P. v. Austin

Filed 11/9/17 P. v. Austin CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
LARENE ELEANOR AUSTIN,
Defendant and Appellant.
B266558
(Los Angeles County
Super. Ct. No. MA051956)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Eric P. Harmon, Judge. Affirmed.
David Andreasen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Jonathan J. Kline and
Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________

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Appellant Larene Eleanor Austin appeals from the
judgment entered following her conviction by jury for first degree
murder, with personal use of a firearm, personal and intentional
discharge of a firearm, and personal and intentional discharge of
a firearm causing great bodily injury and death. (Pen. Code,
§§ 187, subd. (a), 12022.53, subds. (b) – (d).) Her sole contention
on appeal is that the trial court erroneously denied her multiple
Wheeler/Batson motions1 alleging the prosecution exercised
peremptory challenges to prospective jurors solely based on their
race or ethnicity. We affirm.
FACTUAL SUMMARY
A detailed presentation of the facts of the present offense is
unnecessary. The evidence established that on June 16, 2010,
appellant, using a firearm, shot and murdered LaNell Barsock in
Los Angeles County. The court sentenced her to 50 years to life
in prison. Appellant and the victim were African-Americans.
The sworn jury consisted of six Hispanics, five Caucasians, and
one African-American, and the alternate jurors consisted of three
African-Americans and one Caucasian.
DISCUSSION
Six Wheeler motions were made during jury selection in
this case: appellant made the first five motions, and the
prosecutor brought the sixth. The motions at issue on appeal are
appellant’s first, third, fourth, and fifth motions asserting that
the prosecutor’s peremptory challenges of prospective jurors were
1 People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v.
Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson).
Subsequent references to Wheeler motions imply Batson claims as
well.

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motivated by racial or ethnic bias. As to the first Wheeler motion,
we find no error in the trial court’s ruling that appellant failed to
establish a prima facie showing that the prosecutor’s first four
challenges were based on the race or ethnicity of the challenged
jurors. As to the third, fourth and fifth motions, we uphold the
trial court’s determination that the prosecutor provided genuine,
neutral justifications for his excusal of the jurors subject to those
motions, and that appellant failed to prove purposeful
discrimination on the basis of race or ethnicity.
1. First Wheeler Motion (Jurors 8238, 5709, 8520 &
8392).
Appellant’s first Wheeler motion was based on the
prosecutor’s challenge to one African-American prospective juror
and three Hispanics.
a. Pertinent Facts.
(1) Voir Dire of Challenged Prospective Jurors.
(a) Juror 8238 (an African-American man).
Juror 8238 (Juror 1 in the jury box), whom the court later
identified as an African-American man, worked at a Rite Aid
warehouse. During voir dire, the following confusing colloquy
occurred regarding Juror 8238’s response to a question on the
jury questionnaire about his marital status2: “The Court: Okay.
2 The juror questionnaires referenced during voir dire are
not part of the record on appeal. Although we granted
appellant’s request to augment the record to include these
questionnaires, the superior court reported that a search of the
court file failed to yield them. However, we glean from the record
that one of the questionnaire items asked for the jurors’ marital
status.

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Staple.[3] [¶] The Reporter: Sorry? [¶] The Court: Say that one
more time. What staple? [¶] [Juror 8238]: Mental state is fine,
normal. [¶] The Court: One sec. Your marital status. That’s
what we’re looking for. You married? Single? Divorced? [¶]
[Juror 8238]: Single. Sorry. Single still. I have one child.”
Juror 8238 also stated that he lacked jury experience. He told
the prosecutor he would not have a problem convicting the
defendant if the prosecutor proved his case. When defense
counsel asked if he would be more likely to credit the testimony of
a police officer over that of a lay witness, this juror responded,
“I honestly wouldn’t know. This is my first time here.”
(b) Juror 5709 (a Hispanic man).
Juror 5709 (Juror 6), whom the court later identified as a
Hispanic man, “stock[ed]” at the 99 Cent Store, was single
without children, and lacked jury experience. During voir dire by
the court concerning his responses on the questionnaire, Juror
5709 stated he did not remember and was “not too sure” if he
answered “yes” to any questions. During voir dire by the
prosecutor, the prosecutor indicated Juror 5709 had given “yes”
answers to certain questions, including question No. 12, which
asked if jurors or their family members had been crime victims.
Juror 5709 explained that he “probably just got mixed up and I
was throwing ‘yeses’ and ‘no’s’ out there.”
3 Although the court reporter transcribed the word “staple,”
it appears from the context that the word “stable” should have
been transcribed.

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Juror 5709 indicated he would be able to convict the young
female defendant if the prosecutor proved his case, and Juror
5709 denied having any positive or negative experiences with law
enforcement. When asked if he had strong feelings about the
criminal justice system, he responded, “Everything is made up of
good ones and bad ones,” and then clarified that he was referring
to police officers.
(c) Juror 8520 (a Hispanic woman).
Juror 8520 (Juror 4), whom the court later identified as a
Hispanic woman, was a single student who was studying
psychology and who provided in-home health care for her
mentally ill sister.
Juror 8520 had experienced negative contact with law
enforcement. On over 50 occasions, the police were summoned as
a result of her sister’s mental health problems; sometimes officers
acted appropriately and other times they did not. After Juror
8520 stated that the police did not treat her sister poorly, the
court asked, “why is it negative to you?” Juror 8520 replied, “Oh,
I was negative and I mean it was not a good thing.”
(d) Juror 8392 (a Hispanic man).
Juror 8392 (first Juror 17, then another Juror 4), whom the
court later identified as a Hispanic man, was a student studying
mechanical engineering. He was single without children, and
lacked jury experience. His father and brother each had been
arrested for driving under the influence. During voir dire by the
prosecutor, Juror 8392 opined that in 15 percent of criminal
cases, innocent people are convicted.

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(2) Appellant’s First Wheeler Objection and the
Trial Court’s Ruling.
The prosecutor exercised his first four peremptory
challenges against Jurors 8238, 5709, 8520, and 8392.
Appellant’s counsel then made his first Wheeler motion.
Appellant’s counsel initially argued the prosecutor
improperly challenged Jurors 8238, 5709, and 8392 (the three
men, consisting of one African-American and two Hispanics)
because they were all “very young” and “minorities.”4 Appellant’s
counsel then modified his Wheeler motion to include Juror 8520,
the Hispanic woman, but commented, “However, my focus is
really on the three.”5
The court concluded all four jurors were in “a protected
class” by virtue of their race or ethnicity. The court asked
appellant’s counsel, “in terms of a prima facie case, do you believe
that there’s evidence of their systematic exclusion? It’s more
than just saying they’re all part of a protected class.” Appellant’s
counsel argued that he believed the prosecutor wanted to keep
minorities off the jury for unspecified strategic reasons.
4 The parties below disputed whether challenging jurors
based on their youth violates Wheeler. On appeal, appellant
challenges only the alleged exclusion of jurors based on race or
ethnicity, and thus we do not address the propriety of a Wheeler
motion regarding peremptory challenges based on age.
5 Although respondent contends that appellant abandoned
her Wheeler motion as to Juror 8238, the African-American man,
the record is ambiguous as to which particular three jurors of the
four were the intended focus of appellant’s modified Wheeler
motion. We decline to find any forfeiture with respect to the
Wheeler motion as to Juror 8238.

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The court found that at that point the panel of 12 jurors
was very diverse and included two African-Americans, at least
two Asians, and a Hispanic. The court indicated that, of the
20 people in the gallery, “probably, maybe 25 percent . . . maybe
more” were not Caucasians. The court stated, “I don’t find that
the exclusion of these jurors or . . . the peremptories against them
meets a prima facie showing at this time.” The court then stated,
“I do invite the prosecutor to justify them if he chooses.” The
prosecutor proffered justifications as to the four jurors. The court
did not comment on the reasons. After a recess, the prosecutor
tendered additional reasons relating to the jurors’ youth, and lack
of life and work experience. The prosecutor relayed that he had
researched whether age was a prohibited basis for a peremptory
challenge and concluded that it was not. After accepting the
prosecutor’s augmenting of the record, the court reiterated that it
had not found a prima facie showing as to the prosecutor’s first
four peremptory challenges.
b. Analysis.
(1) Legal Framework and Standard of Review
When Trial Court Found No Prima Facie
Case.
In Wheeler, our Supreme Court held that “the use of
peremptory challenges to remove prospective jurors on the sole
ground of group bias violates the right to trial by a jury drawn
from a representative cross-section of the community under
article I, section 16, of the California Constitution.” (Wheeler,
supra, 22 Cal.3d at pp. 276-277.) Batson reached the same
conclusion based on the federal equal protection clause. (People
v. Huggins (2006) 38 Cal.4th 175, 226.)

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When a defendant asserts at trial that the prosecution
made a peremptory challenge solely based on race or ethnicity,
first the defendant must make a prima facie case by showing the
totality of the relevant facts gives rise to an inference of
discriminatory purpose. Second, assuming the defendant
produces evidence sufficient for the trial judge to draw such an
inference, the burden then shifts to the prosecutor to provide a
nondiscriminatory explanation for the challenges. Third, if a
neutral explanation is tendered, the trial court must decide
whether the defendant has proven purposeful discrimination.
(People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez);
People v. Cowan (2010) 50 Cal.4th 401, 447.)
“A trial court’s ruling on a Wheeler motion is reviewed for
substantial evidence. . . . ‘Because of the trial judge’s knowledge
of local conditions and local prosecutors, powers of observation,
understanding of trial techniques, and judicial experience, we
must give “considerable deference” to the determination that
appellant failed to establish a prima facie case of improper
exclusion. [Citation.]’ [Citation.].” (People v. Rushing (2011)
197 Cal.App.4th 801, 809; see People v. Lenix (2008) 44 Cal.4th
602, 621 (Lenix).)
Where, as here, “[p]rior to soliciting the prosecutor’s
reasons justifying his challenges, the court expressly ruled that it
did not find a prima facie case, and that it only asked the
prosecutor for his justifications for purposes of completing the
record . . . , the issue of whether a prima facie case has been
established is not moot. . . .” (People v. Turner (1994) 8 Cal.4th
137, 167 (Turner).) Thus, “an appellate court properly reviews
the first-stage ruling if the trial court has determined that no
prima facie case of discrimination exists, then allows or invites

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the prosecutor to state reasons for excusing the juror, but refrains
from ruling on the validity of those reasons.” (People v. Scott
(2015) 61 Cal.4th 363, 386 (Scott); see People v. Sattiewhite (2014)
59 Cal.4th 446, 470 (Sattiewhite) [unless trial court explicitly or
implicitly evaluated prosecutor’s stated justifications, appellate
review should begin with trial court’s first stage finding of no
prima facie case].)
In determining whether the trial court correctly found
there was no prima facie case, the appellate court may not rely on
the reasons volunteered by the prosecutor, as those asserted
justifications have no relevance to the analysis at this first stage.
(Scott, supra, 61 Cal.4th at p. 390.) Only if the appellate court
determines that the trial court erred in finding no prima facie
case of discrimination does the court proceed to the “third stage”
and examine the prosecutor’s asserted reasons for excusing the
jurors. (Id. at p. 391.)6
Although appellant acknowledges that the above described
legal framework typically applies, she suggests that Scott
prescribes a different approach for the instant appeal because it
involves multiple Wheeler motions. Specifically, she argues that
because the trial court reached the third stage of the Wheeler
review with respect to appellant’s third, fourth and fifth Wheeler
motions (discussed below), Scott requires us to begin our review
of her first motion at the third stage as well, even though the
trial court never got there. Appellant is wrong.
6 Because, as further discussed below, we affirm the trial
court’s finding of no prima facie showing as to the first Wheeler
motion, we have no need to recite the prosecutor’s asserted
justifications for each of these four peremptory challenges.

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Scott merely held that “[w]here the appellate court is
already evaluating the sincerity of the proffered reason for
excusing one juror as part of its review of all the evidence as it
bears on the question whether the excusal of another juror
constituted unlawful discrimination [citations], the appellate
court may likewise begin its review of the denial of the
Batson/Wheeler motion as to the first juror by evaluating the
sincerity of the proffered reason.” (Scott, supra, 61 Cal.4th at
p. 392.) Scott describes an exception applicable in a limited
procedural context not present here -- namely, where the
prosecutor’s reasons for dismissing one juror, for whom no prima
facie showing was found, subsequently become the subject of
another Wheeler motion for a different juror whose dismissal is
analyzed at the third stage, and the court then appears to accept
the prosecutor’s reasons for dismissing both jurors.
In the context of evaluating the third, fourth, and fifth
Wheeler motions, the trial court here never examined the
prosecutor’s asserted reasons for excusing any of the first four
jurors who were the subject of appellant’s first motion.
Consequently, we have no reason to evaluate the prosecutor’s
stated reasons for dismissing the jurors at issue in the first
motion. Rather, in considering whether the first Wheeler motion
was properly denied, we apply the typical framework, beginning
with the trial court’s first-stage ruling that there was no prima
facie showing of discrimination on the basis of race or ethnicity.
(2) Appellant Failed to Make the Requisite
Prima Facie Showing.
“[T]he existence of a prima facie case depends on
consideration of the entire record of voir dire as of the time the
motion was made.” (Scott, supra, 61 Cal.4th at p. 384.) The

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challenged juror’s “racial identity, standing alone, is not
dispositive” in determining whether a defendant has made a
prima facie showing of discrimination by the prosecution in its
juror challenge. (Sattiewhite, supra, 59 Cal.4th at p. 470.)
Relevant factors include “whether the prosecution (1) struck most
or all of the members of an identifiable group from the venire,
(2) used a disproportionate number of its peremptory challenges
against that group, or (3) engaged in little more than desultory
voir dire.” (Ibid.) Evidence that the defendant is a member of
the identified group, or that the victim is a member of the group
to which the majority of the remaining jurors belong, is also
relevant to the inquiry. (Scott, at p. 384.) At this first stage,
“ ‘[a] court may also consider nondiscriminatory reasons for a
peremptory challenge that are apparent from and “clearly
established” in the record.’ ” (People v. Sanchez (2016) 63 Cal.4th
411, 434 (Sanchez).)
Tellingly, appellant makes no argument on appeal that the
trial court should have found a prima facie case of discrimination
as to these four prospective jurors. Below, appellant also failed to
articulate factors that supported an inference of impermissible
bias by the prosecutor in the exercise of the four peremptory
challenges. The trial court told appellant’s counsel, “It’s more
than just saying they’re all part of a protected class,” and
effectively invited counsel to present evidence to support an
inference that the peremptory challenges were based on the
jurors’ race or ethnicity. Nonetheless, appellant’s showing
consisted of little more than the bare allegation that the
prosecutor challenged four jurors who were all minorities.

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To the extent appellant attempts to lump together the
African-American and the three Hispanic jurors into one
protected group consisting of “people of color” or “minorities,” that
effort fails. As our Supreme Court has held, “[n]o California case
has ever recognized ‘people of color’ as a cognizable group” for
purposes of a Wheeler motion. (People v. Davis (2009) 46 Cal.4th
539, 583; see People v. Neuman (2009) 176 Cal.App.4th 571,
575-579 (Neuman).)
Nor did the trial court err in concluding that appellant
failed to make a prima facie showing as to the prosecutor’s use of
his first peremptory challenge to excuse an African-American
juror (Juror 8238). It is plainly relevant that a defendant and the
challenged juror are members of the same protected class (People
v. Reynoso (2003) 31 Cal.4th 903, 914 (Reynoso)), but “that fact
alone does not establish a prima facie case of discrimination.”
(People v. Kelly (2007) 42 Cal.4th 763, 780.) Appellant is African-
American, which potentially could support an inference that the
prosecutor struck an African-American juror for fear he would be
unduly sympathetic to appellant, but in this case the victim was
also African-American, a circumstance which could be viewed as
canceling out any perceived bias by an African-American juror in
favor of appellant. (See Sanchez, supra, 63 Cal.4th at p. 436
[finding “[i]t is not clear prosecutors would be motivated to
excuse prospective jurors who self-identified as Mexican-
American in a case involving . . . Hispanic victims”]; People v.
Hoyos (2007) 41 Cal.4th 872, 815 (Hoyos) [finding it “unlikely the
prosecutor would be concerned about minorities unduly
identifying with the defendant” when the victim belonged to the
same minority group].) Further, because Juror 8238 was the only
African-American to be dismissed to that point, it is difficult to

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draw an inference that his race was the reason the prosecutor
dismissed him, particularly when, as the trial court noted, two
other African-Americans remained on the panel. (See People v.
Manibusan (2013) 58 Cal.4th 40, 83-84 [finding no inference of
purposeful discrimination arose where there was “no showing
that the prosecution had excused any other prospective juror of
the same ethnicity”]; Turner, supra, 8 Cal.4th at p. 168 [“While
the fact that the jury included members of a group allegedly
discriminated against is not conclusive, it is an indication of good
faith in exercising peremptories, and an appropriate factor for the
trial judge to consider in ruling on a Wheeler objection”]; People v.
Jones (2017) 7 Cal.App.5th 787, 803-804 [noting the difficulty in
discerning a pattern of discrimination when only a few members
of a cognizable group have been challenged].) A review of the
record also satisfies us that the prosecutor’s questioning of this
African-American juror was more than perfunctory.
Further still, we discern from this record that Juror 8238
wrongly interpreted the juror questionnaire item asking about
his “marital status” as a request to describe his “mental status.”
Given his misreading of this simple question, a reasonable
prosecutor might well have had concerns about this juror’s
cognitive abilities and ability to process the evidence and apply
the jury instructions. (Cf. Turner, supra, 8 Cal.4th at p. 169.)
Thus, nondiscriminatory reasons for striking Juror 8238 are
apparent from the record.
Likewise, the trial court did not err in concluding that
appellant failed to raise an inference that the prosecutor’s
challenge to the three Hispanic jurors was based on their
ethnicity. As noted, appellant is African-American, not Hispanic.
(Neuman, supra, 176 Cal.App.4th at p. 581 [defendant’s

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membership in different racial group than excused juror’s was
factor supporting trial court’s ruling of no prima facie case of
racial discrimination].) The prosecutor undoubtedly used a
disproportionate number of his peremptory challenges against
Hispanics, with three of his first four challenges exercised
against Hispanics. However, this fact alone does not compel a
finding of a prima facie case. (Hoyos, supra, 41 Cal.4th at p. 901
[excusal of three out of four Hispanics, where defendant was
Hispanic, did not state a prima facie case where the record
disclosed nondiscriminatory reasons for challenges]; People v.
Farnam (2002) 28 Cal.4th 107, 136 [no prima facie case shown
even where four of first five challenges were to Black prospective
jurors and “a very small minority of jurors on the panel were
Black”]; Neuman, at pp. 584-585.)
The prosecutor devoted significant time to each of these
prospective jurors on voir dire and the questioning revealed
reasonable grounds for challenging each of them. Juror 5709
indicated he got “mixed-up” when filling out the jury
questionnaire, and suggested he had thrown out “ ‘yeses’ and
‘no’s’ ” in answering those written questions, resulting in
responses that were incorrect. Such willy-nilly responses
reasonably would raise concerns about his ability to understand
the proceedings (cf. Turner, supra, 8 Cal.4th at p. 169) or to pay
attention (cf. Reynoso, supra, 31 Cal.4th at pp. 925-926). “When,
as here, a prospective juror exhibits obvious signs of being
unsuitable for the jury, the inference that the prosecutor excused
the juror on an improper basis becomes less tenable and a
correspondingly greater showing is required to support that
inference.” (Sattiewhite, supra, 59 Cal.4th at p. 470 [even though
prosecutor struck the only African-American juror, and defendant

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was African-American, that juror’s confused answers on voir dire
demonstrated nondiscriminatory basis for his excusal].)
As to Juror 8520, during voir dire she revealed that she and
her mentally ill sister had negative experiences with law
enforcement, with her sister experiencing approximately
50 contacts with deputies, some of whom did not act
appropriately. It was thus apparent from the record that this
prospective juror had negative experiences with law enforcement
that could cloud her judgment in evaluating testimony and
conduct by police officers in this case. (People v. Panah (2005)
35 Cal.4th 395, 442; People v. Avila (2006) 38 Cal.4th 491,
554-555.) She also was a single student. (Neuman, supra,
176 Cal.App.4th at p. 582 [fact that excused jurors were all
“young students, inexperienced at life” supported trial court’s
finding of no prima facie case]; People v. Perez (1994)
29 Cal.App.4th 1313, 1328.)
Juror 8392 also was a single student but, even more
significantly, he displayed a distrust of the criminal justice
system, opining that 15 percent of the time, innocent people are
convicted. “ ‘A prospective juror’s distrust of the criminal justice
system is a race-neutral basis for excusal.’ ” (People v. Winbush
(2017) 2 Cal.5th 402, 439 (Winbush); see People v. Calvin (2008)
159 Cal.App.4th 1377, 1386 (Calvin) [“skepticism about the
fairness of the criminal justice system is a valid ground for
excusing jurors”].)
In light of the revelations on voir dire by each of these
Hispanic jurors, we find that the totality of the circumstances at
the time did not support an inference of a discriminatory purpose
on the part of the prosecutor. The trial court did not err by
denying appellant’s first Wheeler motion.

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(3) Comparative Analysis.
Appellant invites us to engage in comparative analysis in
connection with her first Wheeler motion by considering Juror
2578, whom appellant asserts was a Caucasian man who was not
challenged even though, according to appellant, he was similarly
situated with respect to the four jurors. “When a court
undertakes comparative juror analysis, it engages in a
comparison between, on the one hand, a challenged panelist, and
on the other hand, similarly situated but unchallenged panelists
who are not members of the challenged panelist’s protected
group.” (Gutierrez, supra, 2 Cal.5th at p. 1173.) We decline the
invitation because a comparative analysis is neither necessary
nor appropriate when the trial court has correctly found no prima
facie showing of an improper challenge. “ ‘Whatever use
comparative juror analysis might have in a third-stage case for
determining whether a prosecutor’s proffered justifications for his
[or her] strikes are pretextual, it has little or no use where the
analysis does not hinge on the prosecution’s actual proffered
rationales . . . .’ ” (People v. Bonilla (2007) 41 Cal.4th 313, 350;
People v. Taylor (2010) 48 Cal.4th 574, 617; Gutierrez, at p. 1173
[reconfirming that “comparative analysis may be probative of
purposeful discrimination at Batson’s third stage” only].)
(4) Ineffective Assistance Claim.
Appellant argues she received ineffective assistance of
counsel by her trial counsel’s failure to renew her Wheeler claim
as to the four jurors “once the judge found a prima facie case of
discrimination” as to later-challenged jurors. Appellant suggests
her counsel should have renewed the claim as to the four jurors
each time the trial court considered the remaining three Wheeler
motions.

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However, appellant concedes that her trial counsel, having
failed to renew the claim, forfeited the issue of renewed
consideration of that claim in connection with the remaining
motions. (People v. Dunn (1995) 40 Cal.App.4th 1039, 1053
(Dunn); accord, People v. Irvin (1996) 46 Cal.App.4th 1340, 1352.)
Having found that nondiscriminatory reasons for the excusal of
each of the four jurors were apparent from the record, we reject
appellant’s ineffective assistance claim. The record affords no
basis for concluding that trial counsel’s omission was not based
on an informed tactical choice. (Cf. People v. Anderson (2001)
25 Cal.4th 543, 569; Dunn, at p. 1055.)
2. Appellant’s Third Wheeler Motion (Juror 4247: an
African-American man).
a. Pertinent Facts.
The trial court’s initial voir dire of Juror 4247 proceeded as
follows:
“Prospective Juror No. 4247: I stay in Lancaster since
2001. I’m a customer-service manager at Walmart.
I’m single. I have two kids. Never been a juror.
Twelve, yes. I’ve had a -- I’ve lost a friend before.
“The court: To violent crime?
“Prospective Juror No. 4247: Yes.
“The court: And what was the nature of that? Were they
murdered?
“Prospective Juror No. 4247: Yes.
“The court: What were the circumstances? Domestic
violence? Random robbery?
“Prospective Juror No. 4247: Random.
“The court: How would that affect you? Can you still be
fair?

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“Prospective Juror No. 4247: Yes.
“The court: How long ago was that?
“Prospective Juror No. 4247: [2004].
“The court: Did they catch the killer?
“Prospective Juror No. 4247: Yes.
“The court: Did you go to court at all?
“Prospective Juror No. 4247: Yes.
“The court: Do you feel like the system worked in that
case?
“Prospective Juror No. 4247: Yes.
“The court: Okay. Any other ‘yes’ answers?
“Prospective Juror No. 4247: [13].
“The court: Go ahead.
“Prospective Juror No. 4247: I was arrested for a D.U.I.
back in 2009.
“The court: Do you feel like you were treated fairly?
“Prospective Juror No. 4247: Yes.
“The court: Anything about that that would affect you
here?
“Prospective Juror No. 4247: No. And no more yeses.
“The court: Thank you very much, Juror 12.”
The prosecutor’s subsequent voir dire with Juror 4247 went
as follows:
“[The prosecutor]: . . . I just want to know if I ask you in
four weeks to convict the person and you believe I
have proven my case under the law, would you
convict the person?
“[¶] . . . [¶]
“[The prosecutor]: How about Juror No. 12, sir?
“Prospective Juror No. 4247: Yes.

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“[The prosecutor]: Would you have any problem with that
at all?
“Prospective Juror No. 4247: No.
“[The prosecutor]: Okay. The fact that she’s a lady, she
looks relatively young, if I prove my case, would that
be a problem for you?
“Prospective Juror No. 4247: No.
“[¶] . . . [¶]
“[The prosecutor:] Also, on that same line of questioning,
is anyone going to have a problem -- are they going to
not be able to get punishment out of their head
because you say to yourself, ‘Okay. If the prosecutor
proves his case, what’s going to happen to the
person?’ Would that be a problem for you, number --
let’s go to No. 12, sir? Is that ‘ yes’?
“Prospective Juror No. 4247: No. Wouldn’t be a problem.”
“[¶] . . . [¶]
“[The prosecutor]: Okay. . . . Do you have any strong
feelings about the criminal justice system?
“[¶] . . . [¶]
“[The prosecutor]: . . . How about No. 12, sir. Any feelings
on it to [sic]?
“Prospective Juror No. 4247: Say it’s about 50/50.
Somewhere -- some get justified, some don’t.
“[The prosecutor]: When you say, ‘some,’ are we talking
about police officers or the system itself?
“Prospective Juror No. 4247: Just the system itself.
“[The prosecutor]: Can you be a little more specific so I
understand what you mean?

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“Prospective Juror No. 4247: There are some cases that --
that the evidence is presented and the jurors side
with that evidence, and it might not necessarily be
what actually happened--
“[The prosecutor]: Okay.
“Prospective Juror No. 4247: -- But the . . . prosecutor
proved their case; so that’s why they went that way.
“[The prosecutor]: You’re saying there’s evidence the jury
may not have seen?
“Prospective Juror No. 4247: Not haven’t seen but just -- I
don’t -- led to believe another thing.
“[The prosecutor]: Like the prosecution might skew the
evidence in a certain way or not?
“Prospective Juror No. 4247: Not skew it, just present it in
a way where it works for their case.
“[The prosecutor]: Okay. And do you feel that sometimes
the person being charged, is that unfair for them?
“Prospective Juror No. 4247: Sometimes, yes.
“[The prosecutor]: You do feel that. Okay. Have you seen
that happen directly or is that just --
“Prospective Juror No. 4247: No. Probably not directly.
“[The prosecutor]: But you do believe it does happen?
“Prospective Juror No. 4247: Yes.
“[The prosecutor]: You feel that the prosecution is doing
that wrongfully?
“Prospective Juror No. 4247: Not wrongfully. They have --
that’s their case to prove.
“[The prosecutor]: Okay. And why are they -- they’re just
presenting it in a certain way that’s, like, favorable
for them?

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21
“Prospective Juror No. 4247: Yes.
“[The prosecutor]: Okay. And you think that sometimes it
hurts the defendant?
“Prospective Juror No. 4247: Sometimes, yes.
“[The prosecutor]: Sometimes.
“Prospective Juror No. 4247: And then other instances vice
versa.
“[The prosecutor]: Meaning that the defense puts evidence
or --
“Prospective Juror No. 4247: Yeah. That somebody that
might have been guilty have the evidence prove that
they weren’t when they might have been.
“[The prosecutor]: So you do feel that sometimes people are
wrongfully convicted, vice versa --
“Prospective Juror No. 4247: Yes.
“[The prosecutor]: And sometimes guilty people are let go;
so there are problems in terms of that part of it at
least.
“Prospective Juror No. 4247: Yes.”
The following afternoon, the prosecutor exercised his sixth
challenge to excuse Juror 4247, and appellant made her third
Wheeler motion. Appellant’s counsel represented that Juror 4247
was a young African-American man. The court, noting five of the
prosecutor’s six challenges were to “people of color,” found
appellant had made a prima facie showing. The court asked the
prosecutor to proffer race-neutral justifications.
The prosecutor provided the following reasons:
“That juror stated several things. First of all, I spoke to
him about the criminal justice system and he said that he does
see flaws in it. He believes that innocent people get convicted,

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and also believes that guilty people go free. This could impact his
ability to determine whether [the defendant] is guilty or not
guilty in this case. If he thinks something is fair, he might
attempt to protect someone in this matter by protecting her and
determine the evidence contrary to what it may actually show
based on his belief that innocent people are convicted. When he
was asked about, I guess a friend was called [sic], and [defense
counsel] or the judge asked, did the system work; he said: in that
case, yes. Which, to me implies that he believes that it doesn’t
work in other cases. I also believe that this was him. And if I’m
incorrect, I apologize, but he indicated that wealthy defendants
had better outcomes. I think he was the one that said that
sometimes people who have more money . . . may profit more
from the system and he might proceed. Anyone also who is not
wealthy, he didn’t say that. Then I can recall because my first
position was there.
“I’d also like to make the comparison to the lady currently
seated, seat number eight, who appears to be African-American.
I have no intention of kicking her from this panel. And her
statements regarding the criminal justice system were simple.
She stated, ‘I believe it’s fair.’ She didn’t stress that innocent
people are convicted wrongly, or guilty people are let free. [¶] So
based on those reasons, that’s why he was dismissed.”
Defense counsel responded, “I just would like to bring up
that he is a young black male. So he falls, I believe, within two
protected class characteristics. [¶] And submitted.”
The court then denied the Wheeler motion, stating, “I don’t
think it was this juror who spoke of the disparity . . . in criminal
justice between rich and poor defendants; but the other proffered
reasons I do find to be race-neutral, it’s respectfully denied.”

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b. Analysis.
The court having found a prima facie basis for this Wheeler
motion, the prosecutor assumed the burden to provide “ ‘a “clear
and reasonably specific” explanation of his “legitimate reasons”
for exercising the challenges.’ [Citation.].” (Gutierrez, supra,
2 Cal.5th at p. 1158.) This second step of the framework “ ‘does
not demand an explanation that is persuasive, or even plausible.
“. . . [T]he issue is the facial validity of the prosecutor’s
explanation.” ’ ” (Id. at p. 1168.) “ ‘ “[U]nless a discriminatory
intent is inherent in the prosecutor’s explanation,” ’ the reason
will be deemed neutral.” (Id. at p. 1158.)
Thereafter, “the trial court must decide whether the
movant has proven purposeful discrimination” and the movant
must show it was “ ‘ “more likely than not that the challenge was
improperly motivated.” ’ ” (Gutierrez, supra, 2 Cal.5th at
p. 1158.) “To satisfy herself that an explanation is genuine, the
presiding judge must make ‘a sincere and reasoned attempt’ to
evaluate the prosecutor’s justification, with consideration of the
circumstances of the case known at that time, her knowledge of
trial techniques, and her observations of the prosecutor’s
examination of panelists and exercise of for-cause and
peremptory challenges.” (Id. at p. 1159.)
“ ‘We review a trial court’s determination regarding the
sufficiency of a prosecutor’s justifications for exercising
peremptory challenges “ ‘with great restraint.’ ” [Citation.] We
presume that a prosecutor uses peremptory challenges in a
constitutional manner and give great deference to the trial court’s
ability to distinguish bona fide reasons from sham excuses.
[Citation.] So long as the trial court makes a sincere and
reasoned effort to evaluate the nondiscriminatory justifications

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offered, its conclusions are entitled to deference on appeal.
[Citation.]’ [Citation.].” (Winbush, supra, 2 Cal.5th at p. 434; see
Gutierrez, supra, 2 Cal.5th at p. 1159.)
In explaining the basis for his peremptory challenge to
Juror 4247, the prosecutor attributed three different statements
or sentiments to Juror 4247 from voir dire the previous day:
(1) Juror 4247 saw flaws in the criminal justice system, and
believed innocent people are convicted and guilty people go free;
(2) when asked if the system worked in the court case about his
friend, Juror 4247 said, “in that case, yes,” leading the prosecutor
to infer that Juror 4247 did not believe the system worked in
other cases; and (3) Juror 4247 indicated wealthy defendants had
better outcomes in the system. The prosecutor acknowledged he
might have been incorrect that Juror 4247 made the statement
about wealthy defendants.
The trial court addressed the third stated justification first,
correctly noting that Juror 4247 was not the juror who spoke of
the disparity in outcomes in the criminal justice system for
wealthy versus poor defendants.7 The court found the two other
proffered reasons “to be race-neutral” and denied the Wheeler
motion.8
7 The juror who made the statements about differing
outcomes for rich and poor defendants was Juror 3345, who also
stated he could not be fair and impartial and was dismissed by
stipulation of the parties.
8 We conclude the trial court’s ruling included an implied
finding that the prosecutor’s asserted justifications were genuine.
(See People v. Jones (2011) 51 Cal.4th 346 360, italics added
(Jones) [affirming denial of Wheeler motion where “[t]he trial
court denied defendant’s motion, implicitly finding the

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As to the second statement which the prosecutor attributed
to Juror 4247, appellant correctly points out that Juror 4247 did
not himself use the words “in that case” when discussing the trial
regarding his friend. The record on voir dire indicates that
during the discussion of the trial on his friend’s murder, the court
asked, “Do you feel like the system worked in that case?” Juror
4247 answered, “yes.”9 (Italics added.)
prosecutor’s explanation credible and expressly finding his
reasons to be race neutral”]; Reynoso, supra, 31 Cal.4th at p. 926
[deferring to the trial court’s “implied finding” that prosecutor’s
reasons for excusing juror were sincere and genuine].)
9 What is missing from the cold written record, of course, is
the manner in which the court asked the question, “Do you feel
like the system worked in that case?” and the manner in which
Juror 4247 responded “yes.” We do not know what, if any,
emphasis the court placed on the words “in that case,” and when
Juror 4247 responded, we do not know if he hesitated, or if by his
tone or body language he may have communicated that although
he believed the system worked in that case, he did not believe it
always worked. Such nonverbal forms of communication would
have been detectable by the trial court, the prosecutor, and the
defense attorney, but are not able to be discerned on appeal.
(People v. O’Malley (2016) 62 Cal.4th 944, 980 (O’Malley) [“ ‘ “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.” ’ [Citation.]”].) Defense
counsel failed to identify the issue of who used the phrase, “in
that case,” suggesting that the prosecutor may have fairly
inferred that Juror 4247 implied by the way he answered that he
did not think the system worked in every case.

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26
Appellant argues that the prosecutor misstated the record
as to his second and third reasons, with the trial court only
acknowledging one of the mischaracterizations, and appellant
further argues that the first stated reason -- appellant’s belief
that the criminal justice system was flawed and allowed innocent
people to be convicted and guilty people to go free -- was
“suspect.” Appellant contends that the court was obligated to ask
follow-up questions of the prosecutor or to make more specific
findings about which reasons the court deemed genuine. Because
of these purported shortcomings in the trial court’s ruling,
appellant asserts that the trial court did not make a sincere and
reasoned effort to assess the credibility of the prosecutor’s stated
reasons, and thus no deference is due to the trial court’s
conclusion that the asserted justifications were genuine.
In support of his argument that reversal is required,
counsel for appellant relies on Gutierrez10 and People v. Silva
(2001) 25 Cal.4th 345 (Silva). However, for the reasons discussed
below, neither Gutierrez nor Silva supports appellant’s position
or requires reversal here. The record reflects that the trial court
made a sincere and reasoned attempt to evaluate whether the
prosecutor’s asserted justifications for excusing Juror 4247 were
genuine. Because the prosecutor’s overarching reason --
skepticism of the criminal justice system -- was supported by the
record, and it was a well-accepted, self-evident justification for
challenging a juror, it needed no further exploration or
explication by the court.
10 The Supreme Court decided Gutierrez after the instant
appeal was fully briefed, but the parties addressed the effect of
Gutierrez on this case at oral argument.

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(i) Gutierrez.
During voir dire in Gutierrez, the Hispanic prospective
juror in question (Juror 2723471) said she was unaware that
gangs were active in the Wasco area, which was where she
resided. (Gutierrez, supra, 2 Cal.5th at p. 1160.) The prosecutor
asked no follow-up questions of the juror. The prosecutor
subsequently exercised a peremptory challenge against her and,
when defense counsel made a Wheeler motion, the prosecutor
proffered the following reasons in response: “ ‘[s]he’s from Wasco
and she said that she’s not aware of any gang activity going on in
Wasco, and I was unsatisfied by some of her other answers as to
how she would respond when she hears that [Trevino, a
prosecution witness] is from a criminal street gang, a subset of
the Surenos out of Wasco.”11 (Ibid.) The prosecutor did not
specify which “other answers” concerned him, the People did not
identify any such responses on appeal, and the Supreme Court
noted it was unable to find any other such answers in the record.
(Ibid.)
In evaluating the prosecutor’s justification, the trial court
had remarked that the prosecutor passed on challenging this
juror several times. The court also noted that the juror “ ‘was
excused as a result of the Wasco issue and also lack of life
experience.’ ” (Gutierrez, supra, 2 Cal.5th at p. 1161.)
11 A few minutes earlier, the prosecutor had explained that he
struck another juror due to her unawareness of Wasco gang
activity, given that “Trevino freely admits that he’s a member of
the Varrio Wasco [gang].” (Gutierrez, supra, 2 Cal.5th at
p. 1161.)

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28
The People conceded on appeal that the prosecutor had not
enumerated lack of life experience as a reason for striking the
juror. (Gutierrez, supra, 2 Cal.5th at p. 1161.) The Supreme
Court found the prosecutor’s actual stated justification -- the
juror’s unawareness of gang activity -- was facially valid, but the
court took issue with the trial court’s failure to elucidate the
reasoning behind the challenge. Although it was possible to
speculate after the fact as to the prosecutor’s potential thought
process, the court emphasized that it was “far from self-evident”
why the challenged juror’s unawareness of gang activity would
cause the prosecutor concern as to her suitability to sit on the
jury. (Id. at p. 1171.)12
The Supreme Court took care to note that “[s]ome neutral
reasons for a challenge are sufficiently self-evident, if honestly
held, such that they require little additional explanation.”
(Gutierrez, supra, 2 Cal.5th at p. 1171.) An example is a panelist
excused because she was previously a victim of the same crime at
issue in the case to be tried. (Ibid.) “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
12 The court further noted that “[t]he prosecutor’s swift
termination of individual voir dire of this panelist . . . at least
raises a question as to how interested he was in meaningfully
examining whether her unawareness of gang activity in Wasco
might cause her to be biased . . . .” (Gutierrez, supra, 2 Cal.5th at
p. 1170.) Further, voir dire had revealed that the juror had
relatives in corrections and law enforcement positions, a
characteristic that the prosecutor had generally viewed as an
“offsetting force against characteristics he perceived as negative”
with respect to other panelists. (Ibid.)

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29
becomes more pressing.” (Ibid.) The court found that was
particularly so when a prosecutor has used a considerable
number of challenges to exclude a large proportion of members of
a cognizable group, such as in that case where, at the time of the
motion, 10 of the prosecutor’s 12 peremptory challenges had been
used against Hispanics. (Ibid.)
The Supreme Court faulted the trial court for “never
clarif[ying] why it accepted the Wasco reason as an honest one.”
(Gutierrez, supra, 2 Cal.5th at p. 1171.) The court noted the trial
court did not address the prosecutor’s reference to the juror’s
“other answers” that supposedly gave him pause, i.e., “other
answers” the existence of which was totally unsupported by the
record. And the trial court had improperly stated that the
prosecutor relied on the jurors’ lack of life experience. The court
thus held:
“On this record, we are unable to conclude that the trial
court made ‘a sincere and reasoned attempt to evaluate the
prosecutor’s explanation’ regarding the strike of Juror 2723471.
[Citation.] The court may have made a sincere attempt to assess
the Wasco rationale, but it never explained why it decided this
justification was not a pretext for a discriminatory purpose.
Because the prosecutor’s reason for this strike was not self-
evident and the record is void of any explication from the court,
we cannot find under these circumstances that the court made a
reasoned attempt to determine whether the justification was a
credible one.” (Id. at p. 1172.) The court thus found that the trial
court erred in denying the Wheeler motion and that reversal was
required. (Ibid.)
Gutierrez thus particularly addressed the responsibility of
the trial court when a prosecutor provides a justification for

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30
striking a prospective juror that is facially race-neutral, but the
prosecutor does not elaborate and it is not self-evident from the
stated reason why the prosecutor would harbor a concern about
the juror. In that scenario, Gutierrez instructs that trial courts
must probe the proffered reason further, and the failure to do so
precludes a finding that the trial court has made a reasoned
effort to analyze the credibility of the prosecutor’s stated
justifications. (Gutierrez, supra, 2 Cal.5th at p. 1172.)
The instant case is distinguishable from Gutierrez in that
the prosecutor articulated a well-accepted, self-evident basis for
his challenge: Juror 4247’s professed skepticism about the
criminal justice system. Courts have recognized that
“[p]rosecutors are understandably concerned about retaining . . .
on criminal juries” jurors who have evinced “skepticism about the
fairness of the criminal justice system.” (Calvin, supra,
159 Cal.App.4th at p. 1386; see Winbush, supra, 2 Cal.5th at
p. 439, quoting People v. Clark (2011) 52 Cal.4th 856, 907
[“ ‘A prospective juror’s distrust of the criminal justice system is a
race-neutral basis for excusal.’ ”]; People v. Hamilton (2009)
45 Cal.4th 863, 901-902 [juror’s skepticism regarding fairness of
treatment of minorities within criminal justice system was
nondiscriminatory basis for peremptory challenge].)
Further, this justification was supported by the record.
When asked about his feelings about the criminal justice system,
Juror 4247 stated that “it’s about 50/50 . . . some get justified,
some don’t,” then clarified that by “some” he was talking about
the “system,” then further clarified his belief that sometimes
innocent people are wrongfully convicted and sometimes guilty
people are let go. Juror 4247 thus explicitly verbalized his
distrust of the justice system, expressing a lack of confidence that

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31
the right people ended up being convicted, and the prosecutor
fairly described the sentiments expressed by this juror.
From this statement by the prosecutor, the trial court had
sufficient information to evaluate whether the reason was
genuine. Because the prosecutor provided a neutral reason that
was supported by the record and was “sufficiently self-evident, if
honestly held, that [it] require[d] little additional explanation,”
the trial court was not required to probe the reason any further
or to make additional statements on the record explaining
precisely why the court accepted the prosecutor’s reason as
credible. (Gutierrez, supra, 2 Cal.5th at p. 1171.)
Moreover, in this case, the prosecutor did explain to the
court the concern underlying his challenge on the basis of the
juror’s skepticism about the criminal justice system -- namely,
that this juror’s mindset could affect his ability to properly
determine appellant’s guilt, as he might attempt to protect
appellant based on his belief that innocent people are convicted,
even if the evidence demonstrated appellant’s guilt. Given the
clear way the prosecutor spelled out his concerns, there was even
less of a need for the trial court to explore the basis for the
prosecutor’s stated reason. Accordingly, we find the trial court’s
findings were comfortably within the parameters articulated in
Gutierrez.
(ii) Silva.
Nor do we agree with appellant that Silva compels a
finding that the trial court failed to make a sincere and reasoned
effort to evaluate the prosecutor’s motives because the court
overlooked the prosecutor’s mistaken reference to the record in
providing his second justification. In Silva, the prosecutor had
provided two justifications for exercising a peremptory challenge

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against a Hispanic juror: (1) the juror stated during voir dire
that “ ‘he would look for other options’ ” when asked if he could
vote for the death penalty; and (2) the prosecutor felt the juror
was “ ‘an extremely aggressive person’ ” and might cause the
jury to deadlock. (Silva, supra, 25 Cal.4th at p. 376.) However,
the Supreme Court found that neither of these asserted reasons
was supported by the record of voir dire. (Id. at p. 385.) The
Supreme Court concluded that “when the prosecutor gave
reasons that misrepresented the record of voir dire, the trial
court erred in failing to point out inconsistencies and to ask
probing questions. ‘The trial court has a duty to determine the
credibility of the prosecutor’s proffered explanations’ [citation],
and it should be suspicious when presented with reasons that
are unsupported or otherwise implausible.” (Ibid.)
The court held: “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]. We find nothing in the trial court’s
remarks indicating it was aware of, or attached any significance
to, the obvious gap between the prosecutor’s claimed reasons for
exercising a peremptory challenge against [the juror] and the
facts as disclosed by the transcripts of [the juror’s] voir dire
responses. On this record, we are unable to conclude that the
trial court met its obligations to make ‘a sincere and reasoned
attempt to evaluate the prosecutor’s explanation’ [citation] and
to clearly express its findings [citation].” (Silva, supra,
25 Cal.4th at p. 385, italics added.)

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The court further held: “Although we generally ‘accord
great deference to the trial court’s ruling that a particular reason
is genuine,’ we do so only when the trial court has made a sincere
and reasoned attempt to evaluate each stated reason as applied to
each challenged juror. [Citations.] 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. But when the prosecutor’s stated reasons are
either unsupported by the record, inherently implausible, or both,
more is required of the trial court than a global finding that the
reasons appear sufficient. As to [the juror in question], both of
the prosecutor’s stated reasons were factually unsupported by the
record.” (Silva, supra, 25 Cal.4th at pp. 385-386, italics added.)
Because the trial court’s ultimate finding that the prosecutor had
provided a credible race-neutral justification was unsupported,
the court found that the trial court had not made a sincere and
reasoned effort to evaluate the prosecutor’s stated reasons for
challenging the juror. (Id. at p. 385.)
Silva is easily distinguished in two ways. First, neither of
the reasons stated by the prosecutor in Silva was supported by
the record, and thus it could be fairly inferred that the
prosecutor’s true motivation might well have been race-based.
Thus, the trial court’s global acceptance of the stated reasons as
sufficient and credible, without further probing, was troubling.
By contrast, as discussed above, the prosecutor in the instant
case gave another justification that was well supported in the
record and well accepted as a reason to strike a juror. Second,
whereas in Silva there was an “obvious gap” between the
prosecutor’s representation of the juror’s statements and the voir
dire record itself, in the present case the mischaracterization was

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34
much more subtle and much more easily attributable to an
honest mistake on the part of the prosecutor. The fact that it was
the court which asked if the system worked “in that case,” and
not Juror 4247 who spoke those words, is not a mistake of great
magnitude in this particular context.
Critically, all three of the prosecutor’s proffered reasons for
excusing Juror 4247 were iterations of the same general concern:
that the juror did not trust the criminal justice system. Even if
the trial court failed to detect that Juror 4247 did not state that
the system worked “in the case” of his friend’s murder, and
therefore cannot fairly be found to have implied at that point that
the system did not work in other cases, this juror subsequently
made perfectly clear during the prosecutor’s questioning that he
in fact did believe that often the system does not work.
We do not believe that Silva’s holding that the trial court
must make a “sincere and reasoned attempt to evaluate each
stated reason” given by the prosecutor requires rote reversal of a
conviction whenever a trial court has overlooked a misstatement
of the voir dire record by the prosecutor. (Silva, supra, 25 Cal.4th
at pp. 385-386, italics added.) In cases like this one, trial courts
may fail to discuss a mistake by the prosecutor and yet there still
can be a sufficient basis to find that the court did make a sincere
and reasoned effort. We do not equate “sincere and reasoned”
with “perfect.”
(iii) Jones.
In Gutierrez, the court cited with approval Jones, supra,
which distinguished Silva on a record similar to the one here.
In Jones, the defendant was African-American and the murder
victims were Caucasian. (Jones, supra, 51 Cal.4th at p. 357.)
In selecting the jury, the prosecutor exercised two peremptory

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35
challenges against African-American prospective jurors, leaving
one African-American on the panel, at which point the defense
attorney made a Wheeler motion.
To explain his challenge to one of the challenged African-
American jurors, N.C., the prosecutor told the court that he was
concerned about the juror’s answer on the questionnaire about
whether he or anyone close to him had been accused of a crime.
The prosecutor erroneously represented that N.C. had written
that his son was accused of attempted murder or murder, when
in fact N.C. had not specified the crime on his questionnaire. The
prosecutor explained that he was concerned that the juror might
want to help the defendant, based on his son’s situation and
based on the juror’s body language and long pause before
answering whether he would want to help the defendant. (Jones,
supra, 51 Cal.4th at p. 358.)
The court asked, “ ‘So your primary concern there is
because a family member had been charged with a serious
offense?’ ” The “prosecutor responded that the ‘conjunction’ of
these factors ‘pushed [N.C.] over on the scale.’ ” (Jones, supra,
51 Cal.4th at p. 358.) The trial court then invited defense counsel
to respond, which counsel declined to do, and the trial court,
without specifically discussing the reasons asserted, generally
found that the prosecutor had dismissed N.C. for race-neutral
reasons. (Id. at p. 359.)
On appeal, the defendant argued that the prosecutor had
misstated N.C.’s answer to the question about his son having
been accused of a crime. The Supreme Court concluded that
although the prosecutor’s misstatement was “relevant, this
circumstance is not dispositive.” (Jones, supra, 51 Cal.4th at
p. 366.) The court held: “No reason appears to assume the

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prosecutor intentionally misstated the matter. He might have
based what he thought on information he obtained outside the
record. Or he may simply have misremembered the record. The
prosecutor had to keep track of dozens of prospective jurors,
thousands of pages of jury questionnaires, and several days of
jury voir dire, and then he had to make his challenges in the heat
of trial. He did not have the luxury of being able to [double-
check] all the facts that appellate attorneys and reviewing courts
have. Under the circumstances, it is quite plausible that he
simply made an honest mistake of fact. Such a mistake would
not show racial bias, especially given that an accurate statement
(that N.C. wrote that his son had been accused of, and tried for, a
crime but left the rest of the answer blank) would also have
provided a race-neutral reason for the challenge.
“The purpose of a hearing on a Wheeler/Batson motion is
not to test the prosecutor’s memory but to determine whether the
reasons given are genuine and race neutral. ‘Faulty memory,
clerical errors, and similar conditions that might engender a
“mistake” of the type the prosecutor proffered to explain his
peremptory challenge are not necessarily associated with
impermissible reliance on presumed group bias.’ [Citation.]
This ‘isolated mistake or misstatement’ [citation] does not alone
compel the conclusion that this reason was not sincere.” (Jones,
supra, 51 Cal.4th at p. 366.)
The court specifically distinguished Silva: “Relying largely
on [Silva], defendant argues that we should not defer to the trial
court’s ruling because, after hearing from the prosecutor, it
simply denied the motion without further discussion, which,
defendant contends, shows that it did not make a sincere and
reasoned attempt to evaluate the prosecutor’s credibility. We

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37
disagree. . . . [T]he ‘court denied the motions only after observing
the relevant voir dire and listening to the prosecutor’s reasons
supporting each strike and to any defense argument supporting
the motions. Nothing in the record suggests that the trial court
either was unaware of its duty to evaluate the credibility of the
prosecutor’s reasons or that it failed to fulfill that duty.’ Here,
the court asked the prosecutor one question during his
explanation. Additionally, it invited defense counsel to comment
on the prosecutor’s explanation. Defense counsel declined to
comment, thus suggesting he found the prosecutor credible.
Under the circumstances, the court was not required to do more
than what it did.” (Jones, supra, 51 Cal.4th at p. 361.)
Jones reinforces our conclusion that Silva does not require
reversal anytime a trial court fails to acknowledge a prosecutor’s
mistake in presenting his or her justifications for a peremptory
challenge. Just as the Supreme Court found in Jones that the
trial court had sufficiently analyzed the prosecutor’s reasons by
asking one question and then providing a global ruling on the
Wheeler motion, in the instant case, the trial court demonstrated
that it was conducting the requisite “sincere and reasoned”
analysis by noting that the prosecutor had misidentified Juror
4247 as the juror who made the comment about wealthy
defendants, and otherwise finding the given reasons to be race-
neutral. Despite the trial court’s failure to acknowledge that one
of the prosecutor’s examples evidencing this juror’s distrust of the
criminal justice system was not supported by the record, there is
no reason to reject the court’s determination that the prosecutor
was credible in asserting this self-evident reason, which was
supported by other statements by the juror during voir dire. (See
O’Malley, supra, 62 Cal.4th at pp. 979-980 [prosecutor’s

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38
“mistaken recollection” about a prospective juror’s statements on
his questionnaire and at voir dire does not establish that
prosecutor was acting with a discriminatory purpose . . . . “Even
if the prosecutor’s concern about the [mistaken reason],
considered in isolation, might not provide a compelling reason for
a peremptory challenge, the prosecutor’s mistaken reference . . .
alone does not establish that the prosecutor’s stated reasons were
pretexts for discrimination.”]; People v. Alvarez (1996) 14 Cal.4th
155, 194, 198 [where prosecution relied on justification with no
basis in record -- that prospective juror said she preferred life
imprisonment to death penalty -- denial of Batson motion upheld
where prosecutor also expressed justification that juror displayed
confusion on voir dire; lack of support for one reason “does not
undermine the ‘genuineness’ -- or the sufficiency -- of the other
‘neutral explanations’ ”].)
Rather, we defer to the trial court’s assessment that the
juror’s distrust of the criminal justice system, and not Juror
4247’s status as an African-American, was the prosecutor’s
genuine reason for excusing him.13 We thus uphold the trial
court’s denial of appellant’s third Wheeler motion.
13 The dissent includes a limited comparative analysis of
Juror No. 4247 and empaneled Caucasian Juror No. 3049, and
also compares the prosecutor’s questioning of Juror No. 4247 with
that of other Caucasian jurors to suggest that the prosecutor was
singling out Juror No. 4247 on account of his race by inquiring
about his views on the criminal justice system. However, neither
at trial nor on appeal did appellant identify these jurors as being
comparable to Juror 4247 and appellant has not alleged that the
prosecutor questioned Juror No. 4247 differently than the
Caucasian jurors. As appellant’s counsel conceded at oral
argument, “[a]lthough we must consider comparative juror

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3. Appellant’s Fourth Wheeler Motion (Juror 3794: a
Hispanic woman).
a. Pertinent Facts.
Juror 3794 (Juror 6), a full-time nursing student, was
single without children and lacked jury experience. During voir
dire, the court asked her if she had experienced “[p]ositive or
negative law enforcement contact[.]” She replied, “Both.” She
also stated, “[m]y family member[s] are gang members in L.A.”
and the family members were “[v]ery close, but they’re
incarcerated; so not that close.”
analysis evidence raised for the first time on appeal [citation], our
focus is limited to the responses of stricken panelists and seated
jurors that have been identified by defendant in his claim of
disparate treatment.” (People v. Lomax (2010) 49 Cal.4th 530,
572, italics added; see Lenix, supra, 44 Cal.4th at p. 624
[comparative analyses conducted by appellate court are
“necessarily circumscribed” by the defendant’s identification on
appeal of particular panelists or seated jurors].) In any event,
comparisons with unchallenged Caucasian jurors are probative
only if those jurors were “materially similar in the respects
significant to the prosecutor’s stated basis for the challenge” to
Juror No. 4247. (People v. DeHoyos (2013) 57 Cal.4th 79, 107.)
The dissent notes that Juror No. 3049 stated it would be “hard”
for him to decide appellant’s fate without actually seeing what
happened. Juror No. 3049 further stated he “would be able to do
it if [the prosecutor] proved [his] case,” but stated that it was
“possible” he would “hold [the prosecutor] to that little bit extra
something just because of the nature of the charge.” This juror’s
discomfort with deciding appellant’s fate on a murder charge is a
wholly different issue from Juror 4247’s distrust of the criminal
justice system. Accordingly, a comparative analysis between
these two jurors is not probative.

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40
In response to later questions, Juror 3794 stated she had
family members who had experienced negative contacts with law
enforcement, but she personally had not had negative contacts.
She denied she would have a problem convicting appellant, even
if it meant she would serve a lengthy sentence. Juror 3794
opined that some police officers actually help people, while
“unfortunately some are hurting,” but she was “not siding with
either.” The prosecutor asked Juror 3794, “Do you feel that the
criminal justice system in its current form is still the best we
could have?” Juror 3794 replied, “I don’t know,” and then “[n]ot
sure.”
After the court denied appellant’s third Wheeler motion, the
prosecutor challenged three jurors, then accepted the panel as
constituted, and subsequently challenged Juror 3794. Appellant
then made her fourth Wheeler motion. The court noted Juror
3794 was a Hispanic woman and the prosecutor previously had
accepted the panel with her on it. Finding a prima facie case, the
court requested the prosecutor’s reasons for the challenge.
The prosecutor noted that he had indeed accepted the panel
with Juror 3794 on it. The prosecutor stated his concern that
Juror 3794 had limited life experiences, in that she was still a
student, she looked quite young, and she had no family or
children. He stated he would prefer a juror “who has more life
experience to be able to sort out the tangled situations in this
case. There is going to be multiple conflicting testimony versus
statements . . . that the juror is going to hear of the defendant[,]
possibly up to three different interviews which contradict
everything that some of the other witnesses are going to say. So I
think it’s important for her to have life experience.”

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41
Additionally, the prosecutor noted that Juror 3794
indicated her family members were gang members in Los
Angeles, and “her [viewpoints] and upbringing may be skewed by
that fact.” Further, the fact that her family members were gang
members could intimidate jurors who later might disagree with
her. Further still, the prosecutor noted Juror 3794 maintained
contact with these gang members, “who likely do not possess
positive opinions of police, and she also never disapproved of
their choices or lifestyle.”
The court denied the Wheeler motion, concluding, “I do find
it to be race neutral given the consideration of her family member
ties to gang members.”
b. Analysis.
As the trial court noted, the prosecutor earlier had accepted
the panel with Juror 3794 on it, and only exercised the challenge
to her after defense counsel exercised his own challenge. The fact
that the prosecutor had accepted Juror 3794 “ ‘ “strongly
suggest[s] that race was not a motive” ’ ” behind the challenge.
(Gutierrez, supra, 2 Cal.5th at p. 1170, see People v. Williams
(2013) 56 Cal.4th 630, 659.)14 However, this circumstance does
14 Appellant asserts, “Though the prosecutor initially
accepted the panel with Juror 3794 . . . on it . . . , [the prosecutor]
did so when the juror who would have replaced her was a man
from Uruguay, Juror 8333.” Appellant thereby suggests the
prosecutor kept Juror 3794 on the panel because if he had
challenged her, she would have been replaced by Juror 8333, a
person the prosecutor would not have wanted as a juror because
he was Hispanic. Additional facts cast a different light on the
matter. On July 13, 2015, the prosecutor accepted the panel with
Juror 3794 on it. Earlier, on July 8, 2015, Juror 8333 stated
during voir dire that his father was a police officer in Uruguay,

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42
not “wholly preclude” a finding that the challenge was based on
improper bias (Gutierrez, at p. 1170); thus, we still must examine
whether the trial court made a sincere and reasoned effort to
determine whether the prosecutor’s asserted justifications for
challenging Juror 3794 were genuine. We conclude it did.
The prosecutor provided clear and specific justifications for
his challenge, including that the juror had close family ties with
gang members in Los Angeles, which the prosecutor explained
may well have skewed the juror’s viewpoints, including her
perception of the police. (See Lenix, supra, 44 Cal.4th at
pp. 628-630 [trial court properly may deny a Wheeler motion
where the prosecutor challenged a juror on the ground the juror’s
family had gang associations].) The trial court accepted the
prosecutor’s thorough explanation as genuine, and we defer to its
assessment of the prosecutor’s credibility as to this neutral
explanation. Thus, we affirm the denial of the fourth Wheeler
motion.
4. Appellant’s Fifth Wheeler Motion (Juror 7830: a
Hispanic man).
a. Pertinent Facts.
Juror 7830 (juror 3) was single, had a daughter, worked in
retail, and lacked jury experience. Within the past few years he
his father-in-law was a police chief, he knew a few sheriff’s
deputies here, and he regularly attended church with a Los
Angeles police officer. A juror’s ties to law enforcement are
characteristics normally considered favorable to the prosecution.
(People v. Chism (2014) 58 Cal.4th 1266, 1321.) We note
appellant, not the prosecutor, ultimately challenged Juror 8333.

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43
had a driving under the influence case in Santa Clarita court; he
believed the case was handled fairly.
According to Juror 7830, a friend had been shot when he
was nearby. Juror 7830 believed it was a gang-related shooting.
Juror 7830 appeared to give conflicting answers on whether the
shooting would affect him as a juror.
Juror 7830 also stated, “I myself have been shot, I guess,
accidental shooting, you could call it. I knew the person. And
that’s pretty much it.” The court asked what the circumstances
were, and Juror 7830 replied, “you really don’t have a clear head
when it happens, but from what I remember, it was someone
playing with a gun and shot me.” Juror 7830 was 20 or 21 years
old when he was shot in the abdomen. Juror 7830 did not think
that experience would affect him as a juror.
During voir dire by the prosecutor, Juror 7830 further
explained that he was shot in 2002 or 2003, at close range, and he
thought the person wielding the gun “was just . . . being foolish.”
The prosecutor asked why the gun was out, and Juror 7830
replied, “they were playing with it. I had nothing to do with the
situation. I just came into the situation.” The people involved
were friends of Juror 7830 at the time but no longer. He had to
undergo surgery, and still had scars from his stomach to his
chest. The bullet was left in his body, because it was too close to
his spine to try to remove. Doctors had informed him that as a
result he might have stomach problems later in life.
The prosecutor told Juror 7830 that the present case
involved a firearm allegation and there would be photographs
showing gunshots. The prosecutor asked Juror 7830 if it would
be difficult for him to view these photographs, and he replied,

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44
“[t]hat could be difficult.” The prosecutor challenged Juror 7830,
leading to appellant’s fifth Wheeler motion.
Juror 7830 was a Hispanic man. The prosecutor observed
that at the time of the challenge, the jury box contained three
Hispanic men (including Juror 7830), two Hispanic women, an
African-American woman, and an Asian woman.
Tendering justifications, the prosecutor indicated that
Juror 7830 had been shot in the abdomen, still had a scar and a
bullet lodged in him, and had gone through a “fairly traumatic
experience.” The prosecutor would have to present graphic
photographs of people being shot, and he was concerned Juror
7830 might not want to view that evidence. The prosecutor
stated it was critical jurors be able to view such graphic evidence
because the prosecutor had to “prove cause of death.”
The prosecutor listed a number of other justifications as
well, including: (1) it was possible appellant would present a
defense of mistake, and Juror 7830 said he was “potentially
mistakenly shot”; (2) Juror 7830 had “numerous tattoos on his
arm”; (3) the prosecutor believed he showed poor judgment by
associating with people who ended up shooting him in the
abdomen; (4) Juror 7830 indicated a friend was the victim in a
gang shooting, also leading the prosecutor to question his
judgment; and (5) Juror 7830 looked young and worked in retail,
leading the prosecutor to conclude he was “probably devoid of a
lot of life experiences.”
The court stated, “Motion is respectfully denied. I do find
there is a race neutral reason. I do find it believable. [¶] As to
some of what you said with respect to the bad judgment, it
doesn’t sound like the shooting had anything to do with him. It
sounded completely accidental. The fact that he has tattoos, that

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45
is not on the record, but I do believe it’s race neutral. It’s
respectfully denied.”
b. Analysis.
The prosecutor provided detailed explanations for
numerous facially valid, race-neutral justifications for
challenging Juror 7830. We understand the court’s finding that
“there is a race neutral reason” that is “believable” to refer to the
multiple justifications asserted by the prosecutor. The court
demonstrated that it made a sincere and reasoned effort to parse
the explanations by noting its disagreement that the juror’s
accidental shooting suggested bad judgment on his part, and
noting that the fact that he had numerous tattoos was not in the
record.15 Thus, we have no basis for disturbing the trial court’s
findings on appeal.
The trial court properly denied appellant’s fifth Wheeler
motion.
15 It is inconsequential that the trial court was not persuaded
that the fact that Juror 7830 was accidentally shot reflected poor
judgment on his part; the key inquiry is whether the prosecutor’s
explanation was facially valid, which it was here, and genuine,
which the court determined it was. (See Gutierrez, supra,
2 Cal.5th at p. 1168.) Further, it is well settled that a trial court
properly may deny a Wheeler motion where the prosecutor
challenged a juror on the ground of the latter’s appearance, which
could include challenges based on tattoos. (Cf. People v. Ward
(2005) 36 Cal.4th 186, 202; Wheeler, supra, 22 Cal.3d at p. 275
[juror’s “clothes or hair length suggest an unconventional life-
style”].)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STONE, J.*
I concur:
EDMON, P. J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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1
LAVIN, J., Dissenting:
“Illegal and unconstitutional jury selection procedures cast
doubt on the integrity of the whole judicial process. They create
the appearance of bias in the decision of individual cases, and
they increase the risk of actual bias as well.” (Peters v. Kiff
(1972) 407 U.S. 493, 502–503.) In this case, defendant, who is
African-American, was charged with murder. During voir dire of
the jury panel, the prosecutor struck the only two African-
American men from the panel. When the prosecutor struck the
second African-American man, Prospective Juror No. 4247,
defendant brought her third Batson/Wheeler motion. After
noting that four of the five prospective jurors stricken by the
prosecutor were Black or Hispanic, the trial court found that
defendant made a prima facie showing raising an inference of
discriminatory purpose. In response, the prosecutor offered three
reasons for striking this prospective juror. But other than
suggesting that one of the prosecutor’s three stated reasons was
probably wrong, the court made no attempt to evaluate whether
the prosecutor’s explanation was bona fide before it denied
defendant’s motion. In fact, the record contradicts two of the
prosecutor’s three proffered race-neutral reasons for striking
Prospective Juror No. 4247, and a careful review of the record
casts doubt on the credibility of the prosecutor’s remaining
justification. The court did not discharge its obligations to
evaluate the prosecutor’s reasons for striking this juror and to
“clearly express its findings.” (People v. Silva (2001) 25 Cal.4th
345, 385 (Silva); accord People v. Gutierrez (2017) 2 Cal.5th 1150,

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2
1175 (Gutierrez).) Because the error is structural, I would
reverse the judgment.1
DISCUSSION
“When a party raises a claim that an opponent has
improperly discriminated in the exercise of peremptory
challenges, the court and counsel must follow a three-step
process. First, the Batson/Wheeler movant must demonstrate a
prima facie case by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose. … [¶]
Second, if the court finds the movant meets the threshold for
demonstrating a prima facie case, the burden shifts to the
opponent of the motion to give an adequate nondiscriminatory
explanation for the challenges.” (Gutierrez, supra, 2 Cal.5th at
p. 1158.)
Once the prosecutor establishes a race-neutral justification
for striking a prospective juror, the court must make a “ ‘sincere
and reasoned attempt’ ” to evaluate the credibility of the
prosecutor’s neutral explanation. (Gutierrez, supra, 2 Cal.5th at
p. 1159.) “This [third step] of the Batson/Wheeler inquiry focuses
on the subjective genuineness of the reason, not the objective
reasonableness.” (Id. at p. 1158.) “[W]hen it is not self-evident
why an advocate would harbor a concern [about a particular
juror], the question of whether a neutral explanation is genuine
and made in good faith becomes more pressing. That is
particularly so when, as here, an advocate uses a considerable
1 Although I do not address the other asserted Batson/Wheeler
errors in this case, I do not join either the majority’s analysis of or its
conclusions about those issues.

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3
number of challenges to exclude a large proportion of members of
a cognizable group.” (Id. at p. 1171; see Covey, The Unbearable
Lightness of Batson (2007) 66 Md. L.Rev. 279, 346–347 [“Because
there is no opportunity to take discovery, no ability to examine
the prosecutor directly, and no other way to substantiate a
discrimination claim except through reliance on the explanation
provided by the prosecutor, Batson will be ineffective unless its
step-two neutrality requirement is rigorously enforced.”].)
In this case, defendant raised her third Batson/Wheeler
objection in response to the prosecutor’s use of its sixth strike to
dismiss the second of two black men, Prospective Juror No. 4247.
After noting that four of the five prospective jurors stricken by
the prosecutor were Hispanic or African-American, the court held
that defendant made a prima facie showing that the totality of
the circumstances raised an inference of discriminatory purpose
in striking this prospective juror.
In response to the court’s prima facie determination as to
the dismissal of Prospective Juror No. 4247, the prosecutor
offered the following reasons for the strike: “First of all, I spoke to
him about the criminal justice system and he said that he does
see flaws in it. He believes that innocent people get convicted,
and also believes that guilty people go free. This could impact his
ability to determine whether [the defendant] is guilty or not
guilty in this case. If he thinks something is fair, he might
attempt to protect someone in this matter by protecting her and
determine the evidence contrary to what it may actually show
based on his belief that innocent people are convicted. When he
was asked about, I guess a friend was [killed] and [defense
counsel] or the judge asked, did the system work; he said: in that
case, yes. Which, to me implies that he believes that it doesn’t

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4
work in other cases.” The prosecutor also offered another reason:
the prospective juror had stated that wealthy defendants had
better outcomes than poor defendants.
Other than suggesting it did not believe that Prospective
Juror No. 4247 “spoke of the disparity” between “rich and poor
defendants,” the court did not state why—or if—it found the
prosecutor’s reasons to be honestly held before it denied
defendant’s Batson/Wheeler motion. This is the court’s complete
analysis: “Now, I did a prima facie case and that I’m just
examining the proffered race-neutral reasons by the People. And
I do find that they are race-neutral and Batson and Wheeler
would be denied. I don’t think it was this juror who spoke of the
disparity, but in criminal justice between rich and poor
defendants; but the other proffered reasons I do find to be race-
neutral, it’s respectfully denied.”
In my view, the court did not discharge its duty to “make ‘a
sincere and reasoned attempt’ to evaluate the prosecutor’s
justification” in this case. (Gutierrez, supra, 2 Cal.5th at p. 1159.)
“[A] truly ‘reasoned attempt’ to evaluate the prosecutor’s
explanations [citation] requires the court to … determine not only
that a valid reason existed but also that the reason actually
prompted the prosecutor’s exercise of the particular peremptory
challenge.” (People v. Fuentes (1991) 54 Cal.3d 707, 720
(Fuentes), emphasis added.) Other than suggesting that one of
the prosecutor’s three stated reasons for striking Prospective
Juror No. 4247 was probably wrong, the court did not perform
any analysis of the prosecutor’s purported reasons.
Put another way, the court did not actually conduct the
third step of the Batson/Wheeler analysis. Certainly, the court
did not explicitly find that the prosecutor’s reasons were non-

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5
pretextual; it only concluded the reasons were race-neutral, the
issue in step two. “For this reason [alone], the trial court did not
satisfy its Wheeler obligation of inquiry and evaluation, and the
judgment must therefore be reversed.” (Fuentes, supra, 54 Cal.3d
at p. 718.) Even if the court’s remarks could somehow be
construed as addressing the prosecutor’s credibility, however, its
review was plainly inadequate. (See maj. opn., pp. 24–25, fn. 8.)
Although reviewing courts generally accord great deference
to a trial court’s ruling that a particular reason is genuine, “we do
so only when the trial court has made a sincere and reasoned
attempt to evaluate each stated reason as applied to each
challenged juror.” (Silva, supra, 25 Cal.4th at pp. 385–386,
emphasis added.) While “an isolated mistake or misstatement
[by the prosecutor] that the trial court recognizes as such is
generally insufficient to demonstrate discriminatory intent,” the
California Supreme Court instructs that “it is another matter
altogether when … 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.” (Id. at
p. 385, emphasis added.)
Here, the court’s abbreviated analysis is particularly
striking because, as with the third reason advanced by the
prosecutor for dismissing this prospective juror, the second
reason—that the prospective juror said that the system had
worked in that case—is unsupported by the record of voir dire.
Instead, after the prospective juror revealed that his friend had
been the victim of a random murder, the court asked him, “Do
you feel like the system worked in that case?” The prospective
juror simply answered, “Yes.” Unlike with the erroneous wealth-
based rationale, however, the court did not address the

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6
discrepancy or probe the issue. (See Gutierrez, supra, 2 Cal.5th
at pp. 1171–1172 [“Another tendered basis for this strike … was
not borne out by the record—but the court did not reject this
reason or ask the prosecutor to explain further.”].)
As the court failed to probe the prosecutor’s
misrepresentation of the prospective juror’s response, the second
reason advanced by the prosecutor cannot serve as a valid basis
for upholding the strike. Nor is there any basis in the record to
support the majority’s view that “the mischaracterization was
much more subtle and much more easily attributable to an
honest mistake on the part of the prosecutor.” (Maj. opn., pp. 33–
34; see Fuentes, supra, 54 Cal.3d at p. 716, fn. 5
[“Notwithstanding the deference we give to a trial court’s
determinations of credibility and sincerity, we can only do so
when the court has clearly expressed its findings and rulings and
the bases therefor.”].)
This leads me to the prosecutor’s first reason for dismissing
Prospective Juror No. 4247—that he saw flaws in the criminal
justice system. Although the court never mentioned this reason,
and the other two rationales advanced by the prosecutor were not
supported by the record, the majority insists “that the trial court
made a sincere and reasoned attempt” to analyze all of the
prosecutor’s reasons. (Maj. opn., p. 26.) How? Apparently, by
noting that one of the prosecutor’s three reasons was probably
wrong and then providing a global ruling on defendant’s motion.
In any event, the majority ultimately concludes that the trial
court did not need to probe the prosecutor’s explanation because
one of the prospective juror’s responses provided a “self-evident
justification” for his dismissal. I disagree with the majority for
the following reasons.

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7
First, even a self-evident justification must be “honestly
held” (Gutierrez, supra, 2 Cal.5th at p. 1171)—and the court
below simply failed to evaluate the prosecutor’s sincerity.2 While
the majority goes to great lengths to explain why it would have
been reasonable for the court to conclude the prosecutor’s
justification was genuine, the fact remains that the court did not
reach that conclusion. The majority cannot square this
circle—and does not try. (See, e.g., Maj. opn., pp. 24 [“The court
found the two other proffered reasons ‘to be race-neutral’ and
denied the Wheeler motion”], 26 [“Because the prosecutor’s
overarching reason … was supported by the record, and it was a
well-accepted, self-evident justification for challenging a juror, it
needed no further exploration or explication by the court.”].)
Instead, the majority struggles to defer to a holding that does not
exist. (Id., p. 38 [“we defer to the trial court’s assessment that
[the proffered explanation] was the prosecutor’s genuine reason
for excusing [the juror].”].)
Second, the majority erroneously defers to the court’s
purported assessment of the prosecutor’s justification by
suggesting that the prosecutor or the court took the prospective
juror’s demeanor into account. (Maj. opn., p. 25, fn. 9.) Of course,
when assessing the viability of neutral reasons advanced to
justify a peremptory challenge by a prosecutor, “both a trial court
and reviewing court must examine only those reasons actually
expressed.” (Gutierrez, supra, 2 Cal.5th at p. 1167, emphasis
added.) Given the lack of any evidence or discussion of the
2 To reiterate, the court held the prosecutor’s reasons were race
neutral, the issue in step two. The court offered no opinion on whether
they were genuine, the issue in step three.

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8
prospective juror’s demeanor, the majority’s suggestion is based
on pure speculation. (See, e.g., Snyder v. Louisiana (2008) 552
U.S. 472, 485 [proffered reason for striking black prospective
juror—nervousness during voir dire—was pretextual given
“absence of anything in the record showing that the trial judge
credited the claim that [the prospective juror] was nervous”].) On
this record, deference is not warranted.
Third, when considering all of the relevant circumstances,3
including the fact that the prosecutor accepted Prospective Juror
No. 3049, a white man, despite his views about the case and the
prosecution’s burden of proof, the prosecutor’s first reason for
striking Prospective Juror No. 4247 is not credible. (See Foster v.
Chatman (2016) 136 S.Ct. 1737, 1754 [evidence that prosecutor’s
reasons for striking a black prospective juror apply equally to an
otherwise similar nonblack prospective juror who is allowed to
serve tends to suggest purposeful discrimination].) When asked
if he would have trouble convicting defendant, a young woman,
even if the prosecutor proved his case, Juror No. 3049 replied,
“It’s going to be hard either way. … It’s not easy to decide
somebody’s fate either way. How actually being there without
actually seeing what happened.” And when Juror No. 3049 twice
suggested he might hold the prosecution to a higher burden than
3 At the final stage of Batson/Wheeler analysis, courts must
consider “all relevant circumstances” in determining whether a strike
was improperly motivated, which requires a careful “review of the
entire record.” (People v. Lenix (2008) 44 Cal.4th 602, 616; see
Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252,
266 [“Determining whether invidious discriminatory purpose was a
motivating factor demands a sensitive inquiry into such circumstantial
and direct evidence of intent as may be available.”].)

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9
proof beyond a reasonable doubt, the prosecutor responded by
asking him to “tell me about that” and explaining, “I appreciate
your honesty.” He did not ask for Prospective Juror No. 3049’s
views on the criminal justice system.
Prospective Juror No. 4247, on the other hand, said that
when his friend was murdered, the system worked. When
No. 4247 was arrested for a DUI, he was treated fairly. As with
No. 3049, the prosecutor asked Prospective Juror No. 4247 if he
would have any problem convicting defendant if the prosecutor
proved his case. But unlike with No. 3049, the prosecutor asked
the question three different ways—and unlike No. 3049, who said
“it would be hard” to convict, Prospective Juror No. 4247
responded that he would have no trouble convicting defendant.
Despite these unambiguous answers, the prosecutor later
asked Prospective Juror No. 4247 for his views on the criminal
justice system, a question No. 3049 was not asked. When
Prospective Juror No. 4247 acknowledged that sometimes
innocent people are convicted and sometimes guilty people go
free, the prosecutor aggressively cross-examined him, then kicked
him off the jury. Indeed, of the seated jurors, all of the minorities
were asked this question. By contrast, only one of the five white
jurors, a woman, was asked about the criminal justice system.
(See Miller-El v. Cockrell (2002) 537 U.S. 322, 344 [“if the use of
disparate questioning is determined by race at the outset, it is
likely a justification for a strike based on the resulting divergent
views would be pretextual.”].)4
4 Nor can the prosecutor’s aggressive questioning be attributed to
Prospective Juror No. 4247’s DUI. Seated Juror No. 2779, a white man
questioned immediately after No. 4247, also reported a DUI conviction
and also said he was treated fairly. As with the other white jurors,

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Fourth, I disagree with the majority’s conclusion that
where an African-American man answers “yes” when a
prosecutor asks him whether innocent people are sometimes
convicted and guilty people sometimes go free, his
acknowledgement of this inarguable fact provides such an
obvious basis for striking the prospective juror that the court
need not even rule on the prosecutor’s subjective motivation. In
my view, when the prosecutor offers distrust of the criminal
justice system as his justification for excluding the only
remaining African-American man on the jury panel, the
constitution requires more. (See, e.g., Baldus et al., The Use of
Peremptory Challenges in Capital Murder Trials (2000) 3 U.Pa. J.
Const. L. 3, 42–43 [discussing training video that advised
prosecutors to avoid “ ‘blacks from low income areas’ ” because of
their “resentment” of law enforcement and tendency to resist
authority]; Smith et al., The Impact of Implicit Racial Bias on the
Exercise of Prosecutorial Discretion (2012) 35 Seattle U. L.Rev.
795, 819 [“In addition to the stereotype that black citizens are
prone to criminality (and thus might sympathize more with those
who commit crime), prosecutors might associate black citizens
with lack of respect for law enforcement”].)
On this record, the prosecutor’s reasons for striking
Prospective Juror No. 4247 do not withstand scrutiny. Certainly,
the reasons are not self-evident. My finding of improper
discrimination as to this prospective juror “is not based on any
however, the prosecutor did not ask about this juror’s views on the
criminal justice system. Instead, the prosecutor asked No. 2779 a
single question: whether he would be able to decide the case without
considering punishment, a question the prosecutor asked every
prospective juror in that group.

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conduct that is particularly egregious or any evidence that
approximates a smoking gun.” (Gutierrez, supra, 2 Cal.5th at
p. 1182.) Instead, it is based on the following, which the court did
not consider at the third Batson/Wheeler hearing or any other:
◦ the lack of comparable questioning of non-minority
jurors;
◦ the lack of any indication that the prosecutor
thought No. 4247 was untruthful or uninformed;
◦ the prosecutor’s disinterest in meaningfully
questioning four white prospective jurors on their
views of the criminal justice system;
◦ the fact that the prosecutor kept No. 3049, a white
man, as a trial juror notwithstanding his expressed
reluctance to convict;
◦ the fact that the prosecutor ostensibly struck the
only other African-American man (No. 8238) because
he misread the jury questionnaire—yet accepted a
trial juror (No. 6526) who had somehow forgotten
that one of his cousins murdered another one of his
cousins;
◦ the fact that the prosecutor also ostensibly struck
minority jurors—including No. 8238—because they
were college students or lacked extensive work
experience, but accepted a white trial juror (No.
2578) even though he was a new college graduate
who had never held a job; and
◦ the fact that the prosecutor struck No. 4247 despite
his unequivocal assertion that he would have no

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trouble convicting defendant if the prosecution met
its burden.
In sum, I conclude defendant was denied her right to a fair
trial under the Equal Protection Clause of the federal
Constitution (Batson v. Kentucky (1986) 476 U.S. 79, 84–89) and
her right to a jury drawn from a representative cross-section of
the community under our state Constitution (People v. Wheeler
(1978) 22 Cal.3d 258, 276–277). Accordingly, I respectfully
dissent.
LAVIN, J.

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