I dissent.
During jury selection in this death penalty case, the defense objected to the prosecution’s exercise of peremptory challenges against four African-American women, asserting that the challenges were purposefully discriminatory on the basis of the prospective jurors’ race and gender. The trial court said it did not think a prima facie case had been shown and asked the prosecutor if she wanted to explain her challenges. The prosecutor responded she had challenged these prospective jurors because she thought they could not vote for the death penalty. The trial court then ruled on the objection, with these words: “As I say, I don’t think a prima facie case has been shown. H[] I would have to agree with the district attorney on her challenges of the four Black African-American women, that I did not believe they were persons who would vote for the penalty of death based upon their questionnaires and their answers [during voir dire].”
The use of peremptory challenges to eliminate prospective jurors because of their race or gender is prohibited by the federal Constitution (J. E. B. v. Alabama ex rel T. B. (1994) 511 U.S. 127, 129 [114 S.Ct. 1419, 1421-1422, 128 L.Ed.2d 89]; Powers v. Ohio (1991) 499 U.S. 400, 409 [111 S.Ct. 1364, 1369-1370, 113 L.Ed.2d 411]; Batson v. Kentucky (1986) 476 U.S. 79, 89 [106 S.Ct. 1712, 1719, 90 L.Ed.2d 69]) and by the California Constitution (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748]). Trial courts must use a three-step process to evaluate a defendant’s claim that the prosecutor has purposefully discriminated in the exercise of peremptory challenges. First, the defendant must make a prima facie case of improper discrimination. Second, the prosecutor must come forward with a race-neutral explanation for the challenges. Third, the trial court must decide whether the defendant has carried the burden of proving purposeful *469discrimination. (Purkett v. Elem (1995) 514 U.S. 765, 767 [115 S.Ct. 1769, 1770-1771, 131 L.Ed.2d 834]; Hernandez v. New York(1991) 500 U.S. 352, 358-359 [111 S.Ct. 1859, 1865-1866, 114 L.Ed.2d 395] (plur. opn. of Kennedy, J.).)
Here, the majority asserts that the “dispositive question” is “whether defendant demonstrated a prima facie case of group bias.” (Maj. opn., ante, at p. 422.) The majority is wrong. “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” (Hernandez v. New York, supra, 500 U.S. 352, 359 [111 S.Ct. 1859, 1866] (plur. opn. of Kennedy, J.).) Here, the prosecutor gave a race-neutral and gender-neutral explanation for the peremptory challenges of the four African-American women. The prosecutor said she thought these prospective jurors could not vote for the death penalty. The trial court then ruled on the ultimate issue of purposeful discrimination. The trial court said: “I would have to agree with the district attorney on her challenges of the four Black African-American women, that I did not believe they were persons who would vote for the penalty of death based upon their questionnaires and their answers [during voir dire].” This ruling on the ultimate question renders moot the preliminary question whether defendant had made a prima facie case.
In support of its assertion that the existence of a prima facie case is the dispositive issue, the majority relies on earlier decisions of this court holding that when a trial court has expressly found that a prima facie case has not been shown, the sufficiency of the defendant’s initial showing is not rendered moot by the trial court’s later determination that the prosecution has supplied race-neutral and genuine explanations. (People v. Welch (1999) 20 Cal.4th 701, 746 [85 Cal.Rptr.2d 203, 976 P.2d 754]; People v. Mayfield (1997) 14 Cal.4th 668, 723 [60 Cal.Rptr.2d 1, 928 P.2d 485]; People v. Turner (1994) 8 Cal.4th 137, 166-167 [32 Cal.Rptr.2d 762, 878 P.2d 521].) But these decisions are contrary to the overwhelming weight of authority in other jurisdictions on this issue of federal constitutional law. (See Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099, 1104; U.S. v. Sneed (10th Cir. 1994) 34 F.3d 1570, 1579-1580; Smith v. State (Ala.Crim.App. 2000) 797 So.2d 503, 522; People v. Davis (Colo.Ct.App. 1996) 935 P.2d 79, 82; People v. Martinez (1998) 297 Ill.App.3d 328, 335 [231 Ill.Dec 475, 696 N.E.2d 771, 775-776]; Koo v. State (Ind.Ct.App. 1994) 640 N.E.2d 95, 99; State v. Durham (La.Ct.App. 1996) 673 So.2d 1103, 1111; Manning v. State (Miss. 1998) 726 So.2d 1152, 1182-1183, overruled on an unrelated point in Weatherspoon v. State (Miss. 1999) 732 So.2d 158, 162; State v. White *470(Mo.Ct.App. 1992) 835 S.W.2d 942, 950; People v. Dalhouse (1997) 240 A.D.2d 420, 420-421 [658 N.Y.S.2d 408, 410]; State v. Williams (2002) 355 N.C. 501, 550-551 [565 S.E.2d 609, 638-639]; Neill v. State (Okla.Crim.App. 1994) 896 P.2d 537, 546, fn. 4; State v. Ruiz-Martinez (2001) 173 Or.App. 202, 205 [21 P.3d 147, 148]; Malone v. State (Tex.Crim.App. 1996) 919 S.W.2d 410, 412.)
This court has never reconsidered this issue of federal constitutional law in light of these conflicting decisions from other jurisdictions. These decisions persuade me that when the trial court has heard the reasons for the peremptory challenge and ruled on the ultimate question of intentional discrimination, a reviewing court should not concern itself with whether a prima facie case has been demonstrated, regardless of the presence or absence of an express finding on the existence of a prima facie case. Instead, the reviewing court should proceed to review the trial court’s ruling on the ultimate question. Accordingly, I review the trial court’s ruling that the prosecutor did not purposefully discriminate in the exercise of peremptory challenges.
Here, in reviewing the trial court’s ruling on the question of purposeful discrimination, it is not necessary to consider each of the four African-American women because “[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal.” (People v. Silva (2001) 25 Cal.4th 345, 386 [106 Cal.Rptr.2d 93, 21 P.3d 769].) Here, the trial court erred in denying the defense motion at least as to Prospective Juror B.W.
Nothing in the transcript of voir dire supports the prosecutor’s assertion that B.W. could not return a death verdict. As the majority acknowledges (maj. opn., ante, at p. 422), B.W.’s responses on voir dire were those of a person who was open to voting to impose the death penalty.
On voir dire by the trial court, B.W. reaffirmed statements she made on her questionnaire that she was “moderately in favor of the death penalty” and that “if it were on the ballot, [she] would vote for the proposition that California should have a death penalty.” Under further voir dire by the court, she said that, depending on the evidence introduced at the penalty phase, she could vote for the death penalty in a case in which the defendant was guilty of two counts of first degree murder with multiple-murder and perhaps also lying-in-wait special circumstances. She affirmed that in such a case she could vote for the death penalty if she concluded it was appropriate based on a weighing of aggravating and mitigating circumstances.
The prosecutor asked B.W. on voir dire whether, “if [she] felt death was morally appropriate,” she thought she could “com[e] down in open court at *471the conclusion of the case with the other jurors” and announce a verdict that would be “Yes, I vote to have you executed, Mr. Boyette”? B.W. answered, “Yes.” She also agreed that in deciding the issue of penalty she would consider mitigating aspects of defendant’s background and circumstances in aggravation including the facts of the crime.
As the majority observes, in one of her answers on the questionnaire, B.W. “expressed some impatience with the death penalty” by “noting the length of time some inmates spend on death row.” (Maj. opn., ante, at p. 422.) The questionnaire asked whether the prospective juror thought the death penalty was imposed “too often,” “too seldom,” “randomly,” or “about right.” B.W. circled “randomly,” with this explanation: “Look at death row. People have been waiting for years. You shouldn’t have death row if death never comes.”
The majority never explains why a prosecutor would consider a prospective juror’s impatience with delays in carrying out death sentences to be evidence that the juror would be reluctant to vote for a death sentence in this or any other case. Persons moderately or strongly in favor of the death penalty, not persons reluctant to impose it, would be most likely to express impatience with delays in executions. Significantly, the prosecutor did not ask B.W. about this questionnaire response during voir dire.
The majority also asserts that “neither the prosecutor nor the trial court was required to take the jurors’ answers at face value.” (Maj. opn., ante, at p. 422.) But neither the prosecutor nor the trial court said that B.W.’s answers were not credible or were belied by her facial expressions or demeanor. On the contrary, the trial court said it reached its conclusion about the challenged jurors’ death penalty views “based upon their questionnaires and their answers [during voir dire].” A reviewing court may not infer that peremptory challenges were based on a prospective jurors’ demeanor when the prosecutor never articulated that justification. (Turner v. Marshall (9th Cir. 1997) 121 F.3d 1248, 1254.)
When a prosecutor has given a facially nondiscriminatory reason for a peremptory challenge, the ultimate issue of purposeful discrimination turns on the credibility of the prosecutor’s explanation, and the trial court has a duty to make that credibility determination. (People v. Silva, supra, 25 Cal.4th at p. 385.) In doing so, the court must consider whether the record supports the prosecutor’s stated reason. “Where the facts in the record are objectively contrary to the prosecutor’s statements, serious questions about the legitimacy of a prosecutor’s reasons for exercising peremptory challenges are raised. [Citations.] The fact that one or more of a prosecutor’s *472justifications do not hold up under judicial scrutiny militates against the sufficiency of a valid reason.” (McClain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1221.)
A trial court “should be suspicious when presented with reasons that are unsupported or otherwise implausible.” (People v. Silva, supra, 25 Cal.4th at p. 385.) In this situation, a trial court should point out inconsistencies and ask probing questions to determine whether the stated reason is genuine or pretextual. Here, because B.W.’s juror questionnaire answers and voir dire responses provided little or no support for the prosecutor’s assertion that she would have difficulty voting for a death sentence, the trial court had a duty to inquire further, but it did not. Had the court inquired further, the prosecutor might have given some additional response providing a sufficient basis for concluding that her stated reason was genuine rather than pretextual. Because the trial court did not make “ ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation’ ” (ibid, quoting People v. Hall (1983) 35 Cal.3d 161, 167-168 [197 Cal.Rptr. 71, 672 P.2d 854]), the prosecutor was never afforded that opportunity.
Because the prosecutor’s stated reason for challenging B.W. is not fairly supported by the record, and because the trial court did not probe further to find a satisfactory explanation for this discrepancy, the court’s credibility determination is not fairly supported by the record and the court erred in denying defendant’s motion as to Prospective Juror B.W. Through this error, defendant was denied the right to a fair trial in violation of the equal protection clause of the federal Constitution (Batson v. Kentucky, supra, 476 U.S. 79, 84-89 [106 S.Ct. 1712, 1716-1719]) and his right under the state Constitution to a trial by a jury drawn from a representative cross-section of the community (People v. Wheeler, supra, 22 Cal.3d 258, 276-277).
For these constitutional violations, I would reverse the judgment.
Appellant’s petition for a rehearing was denied February 11, 2003, and the opinion was modified to read as printed above. Kennard, J., was of the opinion that the petition should be granted.