specific ground),
we do not know the race of the jurors in seats 17 or 19. This
limits to a degree the strength of the inference we can draw from
a comparison with Juror 8061, but it does nothing to undermine
the comparative value for the key purpose for which we make the
comparison, namely, to show that the prosecutor’s reason for
excusing Juror 8061 was obviously pretextual. If the prosecutor
were so concerned with Juror 8061’s response to the hypothetical
that it was the sole reason he struck her, the prosecutor should
have been even more concerned about the juror in seat 17 making
13
The juror in seat 17 also expressed some ambivalence about
the use of physical force by people who learn of infidelity.
26
it on the jury and the prosecutor would have at least questioned
the juror in seat 19 about the hypothetical before permitting him
to be seated as a trial juror. (See, e.g., Miller-El II, supra, 545
U.S. at 244 [“In light of [the prospective juror’s] outspoken
support for the death penalty, we expect the prosecutor would
have cleared up any misunderstanding by asking further
questions before getting to the point of exercising a strike”].) The
prosecutor, of course, did neither, and we draw the natural
conclusion: the reason given for excusing Juror 8061 was mere
makeweight.
At this point in our analysis, we accordingly have the
following scenario: the prosecution struck five Black women from
the jury panel and the prosecution’s only stated reason for
striking one of the women, Juror 8061, does not hold up. We now
add a further point looking at the matter from the opposite
perspective: the facts in the record that suggest not only is there
no valid reason explaining the prosecution’s strike of Juror 8061,
there are several reasons why she “should have been an ideal
juror in the eyes of a prosecutor . . . .” (Miller-El II, supra, 545
U.S. at 247.) Juror 8061 had no prior negative experiences with
law enforcement and she had family, a best friend, and “a lot” of
acquaintances who worked in law enforcement. (See, e.g., People
v. Chism (2014) 58 Cal.4th 1266, 1321 [prospective juror’s strong
ties to law enforcement suggested he would be a favorable juror
for the prosecution].) She also had been a crime victim herself,
she had managerial experience at work, and she had previously
served on a criminal jury that reached a verdict. 14 With limited
14
We, of course, cannot be certain what the verdict was, but
her prior jury service was at least an indication that the
prosecution should be relatively less concerned about a hung jury
27
time for voir dire, parties may sometimes feel compelled to rely
on legally permissible generalizations even though there is a risk
they might not hold in any individual case; from that perspective,
it does not get much better for the prosecution than a prospective
juror like Juror 8061. Yet the prosecution still excluded her.
What we have already said is enough, but in assessing the
existence of purposeful discrimination against Juror 8061 we also
find some relevance in the prosecutor’s reference to Juror 3505 as
“aggressive” when stating the reasons why he challenged her.
(Batson, supra, 476 U.S. at 97 [“[T]he prosecutor’s questions and
statements during voir dire examination and in exercising his
challenges may support or refute an inference of discriminatory
purpose”]; see also McDaniel, supra, 12 Cal.5th at 122 [courts
may consider a prosecutor’s strike of other prospective jurors for
the bearing it might have on the strike of the challenged
prospective juror].) We do not believe use of the word
“aggressive” should always or even frequently be understood to
be a stereotype-laden term; there are surely some number of
Black women in this state who could be fairly described, without
suspicion (or negative connotation), as aggressive based on their
behavior. Prosecutors should not feel as if they must adhere to
an unwritten speech code when explaining the reasons for their
peremptory challenges. In other words, context matters. Here,
however, the context for the prosecutor’s remark does arouse
suspicion because the record indicates the prosecutor labelled
Juror 3505 aggressive merely for saying, in response to a
question from the court (not the prosecutor himself), that she
than it would be for a prospective juror who had never before
served on a criminal jury.
28
could think for herself. If professing an ability to think for one’s
self is enough to be dubbed “aggressive,” we think there is likely
a problem, albeit one that lies with the person hearing the
comment, not the one making it.
Considering the totality of what we have discussed—
including pattern, pretext, and prosecution-friendly
background—we are convinced Juror 8061’s exclusion from jury
service is more likely than not attributable to unconstitutional
discrimination. 15 In reaching that conclusion, we have given due
consideration to the trial court’s statement that there were still
three Black people “in the box” at the time of the prosecutor’s
strike of Juror 8061. That not all Black prospective jurors were
stricken, however, is not dispositive. (McDaniel, supra, 12
Cal.5th at 122; People v. Arellano (2016) 245 Cal.App.4th 1139,
1168 [reversing for Batson error even where the record
“implie[d]” two Black prospective jurors were ultimately seated
on the jury].) A prosecutor’s acceptance of a jury with at least
some Black members can sometimes dispel the existence of a
15
The dissent spends noticeably little time addressing
whether the record shows, more likely than not, that race
motivated the peremptory challenge to Juror 8061. Instead, it
focuses on our conclusion that the trial court did not make a
reasoned effort to evaluate the genuineness of the prosecution’s
reason for striking Juror 8061. Even taking the dissent on its
own narrow terms, the conclusion it reaches is belied by its own
analysis: by acknowledging that she relies on an “implied
finding” (post, page 5, italics added) that the prosecutor was
credible, Justice Kim concedes the trial court’s ruling does not do
what our Supreme Court says it must to warrant deference in a
case like this, i.e., evaluate the subjective genuineness of the
prosecutor’s reason.
29
discriminatory motive, but in this case such acceptance is equally
consistent with a judgment by the prosecution that it could afford
to press no further with additional strikes of Black prospective
jurors—lest it become objectively undeniable that purposeful
discrimination was occurring. We accordingly believe the
prosecution’s possible acceptance of some Black jurors in this case
is not especially probative. The Batson framework is designed to
ferret out purposeful discrimination, which is often difficult to
prove (see, e.g., People v. Bryant (2019) 40 Cal.App.5th 525, 544
(conc. opn. of Humes, J.)), and the prosecution’s strike of Juror
8061 is simply inexplicable on grounds other than her
membership in a legally protected category.
C
In holding the prosecution’s strike of Juror 8061 violated
Batson and Wheeler and their progeny, we of course do not
thereby brand the trial prosecutor an evil person. Some bias can
be implicit. Discrimination can arise from a mistaken hope for a
perceived competitive advantage rather than Jim Crow racial
animus. But race should never motivate excusing a prospective
juror from jury service. The constitutional rights that make up a
significant part of the fabric of our democracy simply will not
abide it. (Smith v. Texas (1940) 311 U.S. 128, 130 [“For racial
discrimination to result in the exclusion from jury service of
otherwise qualified groups not only violates our Constitution and
the laws enacted under it but is at war with our basic concepts of
a democratic society and a representative government”], fn.
omitted.) The remedy for the violation of such rights is reversal
without any need to show prejudice, followed by the opportunity
for retrial before an appropriately selected impartial jury.
30
(Rivera v. Illinois (2009) 556 U.S. 148, 161; Silva, supra, 25
Cal.4th at 386; Wheeler, supra, 22 Cal.3d at 283; People v.
Cisneros (2015) 234 Cal.App.4th 111, 120.)
DISPOSITION
The judgment is reversed and the matter is remanded for
retrial, assuming the People so elect.
CERTIFIED FOR PUBLICATION
BAKER, J.
I concur:
RUBIN, P. J.
31
People v. Salvador S. Salinas
B307985
KIM, J., Dissenting
I respectfully dissent. The trial court presided over the
jury selection process for two days, during which it denied an
initial Batson/Wheeler 1 motion based on the prosecutor’s
peremptory challenges to three Black female jurors. Later in the
proceedings, defendant made a second Batson/Wheeler motion
challenging the excusal of another Black woman, Juror No. 8061.
The court denied that motion, finding that “the [prosecutor]
provided a race[-]neutral reason for excusing that particular juror
. . . .” The majority reverses the judgment by independently
reviewing the record to conclude that the prosecutor was not
credible when he provided a race-neutral explanation for his use
of a peremptory strike to excuse Juror No. 8061 and thereby
violated Batson/Wheeler and their progeny. In my view, the
record does not support the majority’s conclusion that the court
failed to make a “‘“sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered”’ by the prosecutor” such
that an independent credibility finding is appropriate. (People v.
McDaniel (2021) 12 Cal.5th 97, 122.)
1 Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People
v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
According to the majority, “[t]he absence of a precise
recollection [revealed by the trial court’s comments] is reason not
to accord ordinary deference” to the court’s credibility finding.
The majority views the record of the colloquy between Juror No.
8061 and the prosecutor as inconsistent with the court’s stated
recollection that the juror’s response to the swimming pool
hypothetical was “along [the] lines” recited by the prosecutor.
But that is not how I read the record.
The colloquy with Juror No. 8061 began with her seeking
clarification of the question the prosecutor wanted answered
concerning the swimming pool hypothetical. She asked, “What’s
the reasonable answer?” In response, the prosecutor repeated,
“What’s the reasonable answer?” The juror then replied, “The
reasonable answer is that [the boy] got in the pool.” But she
immediately qualified her response by adding that she did not
“know that for a fact” and included an assumption, not stated in
the hypothetical, that “the sprinklers could have c[o]me on.”
Juror No. 8061’s response prompted the prosecutor to
admonish her to confine her answer to the facts of the
hypothetical. He then asked the juror, ““[Y]ou think the
sprinklers—” but she interrupted by volunteering that “anything
could have happened.” It was only after the prosecutor again
asked the juror for the reasonable answer under the facts of the
hypothetical that she responded, “[The boy] got in the pool.”
During the second Batson/Wheeler motion, the prosecutor
explained, “The reason I dismissed [Juror No. 8061] . . . was in
regards to her responses when I gave the [swimming pool]
hypothetical in regards to the reasonable versus possible. She
did give pushback on what she stated was possible. And I tried to
explain the reasonable issue. She basically tried to explain it
2
away saying anything is possible. And that was one of the
reasons why. [¶] This case—obviously we’re dealing with
reasonable as opposed to possible, and a juror who thinks of other
possible answers away from the facts I think would present an
issue. And that was the reason why I kicked her.” In response,
the trial court said, “I mean, I didn’t keep those exact notes. But
I do remember her response along those lines.” 2
In light of the colloquy, the prosecutor’s explanation of his
reason can fairly be read as generally consistent with his brief
and somewhat ambiguous exchange with Juror No. 8061. The
swimming pool hypothetical was meant to illustrate for the jury
panel the difference between a reasonable doubt, under the
applicable burden of proof, and a doubt based on speculation or
matters outside the evidence. Given the juror’s responses, the
prosecutor may have believed that she might entertain a doubt
based on speculation (anything could have happened) or matters
outside the evidence (the sprinklers could have come on). Thus,
his explanation of why he excused her—out of concern that,
notwithstanding her ultimate agreement on the reasonable
2 The majority interprets the trial court’s acknowledgement
that it did not “keep those exact notes” (italics added) to mean
that it did not take notes. But the court’s statement could
alternatively mean that (1) during the prosecutor’s explanation,
the court took the time to review its own notes to ensure the
accuracy of the prosecutor’s recollection of the colloquy; and (2)
although the court’s notes did not mirror the prosecutor’s
recollection of the colloquy, they were generally consistent with
the prosecutor’s brief recitation of his exchange with the juror.
Thus, the court’s acknowledgement does not, as the majority
concludes, show that the court abdicated its responsibility to
conduct a reasoned evaluation of the prosecutor’s justification.
3
answer, she might misapply the reasonable doubt standard—
finds support in our limited record.
Moreover, the trial court’s recollection that the juror’s
responses were “along [the] lines” of those recited by the
prosecutor was, in my view, accurate. The court’s ultimate
finding that the prosecutor’s explanation was genuine is therefore
entitled to deference because it was based, not solely on the
prosecutor’s recollection, but rather upon a “sincere and reasoned
effort” to evaluate the prosecutor’s explanation for the strike.
As the colloquy shows, after a back-and-forth with the
prosecutor, Juror No. 8061 agreed that the reasonable answer,
based solely on the facts of the hypothetical, was that the boy got
into the pool. Thus, a successful challenge to the juror for cause
would have been unlikely. But, “[s]o long as prosecutors are not
motivated by discriminatory intent, they can strike prospective
jurors for any reason—including for reasons that don’t
necessarily justify a challenge for cause.” (People v. Battle (2021)
11 Cal.5th 749, 779 (Battle).)
I also disagree with the majority’s second reason for
independently evaluating the credibility of the prosecutor’s
justification: the trial court’s failure to provide the defense an
opportunity to address the justification and its failure to follow
up when the defense ultimately did respond. “‘“‘“[T]he trial court
is not required to make specific or detailed comments for the
record to justify every instance in which a prosecutor’s race-
neutral reason for exercising a peremptory challenge is being
accepted by the court as genuine.”’”’ (People v. Vines (2011) 51
Cal.4th 830, 848 . . . .) However, ‘“[w]hen the prosecutor’s stated
reasons are either unsupported by the record, inherently
implausible, or both, more is required of the trial court than a
4
global finding that the reasons appear sufficient.”’ (People v.
Gutierrez (2017) 2 Cal.5th 1150, 1171 . . . (Gutierrez).)” (People v.
Miles (2020) 9 Cal.5th 513, 539.) In my view, the prosecutor’s
stated reason, that he was concerned that the juror might not
follow the law on reasonable doubt, is supported by the record
and not inherently implausible.
My disagreement with the majority extends to its third
reason for declining to defer to the trial court’s credibility finding:
the court misapprehended the governing legal framework for
evaluating Batson/Wheeler challenges. As support for that
conclusion, the majority cites the court’s “along those lines”
statement as evidence of its belief that (1) it was only required to
determine whether the prosecutor’s recollection was accurate;
and (2) it was not obligated to determine whether the
prosecutor’s proffered reason was genuine. But this is not a case
in which intervening decisional authority makes it difficult for us
to “be sure from the record that the trial court applied the
appropriate standard,” such that we should “conduct our own
independent review.” (Battle, supra, 11 Cal.5th at p. 772.) To the
contrary, the court’s “duty to determine if the defendant has
established purposeful discrimination,” as the third and final step
in the Batson/Wheeler inquiry (Batson, supra, 476 U.S. at p. 98),
has been clear since the decision in Batson. Under these
circumstances, we presume that the court was aware of and
followed the governing legal framework for determining such
challenges. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
Accordingly, on this record, I would defer to the trial court’s
implied finding that the prosecutor was credible when he
proffered a race-neutral reason for his exercise of a peremptory
challenge to Juror No. 8061. The “trial court enjoys a relative
5
advantage vis-à-vis reviewing courts, for it draws on its
contemporaneous observations when assessing a prosecutor’s
credibility. [Citation.]” (Gutierrez, supra, 2 Cal.5th at p. 1159.)
Thus, we should defer to trial court’s credibility determinations
“‘“in the absence of exceptional circumstances.”’” (People v. Lenix
(2008) 44 Cal.4th 602, 614.) “Experienced trial lawyers recognize
what has been borne out by common experience over the
centuries. There is more to human communication than mere
linguistic content. On appellate review, a voir dire answer sits on
a page of transcript. In the trial court, however, advocates and
trial judges watch and listen as the answer is delivered. Myriad
subtle nuances may shape it, including attitude, attention,
interest, body language, facial expression and eye contact. ‘Even
an inflection in the voice can make a difference in the
meaning. . . .’ ‘[T]he manner of the juror while testifying is
oftentimes more indicative of the real character of his opinion
than his words. That is seen below, but cannot always be spread
upon the record.’ [Citation.]” (Id. at p. 622.) Based on our
record, there are no exceptional circumstances warranting a
departure from this traditional rule of deference.
The majority’s conclusion that the prosecutor’s exercise of
the peremptory challenge was racially motivated demonstrates
the inherent limitations of exercising an independent review on a
record such as this. For instance, the majority observes that the
prosecutor did not exercise peremptory challenges to either the
juror in seat 19 (among the first group of prospective jurors
examined) or the juror in seat 17, who later engaged in
“pushback” with the prosecutor about the swimming pool
hypothetical. But, as the majority concedes, the record does not
reveal the race of these jurors, which illustrates why a finding of
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a racial motivation for the contested strike is not supported by
the record.
Finally, I am unpersuaded by the majority’s finding of
racial motivation based on its conclusion that Juror No. 8061’s
answers supported an inference she would have been an ideal
prosecution juror. “[J]ust because the record reveals that [the
juror] had much to commend her” does not mean that the
prosecutor’s reasons for excusing her were pretextual or that the
trial court erred in denying defendant’s Batson/Wheeler motion.
(Battle, supra, 11 Cal.5th at p. 779.)
In my view, the trial court did not err in denying
defendant’s Batson/Wheeler motions as to Juror No. 8061 or the
other jurors who were subjects of those motions and did not
violate defendant’s confrontation clause rights by admitting his
codefendant’s statements to the police― arguments raised by
defendant that the majority does not reach. I would therefore
affirm the judgment.
KIM, J.
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