People v. Silas ( 2021 )

Filed 9/17/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A150512
v.
SHELDON VAUGHN SILAS et al., (Contra Costa County
Super. Ct. No. 5-140709-7)
Defendants and Appellants.
Defendants Sheldon Silas, Reginald Whitley, Lamar Michaels, and
Linda Chaney, all of whom are Black, were tried for various crimes related to
the murders of Christopher Zinn and Brieanna Dow, who were also Black.
During jury selection, defendants brought Batson/Wheeler1 motions to
challenge the prosecutor’s exercise of peremptory strikes against three Black
prospective jurors, including one who expressed support for Black Lives
Matter. The trial court denied the motions, and the seated jury, which had
two Black members, returned convictions on all the charged crimes.
We conclude that the Batson/Wheeler motion involving the prospective
juror who expressed support for Black Lives Matter was improperly denied.
Defendants established a prima facie case of discrimination at the first stage
of the Batson/Wheeler analysis, and the prosecutor’s proffered reasons for the
strike—that the juror was hostile when asked about supporting Black Lives
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978)
1
22 Cal.3d 258.
1
Matter and had “anti-prosecution issues”—should not have been credited.
Thus, insufficient evidence supports the conclusion at the third stage of the
analysis that the peremptory strike was not “ ‘motivated in substantial part
by discriminatory intent.’ ” (Foster v. Chatman (2016) 578 U.S. 1023, 136
S.Ct. 1737, 1754 (Foster).) Because the error was structural, we reverse the
judgments and remand for a new trial.2
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In October 2012, 24-year-old Zinn and his girlfriend, 21-year-old Dow,
were shot to death in an unincorporated area of Contra Costa County
between Pittsburg and Antioch. Evidence was presented at trial that Silas
and Whitley, brothers and members of a San Francisco street gang, suspected
Zinn, a fellow gang member, had stolen guns from them. Shortly before the
murders, the brothers attacked Zinn outside his and Dow’s apartment
building, where Whitley and Chaney—Whitley’s girlfriend—also lived. Zinn
and Dow ran away, and Silas and Whitley pursued them in two separate
cars, one of which was driven by Michaels, the brothers’ cousin. A few
minutes later, both victims were shot to death on the side of the road. The
2 Defendants raise numerous other claims, both jointly and
individually, which we do not address in light of our disposition. Some of
these claims involve pretrial rulings, such as the denial of Chaney’s motion to
sever her trial from that of her codefendants, that arguably are not rendered
moot by our determination that defendants are entitled to a new trial. Our
decision not to address such claims is without prejudice to defendants’ ability
to challenge the same rulings in a future appeal.
Whitley also filed two petitions for writ of habeas corpus in which he
claims he received ineffective assistance of counsel in the proceedings below.
By separate orders, we deny as moot the petitions in case nos. A155256 and
A159988.
2
prosecution’s theory at trial was that Silas was the actual killer and Whitley
and Michaels were aiders and abettors.
Silas, Whitley, and Michaels were originally charged in October 2012.
Subsequently, Chaney and Lisa Arnold—Silas and Whitley’s mother—were
charged in the same case with various counts related to attempts to dissuade
two witnesses from testifying and a count of accessory after the fact. Chaney
was also charged with 49 felony counts of entering jail grounds as an ex-
convict.
After the male defendants waived time, Chaney and Arnold were tried
together in the fall of 2014. Chaney was found guilty of all counts of entering
jail grounds as an ex-convict, but she was acquitted of one count of witness
dissuasion, and the jury hung on the remaining three counts against her.3
The lone holdout juror on the hung counts was Black.
Trial of the three male defendants and retrial of Chaney on the three
hung counts began in October 2015. During jury selection, the prosecutor
exercised peremptory challenges against a total of six Black potential jurors.
The trial court found no Batson/Wheeler violation as to any of the six, and
the seated jury had no Black members except for one alternate juror. After
jury selection concluded but before the presentation of evidence began, the
court granted a mistrial because Whitley’s original trial counsel unexpectedly
died.
The trial at issue began in August 2016. The operative information
charged Silas, Whitley, and Michaels with two counts of murder, one count of
The jury also hung on all counts involving Arnold, and her retrial was
3
severed from the trial of the defendants before us. We do not discuss her
further.
3
conspiracy to commit murder, and other firearms-related felonies.4
Numerous sentencing enhancements were also alleged, including multiple-
murder and gang-murder special circumstances, firearm enhancements, and
gang enhancements.5 In addition, it was alleged that Silas and Michaels
were released on bail when they committed the offenses.6 Chaney was
charged with one count of conspiracy to dissuade a witness, one count of
witness dissuasion, and one count of being an accessory after the fact, all
4The murder charges were brought under Penal Code section 187,
subdivision (a), and the murder conspiracy charge was brought under Penal
Code sections 182, subdivision (a)(1), and 187, subdivision (a). In addition,
Whitley was charged with possession of a firearm by a felon under Penal
Code section 29800, subdivision (a)(1), Silas and Michaels were charged with
possession of an assault weapon under Penal Code section 30605,
subdivision (a), and Michaels was charged with unlawful firearm activity
under Penal Code section 29815, subdivision (a). All further statutory
references are to the Penal Code unless otherwise noted.
5 The gang-murder special circumstance was alleged as to both murders
under section 190.2, subdivision (a)(22), and the multiple-murder special
circumstance was alleged under section 190.2, subdivision (a)(3). It was
alleged that the three male defendants committed all the charged crimes for
the benefit of a street gang under section 186.22, subdivision (b)(1)(A)
(firearms-related charges) and (b)(5) (murder and conspiracy charges). In
addition, it was alleged under section 12022.53, subdivision (d), that Silas
personally and intentionally discharged a firearm causing death in the course
of both murders and the conspiracy to commit murder, under
section 12022.53, subdivision (b), that Silas and Whitley personally used a
firearm in the course of Zinn’s murder and the conspiracy to commit murder,
and, as to all three men and all three homicide offenses, that a principal
personally and intentionally discharged a firearm causing death, personally
and intentionally discharged a firearm, and personally used a firearm under
section 12022.53, subdivisions (b)–(e).
6 These allegations were made under section 12022.1.
4
felonies. It was also alleged that she committed the latter two crimes for the
benefit of a street gang.7
During jury selection, the prosecutor exercised peremptory challenges
against three Black prospective jurors, and each challenge was the subject of
a Batson/Wheeler motion. The trial court found that no prima facie case of
discrimination was established as to the first two jurors, both of whom the
prosecutor had unsuccessfully challenged for cause. As to the third
challenge, the court found a prima facie case, but it accepted the prosecutor’s
reasons for the challenge and denied the motion. The seated jury had two
Black members.
The jury convicted the male defendants of first degree murder of Zinn
and conspiracy to commit murder, Silas and Whitley of first degree murder of
Dow, and Michaels of second degree murder of Dow. The jury also found true
as to all male defendants the gang-murder special circumstance for both
murders and the multiple-murder special circumstance, as well as all other
accompanying enhancements charged.8 In addition, the jury found Silas
guilty of possessing an assault weapon, Whitley guilty of being a felon in
possession of a firearm, and Michaels guilty of possessing an assault weapon
7 The witness dissuasion charge was brought under section 136.1,
subdivision (c)(1), the witness dissuasion conspiracy charge was brought
under sections 136.1, subdivision (c)(1), and 182, subdivision (a)(1), and the
accessory charge was brought under section 32. The gang enhancements
were alleged under section 186.22, subdivision (b)(1)(A) (accessory count) and
(b)(4) (witness dissuasion count). Chaney was also erroneously charged with
the count of witness dissuasion of which she had previously been acquitted,
and the charge was subsequently removed from the jury’s consideration.
8 Although the jury acquitted Michaels of first degree murder of Dow,
the verdict form for the lesser included offense of second degree murder also
included the gang-murder special circumstance, and the jury found the
special circumstance true even though it does not apply to that crime. (See
§ 190.2, subd. (a).) The trial court subsequently struck the finding.
5
and unlawful firearm activity, and found true the gang allegations
accompanying these counts. Finally, Chaney was found guilty of all three
counts charged against her, but the jury found not true the accompanying
gang allegations.
Silas was sentenced as follows: (1) for the murder of Zinn, life without
the possibility of parole (LWOP), plus consecutive terms of 25 years to life for
personally and intentionally discharging a firearm causing death, 10 years
for committing the crime for a gang’s benefit, and two years for the bail
enhancement; (2) for the murder of Dow, LWOP, plus consecutive terms of
25 years to life for personally and intentionally discharging a firearm causing
death and 10 years for committing the crime for a gang’s benefit; and (3) for
possession of an assault weapon, three years plus a consecutive term of four
years for committing the crime to benefit a street gang. The trial court
indicated that Silas’s total term was LWOP plus 70 years to life plus seven
years.9
Whitley was sentenced on both murder convictions to LWOP, plus a
consecutive term of 25 years to life for a principal’s personal and intentional
discharge of a firearm causing death. For the conviction of being a felon in
possession of a firearm, he was sentenced to three years plus a consecutive
term of four years for the accompanying gang enhancement, for a total term
of LWOP plus 50 years to life plus seven years.
9 This calculation appears to omit the consecutive two-year term
imposed for the bail enhancement, but we need not address this discrepancy
or any other potential sentencing errors in light of our disposition. Also, in
summarizing the defendants’ sentences, we do not detail additional
convictions or enhancements that were stricken or for which terms were
imposed but stayed.
6
Michaels was sentenced for Zinn’s murder to LWOP, plus consecutive
terms of 25 years to life for a principal’s personal and intentional discharge of
a firearm causing death and two years for the bail enhancement. Michaels
was sentenced for Dow’s murder to 15 years to life, plus a consecutive term of
25 years to life for a principal’s personal and intentional discharge of a
firearm causing death. For possession of an assault weapon, he was
sentenced to three years plus a consecutive term of four years for the
accompanying gang enhancement, and for unlawful firearm activity, he was
sentenced to eight months plus a consecutive term of one year for the
accompanying gang enhancement. Thus, he received a total term of LWOP
plus 67 years to life plus eight years, eight months.
Finally, Chaney was sentenced to four years for dissuading a witness,
plus a consecutive term of seven years for her other convictions from the
previous trial, for a total term of 11 years.
II.
DISCUSSION
Defendants contend that their three Batson/Wheeler motions should
have been granted. We agree with them with regard to the motion involving
Juror 275.
A. The Batson/Wheeler Framework
“The prosecution’s use of peremptory challenges to remove prospective
jurors based on group bias, such as race or ethnicity, violates a defendant’s
right to trial by a jury drawn from a representative cross-section of the
community under article I, section 16 of the California Constitution and [the
defendant’s] right to equal protection under the Fourteenth Amendment to
the United States Constitution.” (People v. Blacksher (2011) 52 Cal.4th 769,
801.) The discriminatory use of peremptory challenges harms not only
defendants but also “the excluded jurors and the community at large,” as it
7
“forecloses a significant opportunity to participate in civic life” and
“ ‘undermine[s] public confidence in the fairness of our system of justice.’ ”
(Johnson v. California (2005) 545 U.S. 162, 172 (Johnson); Powers v. Ohio
(1991) 499 U.S. 406, 409.) “The exclusion by peremptory challenge of a single
juror on the basis of race or ethnicity is an error of constitutional magnitude
requiring reversal.”10 (People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)
Claims that a prosecutor impermissibly exercised a peremptory
challenge based on group bias require a three-step analysis. (People v.
Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez).) First, the defendant
“must demonstrate a prima facie case by showing that the totality of the
relevant facts gives rise to an inference of discriminatory purpose.” (Ibid.)
“ ‘ “Discriminatory purpose” . . . implies more than intent as volition or intent
as awareness of consequences. It implies that the decisionmaker . . . selected
. . . a particular course of action at least in part “because of,” not merely “in
spite of,” its adverse effects upon an identifiable group.’ ” (Hernandez v. New
York (1991) 500 U.S. 352, 360 (plur. opn. of Kennedy, J.).)11 Nonetheless, the
prima facie case is a “ ‘low threshold,’ ” requiring a showing only that
“ ‘discrimination may have occurred.’ ” (People v. Johnson (2019) 8 Cal.5th
475, 538.)
10 An alleged Batson/Wheeler error may be found harmless where (1) it
pertains to a prospective juror who would have been an alternate and (2) no
alternates were called onto the main panel. (People v. Mills (2010) 48 Cal.4th
158, 182.) This principle does not apply here, because although Juror 275
would have been seated as an alternate juror had she not been challenged,
three alternate jurors were randomly chosen to be seated on the main jury.
11 In other words, the Batson framework “is not designed to root out
implicit bias.” (Shirley v. Yates (9th Cir. 2015) 807 F.3d 1090, 1110, fn. 26;
see Miller-El v. Dretke (2005) 545 U.S. 231, 267–268 (conc. opn. of Breyer,
J.).)
8
Second, if a defendant makes a prima facie showing, the burden shifts
to the prosecutor to “state nondiscriminatory reasons for the challenges.”
(People v. Hardy (2018) 5 Cal.5th 56, 75; Gutierrez, supra, 2 Cal.5th at
p. 1158.) The prosecutor’s reasons need not be “persuasive, or even plausible.
‘At this . . . step of the inquiry, the issue is the facial validity of the
prosecutor’s explanation. Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race neutral.’ ”
(Purkett v. Elem (1995) 514 U.S. 765, 767–768 (per curiam).)
Third, if the prosecutor provides a facially adequate explanation for the
challenge, “the trial court must decide whether the [defendant] has proven
purposeful discrimination,” which requires a showing that it was more likely
than not that the challenge was “ ‘motivated in substantial part by
discriminatory intent.’ ” (Foster, supra, 578 U.S. 1023, 136 S.Ct. at p. 1754;
Gutierrez, supra, 2 Cal.5th at p. 1158.) At this step, the focus is on “the
credibility of the prosecutor’s neutral explanation. Credibility may be gauged
by examining factors including but not limited to ‘ “ ‘the prosecutor’s
demeanor; by how reasonable, or how improbable, the explanations are; and
by whether the proffered rationale has some basis in accepted trial
strategy.’ ” ’ ” (Gutierrez, at p. 1168.) “The ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the opponent of
the strike.” (People v. Lenix (2008) 44 Cal.4th 602, 612–613.)12
12 Assembly Bill No. 3070 (2019–2020 Reg. Sess.), legislation that will
significantly modify the Batson/Wheeler framework, was signed into law
in 2020. Among other things, it provides that some reasons for striking a
juror that were relied on here, including distrust of law enforcement and the
criminal legal system, are presumptively invalid. (Code Civ. Proc., § 231.7,
subd. (e).) The legislation has no bearing on this appeal, however, because it
applies prospectively to trials “in which jury selection begins on or after
January 1, 2022.” (Id., subd. (i).)
9
B. Additional Facts
Governing authority is clear that “ ‘all of the circumstances that bear
upon the issue of racial animosity must be consulted’ ” to evaluate a
Batson/Wheeler motion. (Foster, supra, 578 U.S. 1023, 136 S.Ct. at p. 1748.)
The relevant circumstances on which a defendant may rely include not only
“the record of jury selection” in the trial at issue but also “historical evidence”
from past trials. (Flowers v. Mississippi (2019) 588 U.S. __, 139 S.Ct. 2228,
2245, 2248.) Here, in addition to the record of jury selection in this trial, our
record contains documents from Chaney and Arnold’s 2014 trial, the 2015
jury selection in this case before a mistrial was declared, and a 2015 trial in
an unrelated case during which a different judge granted a Batson/Wheeler
motion to overturn a peremptory challenge made by the same prosecutor.
Defendants relied on all these sources in challenging the prosecutor’s exercise
of peremptory strikes in this trial, and we discuss them in more detail as they
were presented in the proceedings below.
Although we need not evaluate all three challenged Batson/Wheeler
rulings to conclude that reversal is required, we describe in some detail the
factual circumstances surrounding the rulings because they “bear[] on the
question whether the excusal of [any one of the jurors] constituted unlawful
discrimination.” (People v. Scott (2015) 61 Cal.4th 363, 392 (Scott).) The
defense challenges to the striking of these three potential jurors in particular,
and racial issues more generally, were extensively discussed by the
prosecutor, four defense attorneys, and trial court (all of whom are white).
In describing these circumstances, we first discuss the evidence directly
related to Juror 275, even though she was not the first of the three jurors to
be examined. We then discuss the evidence related to or revealed during the
examination of the other two potential jurors. This evidence shows that
10
when the prosecutor asked Black potential jurors questions with racial
implications, such as questions about Black Lives Matter, she sometimes
became antagonistic and tended to reject responses that differed from her
preconceived notions of the correct answers. It shows that the prosecutor
sometimes incorrectly recounted the record in defending against
Batson/Wheeler challenges. It shows that the prosecutor unsuccessfully tried
to have the Black hold-out juror in the Arnold-Chaney trial dismissed by
claiming that the juror had refused to deliberate, rather than accepting that
the juror simply had fundamental disagreements with the other jurors. And
it shows that the prosecutor had a Batson/Wheeler objection sustained
against her by a trial judge in a different case and other prosecutors in the
Contra Costa County District Attorney’s Office have engaged in
Batson/Wheeler violations. As we will explain, this evidence collectively
undermines the conclusion that the peremptory strike of Juror 275 was not
“ ‘motivated in substantial part by discriminatory intent.’ ” (Foster, supra,
578 U.S. 1023, 136 S.Ct. at p. 1754.)
1. Juror 275
Juror 275 was a 25-year-old Black woman from Concord who worked as
a mail carrier and had previously been employed as a security guard. One of
the questions on the juror questionnaire asked about involvement “with any
law or justice-focused special interest groups” and gave several examples
across the political spectrum, including “Black Lives Matter” and “Blue Lives
Matter.” In response, Juror 275 wrote, “I support Black [L]ives Matter.” She
also responded affirmatively to a question asking whether jurors held “any
strong feelings about whether the present criminal justice system treats any
person differently than others based on gender, race, religion, or national
origin,” but she indicated that this would not “affect [her] as a juror.”
11
During its opening remarks to Juror 275’s group, the trial court
addressed at length the jury’s duty to evaluate witness credibility.13 After
explaining how the jurors should evaluate witnesses in general, the court
discussed two examples, expert witnesses and law enforcement officers. As to
law enforcement witnesses in particular, the court stated that while some
people might have very strong positive or negative reactions to them, the
jurors needed to judge their credibility like that of any other witness.
Concluding its overall remarks about witness credibility, the court asked the
jurors whether they all could “follow [its] instruction with regard to
evaluation of witness testimony,” and stated that it “[saw] all nodding heads.”
As the trial court later explained, it observed that Juror 275 did not nod
her head at this juncture, but it nevertheless “said everybody nodded their
head because [it] didn’t want to put her on the spot.” Thus, when the court
individually addressed Juror 275, it said, “[Y]ou wrote in your questionnaire
that you support Black Lives Matter. I also notice you didn’t nod your head
when I talked about police officers. Is there a concern that you have about
police officers should they testify?” The juror responded, “No.” The court
then asked, “So if a police officer takes the stand and another individual
takes the stand, are you going to treat the police officer[’s] testimony as you
would anybody else’s testimony?” Juror 275 responded, “Yes.”
After questioning Juror 275 about a relative who had been arrested,
the trial court asked whether she had “a negative impression either of the
way the police handled the arrest or the booking, the way the prosecutor
handled the charging, anything at all that left [her] with a negative
13After excusals for hardships, which alone took several days, the
remaining potential jurors were questioned in 16 groups of approximately 16
jurors each, with each group requiring about a day’s worth of voir dire.
12
impression.” The juror responded, “No.” Moving to Juror 275’s indication on
her questionnaire that she had strong feelings about the justice system’s
treatment of people in different groups, the court asked, “What are your
feelings about how [it] treats people differently?” Juror 275 responded, “My
feelings about sentencing based on the crime. I don’t think it’s necessarily
fair for—I’ve noticed that Black people—how I feel is that Black people are
being sentenced longer than other races.” The court then segued to
explaining that sentencing is not the jury’s responsibility and did not ask
Juror 275 further questions about her views on the justice system, except to
confirm that her views about sentencing would not affect her ability to be
fair.
When questioning Juror 275, the prosecutor sought to confirm with the
juror that “one of the things that [the juror did] socially [was she] support[ed]
Black Lives Matter.” Juror 275 stated she supported the movement but was
“not in anything social like as in group-wise, no.”
The prosecutor responded, “Okay. And that’s kind of [what] I was
really getting at. There are certain movements with Black Lives Matter, as
I’m sure you know, that are basically civil disobedience where [¶] . . . [¶] you
have riots.” Juror 275 responded, “Right,” before defense counsel successfully
objected. The following exchange then occurred14:
[D.A.]: Where you have individuals as part of that particular
movement that, for instance, destroy property that’s
not their own. Would you agree with that?
[JUROR 275]: No.
[D.A.]: Okay. And would you agree that during certain
demonstrations that people may break into stores as
The ellipses below denote places where defense counsel
14
unsuccessfully objected to the prosecutor’s questioning.
13
part of that particular demonstration?
...
[JUROR 275]: Do I agree with it? Meaning would I do it?
[D.A.]: No, that it happens.
[JUROR 275]: Like have I seen it happen?
[D.A.]: No. Just do you think it happens at all during some
of those demonstrations?
[JUROR 275]: Yeah, it’s happened.
[D.A.]: Okay. In general, your support for Black Lives
Matter, do you agree or do you disagree with that
type of behavior, that is, destroying other people’s
property?
...
[JUROR 275]: Do I agree with people destroying other[s’] property?
[D.A.]: As part of their statement of a demonstration.
[JUROR 275]: No, I don’t.
The prosecutor subsequently challenged Juror 275 for cause, pointing
to Juror 275’s responses to both the trial court’s questions and the
prosecutor’s own questions. As to the court’s questions, the prosecutor
claimed that Juror 275 was not responsive, failing to provide “further
clarification as to what . . . her particular views were about law enforcement,”
until when asked about the justice system “she finally did offer up that there
[were] issues about punishment.”
As to the questioning about Black Lives Matter, the prosecutor stated it
was meant to elicit whether Juror 275 “recognize[d] whether . . . it was a . . .
14
social activist group.” The prosecutor characterized Juror 275 as “originally
den[ying] knowing of the civil unrest of open rioting where private property is
damaged, which is well-known within the media.” According to the
prosecutor, Juror 275 “rolled her eyes” while the prosecutor was asking
“about whether . . . places were burglarized,” and Juror 275’s “response
actually became more and more hostile when the defense attorneys were
objecting,” prompting the prosecutor to “end[] that particular line of
questioning.” Stating that Juror 275’s “attitude was completely different”
when being questioned by defense counsel, the prosecutor “ask[ed] the Court
to find that there may be an apparent bias that [Juror 275] is refusing to
acknowledge to this particular Court based on her behavior and her answers
in total.”
Silas’s counsel then explained that his objection to the prosecutor’s
questions was her implication that Black Lives Matter stands for violence
and property destruction, when in fact “[t]he people who speak for that
organization do not advocate violence, rioting, anything like that.” In
counsel’s view, Juror 275 “was taken aback by that, as [he] was.” Similarly,
counsel for Michaels believed that the prosecutor’s “questioning . . . was
attacking this juror, in some ways accusatory, [for] her support for . . . this
group,” and his “sense from what [he] could hear in [Juror 275’s] voice is she
took it the same way. And . . . like any person attacked, reacted perhaps in a
bit of an off-putting way.”
Whitley’s counsel took an even stronger view, stating that “this was an
assaultive and aggressive and accusatory type of questioning.” He explained,
“[T]he focus of [the prosecutor’s] questions was not what the purpose behind
Black Lives Matter was, and that is to raise consciousness. The focus of [the
prosecutor’s] questioning was that it was a quasi-criminal, civilly disobedient,
15
vandalizing group of Black people . . . and those whites who supported them.
[¶] And it was that sort of accusatory questioning that if [the prosecutor]
thinks she can engage in [it] and then when she gets a rise out of a juror say,
‘Oh, the juror doesn’t like me,’ I think that is the height of manipulation.”
Chaney’s counsel took issue with the prosecutor’s “spinning” of
Juror 275’s responses “to say . . . that the juror was denying that any of those
actions take place by members of Black Lives Matter. That wasn’t the
approach or the response. It was, ‘No, I don’t agree with those criminal
actions.’ ” In reply, however, the prosecutor reiterated that her “question to
[Juror 275] was to ask her whether . . . she agreed with me that during some
of these social movements there are, in fact, vandalisms committed . . . by
this particular group. . . . It was not asking her if she does it, if she
participates in it, but merely a question of her to see if she was going to
acknowledge that or not. And she denied it.”
The prosecutor then denied she was “trying to get a rise out of
[Juror 275],” explaining that “[w]hen you have a social organization that
does, in fact, from time to time and, obviously not all members, act in social
disobedience, there’s very few questions that you can ask them where they’re
going to admit [to] that particular behavior.” Clarifying that she was talking
about “jury nullification” specifically, the prosecutor stated, “The only way
that I can probe at possible bias that is not willing to be exposed is to ask
questions about whether . . . individuals could agree that maybe there is a
bad portion of this particular movement that they’re in. And ultimately I
think everyone here would agree that there are a lot of proponents who
disagree with all of the rioting that is occurring; but if [one] were to
straight[]out ask them[,] ‘Does this happen?’[,] their answer would be ‘yes.’
16
They’re not hiding that. And that’s where my issue comes in with the
answers from [Juror 275].”
The trial court stated it had permitted the questions because “one of
the issues with Black Lives Matter[] is there are not leaders. It’s a
nonstructured organization. . . . [¶] So there is not a spokesperson [who] says,
‘I’m speaking for them.’ And at times, you know, the social media is what
brings them together and causes them to, you know, block the Bay Bridge
and commit certain acts of civil disobedience and agree to meet somewhere
and do what they do. So there isn’t per se advocacy of it. But there isn’t also
per se somebody saying, ‘We do not support this. We do not allow this to
happen.’ ” Although observing that “[p]erhaps the word ‘rioting’ was loaded,”
the court agreed with the prosecutor that “it is well-known that Black Lives
Matter does organize civil disobedience.” The court then told the prosecutor
that if she questioned another juror “who supports Black Lives Matter,” she
would “have a right to go into whether or not they’re supporting civil
disobedience.”
Characterizing the issue as “a very close call,” the trial court ultimately
denied the challenge for cause. It observed that Juror 275 had consistently
said she could be fair, had said she could “set aside her feelings about
sentencing based on race,” and had said she did not support property
destruction by some “followers” of Black Lives Matter.
At a later hearing, defense attorneys reiterated concerns involving the
prosecutor’s questioning of Juror 275 about Black Lives Matter. The trial
court responded that it believed Juror 275’s attitude toward the prosecutor
did not change once the prosecutor asked her about Black Lives Matter.
Rather, throughout the court’s and prosecutor’s questions, the juror “was
reserved, reluctant to respond, didn’t make eye contact, . . . her body
17
language was completely shut off, crossed arms, crossed legs, holding . . . onto
her purse as though she was about to leave . . . . And she did not warm up.”
The court also observed, however, that the prosecutor’s approach to questions
about Black Lives Matter was abrupt and that the prosecutor “did use what
[the court] felt was a strong word, which is rioting, and . . . it can cause a
reaction.” Ultimately, the court determined that the prosecutor “ha[d] every
right to question somebody who supports that movement,” including about
times when “Black Lives [Matter] demonstrations evolve into horrendous
rioting and damage to—ultimately many times—to Black store owners’
stores.”
The prosecutor subsequently exercised a peremptory challenge against
Juror 275, and defendants brought a Batson/Wheeler motion to set aside the
challenge. The trial court found that defendants had not established a prima
facie case of discrimination and denied the motion, observing, “I don’t think
this is close.” After the court asked whether the prosecutor would like “to put
anything on the record,” the prosecutor stated, “I think this is going to be a
clear and prime example to our appellate courts of Batson/Wheeler
completely out of control. On this jury, ready to be sworn, [are] two African-
American females. It’s approximately 25 percent African American of the
wom[e]n who are sitting in the jury. This is a clear example of how defense
attorneys exploit what truly is a needed opportunity and . . . make a joke out
of jury selection.” The prosecutor then indicated she would give her reasons
for the peremptory challenge later.
At a subsequent hearing, the prosecutor put on the record the following
reasons for striking Juror 275: “She was openly hostile, to say the least,
when I was questioning her about Black Lives Matter. She disagreed that
Black Lives Matter, there is a contingent within it [that] destroys property or
18
. . . riots. That’s just absolutely not true or . . . she has chosen to close her
eyes to it. [¶] She has strong opinions of law enforcement in the negative way.
And she did not nod to treat law enforcement equally. [¶] She arrived late.
She wanted absolutely nothing to do with this case. And with her arms
crossed, was openly angry with me in my questioning, for whatever reason.”
Addressing Juror 275 as well as Juror 211, whom we discuss next, the
trial court elaborated on its finding of no prima facie case as to either juror.
It explained, “Both jurors . . . had a myriad of anti-prosecution issues that
were vocalized by [the prosecutor] and this Court so observed during the
cause challenge[s] as well as today. I came extremely close to granting both
requests but because the potential jurors stated they could set aside these
biases, I did not grant the challenges for cause. In retrospect, I could very
easily have gone [a] different direction and granted the cause challenges.”
2. Juror 211
Juror 211 was examined before Juror 275. She was a 34-year-old Black
woman who had a degree in biological sciences and worked as a disability
insurance program representative. She had lived in Richmond for decades,
and in response to a question on the juror questionnaire asking jurors to
describe the area in which they grew up, she wrote, “I would describe
Richmond, CA as a community of hope, pride and love. I have had many
opportunities growing up to advance academically and socially. The pride of
Richmond . . . keeps the city striving and the love that is given within the
community strengthen[s] the bond of one another.”
Another question on the questionnaire asked jurors whether they had
“any strong opinions about how police do their jobs,” and, if so, what their
opinion was and how they thought it might affect them as jurors. Juror 211
answered affirmatively and wrote, “I will be pay[ing] close attention to details
19
to ensure the police did not do anything unethical.” In response to another
question asking whether jurors “ever had a lasting experience with law
enforcement, either positive or negative,” she responded that she had and
explained, “My experience was with the Sac State campus police, I was
wrongfully pulled over for running a stop light. I went to court and won.
This experience will not affect me [as] a juror.”
Juror 211 also checked “Yes” in response to the following question: “Do
you have any strong opinions about how the court process operates with
persons accused of crimes?” Underneath the question, she wrote, “What is
strong?” In response to a follow-up question, she explained that her opinion
“[would] affect [her] as a juror to ensure everyone is given a fair [trial] and
chance.” Finally, in response to the question asking whether jurors had
“strong feelings about whether the present criminal justice system treats any
person differently than others based on gender, race, religion, or national
origin,” Juror 211 answered affirmatively but stated, “It would not affect me
as a juror. As a juror your thought process has to be unbias[ed].”
On the first morning of her group’s voir dire, Juror 211 arrived at court
approximately 40 minutes late. When the trial court asked her to explain,
the juror apologized for being late and explained that she had spent the
previous night in Fairfield to help her cousin move and had encountered
unanticipated traffic. She then confirmed that if picked to be a juror, she
would normally be coming from Richmond where she lived, not Fairfield. The
court thanked the juror for her apology and said, “We’ll keep you. Just be
reminded to please be on time.”
Juror 211 failed to sign the last page of her questionnaire, which
required a declaration under penalty of perjury that the information she had
given was “true and correct.” At the trial court’s request, she affirmed on the
20
record that “everything that [she] put on the questionnaire [she had] stated
under the penalty of perjury.”
The trial court also asked Juror 211 about her answers to certain
questions on the questionnaire. First, in regard to Juror 211’s statement that
she would pay close attention to make sure the police did not do anything
unethical, the court said, “It’s certainly important to be careful about every
witness [who] testifies. However, it’s presuming that the police were likely to
do something unethical that would be inappropriate. Does that make sense?”
Juror 211 confirmed that she understood, and she responded, “Of course,”
when the court asked whether she would “be able to view a police officer
testifying the same way [she] would any other witness [who] testified.”
The trial court also referred to Juror 211’s statement, in response to the
question about “strong opinions about the court process,” that the juror would
want “to ensure everyone is given a fair trial and chance.” The court stated,
“[W]e are thrilled to have the people [who] want to make sure the Court is
fair and everyone [is] being given a fair chance. It’s just holding up the
presumption that it’s not going to be fair that could be inappropriate. Do you
see the difference?” Juror 211 responded that she did, saying, “My question
was ‘strong.’ It’s just a vague word. Like what are we talking about? Are we
talking about a scale of one to ten? I wasn’t sure how to judge the word
‘strong.’ That’s why I questioned that, you know. So ‘strong’ meaning what?
Like will it affect me and make me biased? Will it make me unethical? No,
not that strong.”
When the prosecutor returned to this topic later, Juror 211 reiterated
that she did not have “any strong opinions” about the criminal court process
that would make her biased or unethical. The prosecutor also asked the juror
to describe her “strong feelings” about the justice system’s disparate
21
treatment of people based on race or other categories, and the juror
responded, “I know it happens, so my opinion is that it’s not right, but . . . I
haven’t experienced that personally. I can’t give a detailed . . . opinion about
[it]. I can just tell you that it’s unfair.”
The prosecutor questioned Juror 211 at length about Richmond. After
confirming that Juror 211 had “deep roots in Richmond,” the prosecutor
asked how the city had changed over time, and the juror responded,
“Demographically it’s changed. There’s more Latinos in our community.
Changed as far as school district, the way the schools are r[u]n, those are
different. I would say those are two of the main things that I’ve seen. More
businesses have closed, so those are different.”
The prosecutor asked, “How about crime, do you think it’s changed?”
Juror 211 responded, “It’s changed for the better. . . . [¶] . . . [¶] I think the
crime rate has—the murder rate has decreased in Richmond.” Referring
back to Juror 211’s statement that there are “strong family roots in
Richmond,” the prosecutor then asked, “[W]ould you agree with me that there
can be very strong and loving families, and there can be families who pass on
criminal activity?” Before the trial court sustained a defense objection to the
question, Juror 211 responded, “Of course.” The prosecutor also asked if
there were gangs in Richmond and in Juror 211’s particular area. Juror 211
stated there were, but she denied that it was “pretty noticeable as to who is
involved in a gang and who is not” or that gangs were “divided in any way
based on racial lines,” explaining that gang membership was more
“[t]erritorial.”
Although Juror 211 indicated on her questionnaire that none of her
family members had been the victim of a crime, the prosecutor asked her the
same question during voir dire. Juror 211 then disclosed that her cousin had
22
been killed about seven years before during “random street violence,” and as
far as she was aware the crime had not been investigated.
Before the defense attorneys began their questioning, and outside the
jurors’ presence, the prosecutor asked the trial court not to strike the
question about crime in families to which it had sustained an objection. The
prosecutor stated, “I have asked similar questions of other individuals [who]
are in gang-infested areas of our community, most notably Antioch. The
individual who came from Pittsburg volunteered himself. [¶] Other
individuals from Richmond, I’ve asked the same questions to see if they will
openly answer them in a candid manner, and that was what I was
attempting to do with this particular juror, and testing whether or not—
certainly they can observe what is going on in what is well known as a crime-
ridden community in Contra Costa.”15
The trial court responded that the objected-to question was about
whether “crimes run in families,” and “some people with experience in
Richmond do know [there are] certain families that have had that reputation.
15 Juror 211 was part of the second group to be questioned. The only
other prospective juror in her group from one of these areas, a woman from
Richmond, was not questioned about the city. This juror indicated on her
questionnaire that Richmond was “no longer [a] good community . . . because
of drugs, killing[,] etc.” A male juror from the first group who lived in
Pittsburg and had also lived in Bay Point and Antioch mentioned during voir
dire that one of his neighbors was affiliated with a gang and shootings
regularly happened outside his house. And Juror 142, a woman from the first
group who was one of the two Black jurors ultimately seated, had lived in
Pinole for 17 years but lived in Richmond for 30 years earlier in life. In
response to the question about how she would describe the area where she
was raised, she stated, “Family oriented.” During voir dire, however, she
agreed with the prosecutor’s statements that Richmond was “very different”
than it had been, that there was more gang activity, and that “although there
might be this family atmosphere, sometimes the family atmosphere[] can be
criminal activity, as well.”
23
I don’t know if that’s people just in the criminal justice system or people in
Richmond, but I’m aware of that, and maybe you are probing that.” The
court stated the prosecutor was entitled “to poke a hole a little bit” in Juror
211’s positive description of Richmond, which it characterized as “provok[ing]
some pretty serious questions. . . . [¶] Within the press, with[] every person
who talks about Richmond, from police officers who are trying to be involved,
from teachers, from their political officials, that is a description [with which]
I don’t necessarily say that they would all agree.” The court explained that it
had nevertheless sustained the objection because of the question’s “phrasing,”
which “could have been misconstrued.”
Whitley’s counsel, who made the objection, observed that the amount of
time the prosecutor spent questioning Black jurors compared to other jurors
was “extraordinarily lopsided.” Counsel said, “I don’t know if [the prosecutor]
lives in Richmond or not, but she certainly has her opinions. The fact that
[Juror 211] doesn’t share those opinions is not proper [grist] for this
particular voir dire mill. [¶] [The prosecutor] doesn’t like what she hears, so
be it. That’s not a reason to excuse someone for cause. Everybody lives in all
kinds of different socioeconomic areas. Just because someone is poor doesn’t
mean they are not happy. Just because someone is poor doesn’t mean they
don’t have a strong family. [¶] And for her to take her prosecutorial, white-
woman attitude about what this woman in her opinion should respond to her
questions is totally improper.”
Subsequently, the prosecutor challenged Juror 211 for cause, arguing
that it appeared the juror “was being less than truthful in her answering.”
After noting that no other juror failed to sign the questionnaire under penalty
of perjury, the prosecutor observed that when the trial court asked Juror 211
to affirm her answers were truthful, “she actually looked down. She look[ed]
24
up, she paused, and then she finally answered the Court’s question, ‘yes.’ ” In
addition, the prosecutor identified as her specific concern the fact that
Juror 211 had indicated on the questionnaire that none of her family
members had been the victim of a crime but then disclosed during voir dire
that her cousin was murdered. The prosecutor stated, “[A]fter continuous
prodding, eventually, she was able to say ‘yes,’ and it wasn’t a crime as if it
was a stolen vehicle or mail theft, but it’s the murder of her cousin.”16
Silas’s counsel challenged the prosecutor’s description of how Juror 211
responded when asked to affirm her questionnaire under penalty of perjury.
Suggesting that “if there’s such an issue with [the juror’s] response that
should have been put on the record immediately rather than four hours
later,” Silas’s counsel stated, “I didn’t see anything remotely [like] what [the
prosecutor] saw as far as that goes. I don’t think [Juror 211] is even a close
call. I’m concerned that maybe this is being set up for a possible defense to
future challenges when we get to do peremptories by making a cause
challenge to an African-American juror. I don’t think it’s close. I’m not sure
it’s being done in good faith.”
The other defense attorneys also expressed concern that the
prosecutor’s challenge was racially motivated, with Whitley’s counsel
observing that “[i]t’s so blatant what is occurring here.” Among the
circumstances noted were that another, non-Black juror failed to disclose on
her questionnaire that her son witnessed a crime, but the prosecutor did not
mention this in challenging that juror for cause; that the prosecutor spent
approximately a third of her time for voir dire questioning Juror 211, whom
16 It is unclear what “continuous prodding” the prosecutor referred to,
as the first and only time the prosecutor asked whether a family member had
been the victim of a crime, Juror 211 immediately answered, “Yes.”
25
Chaney’s counsel described as “bright, responsive, friendly[,] and . . . not . . .
evasive at all”; and that the prosecutor “spent no time whatsoever”
questioning the non-Black juror in Juror 211’s group who also lived in
Richmond about her views or whether “she . . . had relatives in the whole
thing,” and “the only other juror [who] was asked anything about Richmond
was another African American in our panel yesterday” (Juror 142).
The trial court denied the challenge for cause. In doing so, however,
the court disagreed with defense counsel that it was “not close,” stating, “I
had issues with this juror as far as just her competency, her willingness to
serve as an unbiased juror. First, coming in over a half an hour late. I
understand her explanation. The lack of the signature on the questionnaire
and some of her responses on the questionnaire seemed to be problematic.
So, on the other hand, she consistently said she could be fair. [¶] And
although it’s neither here nor there, but I see [a] clear peremptory challenge.
She does seem to be very defense-oriented in her responses, as well as her
questionnaire.”
Silas’s counsel asked the trial court to clarify its statement that
Juror 211 was “defense-oriented,” and the court responded that Juror 211
had been “very animated in her body language that she would be vigilant in
presuming the police don’t do their jobs and came off incredibly defense-
oriented” in her written and oral responses as well. Silas’s counsel then
asked that observations of jurors’ body language be put on the record as they
occurred, because peremptory challenges would not be done for another
month. The court stated it was keeping “thorough notes during this process,”
including about body language, to help it comply with Batson/Wheeler.
Although the prosecutor said she was not obligated to put her
observations about jurors on the record, she nevertheless responded to
26
defense counsel’s “claims of disparate questioning.” Initially, she
inaccurately noted that “no defense attorney asked questions of
[Juror 211].”17 She then stated that the other Black juror questioned about
Richmond, Juror 142, was from Pinole but had indicated familiarity with
Richmond, “[s]o there hasn’t been disparate questioning amongst individuals
of those particular areas.” The prosecutor concluded by objecting to “these
defense attorneys . . . spouting off to their clients about how [she is] a racist,”
saying it was “a violation of [the] Business and Profession[s] Code.”
The following day, the trial court offered several remarks about the
“kind of heated battle . . . we descended into yesterday evening . . . [about]
race and the topic of race relations, of how in particular African-Americans
are treated in our country by the police and by others.” The court
emphasized that it was doing its best to be “fair” and “evenhanded,” and it
took responsibility for not intervening quickly enough when the dialogue
between the attorneys became hostile. The court admonished Whitley’s
counsel for his comments about the prosecutor, calling them “unfair,
inappropriate[,] and unprofessional,” and directed the attorneys to make a
record of their concerns instead of “attacking the person who is doing it.”
Michaels’s counsel asked to make a record of his objections to the
questioning of Juror 211. He said, “[W]hat I understood the prosecutor to say
is that [the juror’s] response about her views of Richmond, that she described
it as hopeful, that there are educational opportunities, and that people were
being uplifted, that [the prosecutor] took that as a sign that this woman was
disingenuous and not forthright in her questionnaire. [¶] That concerned me
17Two defense attorneys immediately objected to this statement as
untrue. In fact, Silas’s counsel and Chaney’s counsel also questioned
Juror 211.
27
enough, but . . . I took the Court’s comments to be sort of validating that view
of Richmond.” Counsel noted that he had grown up in Richmond, and he
observed that several positive changes had occurred, including a substantial
decrease in the crime rate and progressive policies to benefit the community
economically. The trial court responded that it thought “it was an
appropriate area for [the prosecutor] to make inquiry” given “other
countervailing, . . . commonly held perceptions of Richmond,” but agreed
there had been positive developments and that the city’s general reputation
“perhaps is no longer deserved.”
The prosecutor subsequently questioned another juror, a white woman
who had lived in Antioch for over 30 years and ultimately sat on the jury,
about the city’s changes over time. The prosecutor asked, “Over that time
that you’ve stayed there, have you seen at least the criminal area of Antioch
change over the period of time of 32 years?” The juror answered
affirmatively, and when the prosecutor asked how the city had changed, the
juror responded, “Just the activity that goes on in the neighborhoods that
used to be much nicer. The writing on the streets, the corners, the markings,
the litter. It’s just minor things to major things.” The prosecutor did not
question the juror further about this topic.
Outside the jurors’ presence, Whitley’s counsel objected to this
questioning on relevance grounds. Stating that she was testing the jurors’
“ability to perceive what is around them” as relevant to circumstantial
evidence, the prosecutor explained:
“There’s certain hotbeds of criminal activity in our county.
I happen to know them because of gang crimes here within
Contra Costa, and Antioch is one of them. That’s become infested
with certain areas.
28
“Obviously, we’ve been talking heavily about Richmond and
being able to see whether or not there’s observations of decline or
change in crime or the fact that gangs have infiltrated certain
areas.
“The same is true that I’ve asked for Pinole because the
close connection to Richmond and in the news in that particular
area. The same is true for Pittsburg for the period of 1980
through the late 1990s. I’m reviewing [the jurors’] background as
to what cities they lived in and for what period of time.
“For those jurors, which there’s relevancy to that, that they
would have seen that decline or the [increase] of violence, I’m
testing them to see if they are aware of it in their own area. I
think that it goes directly to whether or not they will be [able] to
pick up circumstantial evidence in this case from the witnesses,
from their observations about the fact that they believe these
individuals were gang members because they were constantly
together. They were selling drugs together, they had similar
tattoos and all of that information.
“So I do believe it’s a valid test of whether or not they can
actually apply circumstantial evidence, and it’s one area in which
I am drawing those deductions from.”
The trial court overruled the objection, agreeing with the prosecutor
that the questioning was relevant because it went to whether jurors could
evaluate circumstantial evidence. The court cautioned the prosecutor,
however, that when questioning jurors about the areas they lived in she
should “tie it in and talk to them about circumstantial evidence. Actually tie
it into whether or not they can be fair.”
Subsequently, Michaels’s counsel voiced concern that the prosecutor’s
reason for questioning Juror 211 on this subject was different than the
prosecutor’s reason for questioning the juror from Antioch. Specifically,
whereas “[w]ith regard to [Juror 211] . . . , the prosecutor’s reasoning for
delving so deeply into her questions about Richmond [was] a belief based on
29
the answers in the questionnaire that a juror was not being forthright
because she lived in an area that was by the prosecutor’s determination
crime-ridden,” with regard to the other juror the rationale was “to test the
juror’s ability to perceive circumstantial information around them and then
whether they can . . . deduce from that criminal activity.” Chaney’s counsel
also expressed concern that the prosecutor’s “leading questions about the
terrible crime problem in Antioch” were improperly presenting negative,
inadmissible evidence to the prospective jurors. Ultimately, the trial court
ruled that the prosecutor could continue to ask such questions.
After several more days of voir dire, the trial court and parties returned
to this issue. Whitley’s counsel argued that the prosecutor’s questions about
crime running in families and changes in particular cities over time were “too
close to the issues in this particular case,” which included the conspiracy
charge where “[t]he conspirators happen to be members of a family” and the
prosecutor’s “theory of San Francisco transplants bringing criminality and
gang problems to previously tranquil communities.” Counsel argued that
such “questions have absolutely no relevance to any cause challenge,” instead
“prejudic[ing] the defendant[s’] case [by] inviting a bias to enter into the
juror[s’] assessments of actual evidence” and “set[ting] the stage for a
disingenuous reason for an exercise of a peremptory challenge.” Although the
prosecutor’s “subsequent rationale for these Richmond and Antioch questions
was that [they] would test the jurors’ ability to follow the circumstantial
evidence instruction,” there were many other examples of circumstantial
evidence the prosecutor could use to explore this area without resorting to an
example that could bias the jurors. Whitley, joined by the other defendants,
then moved to prohibit the prosecutor from asking further questions in this
vein.
30
In response, the prosecutor stated she offered the rationale for asking
Juror 211 about the juror’s community to explain a cause challenge. On the
other hand, the rationale for asking the Antioch juror similar questions was
offered when “the Court’s question . . . was relevancy, not a cause challenge.”
The prosecutor then explained that such questions were intended not just to
test jurors’ views of circumstantial evidence but also “to test their openness
with . . . people, and in particular, asking questions about their community
tend[ed] to tell [her] a lot about a person. It says whether or not they’re self-
aware. It says whether or not they’re aware of what’s in their community. It
[told her] whether or not they’re making rational conclusions based on that,
whether or not they are piecing things together that perhaps they are
watching crime go up in their neighborhood. It also help[ed] [her] test
whether or not, for instance, someone might have been fully forthcoming on a
particular questionnaire and [she] want[s] to delve further into that.” The
prosecutor concluded by stating, “[T]here’s been a number of Hispanic jurors
who have been through here and white jurors from Richmond and the
Antioch area that I’ve been doing the same questioning. . . . As soon as one of
them acknowledge[s] to me that there is a change in their community in
those areas which I happen to know well because of my area of where I
practice, that I don’t question further. My assessment is done.”
The trial court granted defendants’ motion, ruling that the prosecutor
could no longer question prospective jurors about their understanding of
circumstantial evidence by focusing on changes in their neighborhoods. The
court indicated that the prosecutor’s questioning of Juror 211 on this topic
“made sense,” since that juror’s view of Richmond was significantly different
than the city’s negative reputation, even if that reputation was no longer
entirely deserved. With subsequent jurors, however, the questioning was “too
31
close to home” and amounted to “pre-trying the case.” Thus, while all the
parties could ask questions about areas involved in the case, they could not
do so as a means of exploring circumstantial evidence.
The Contra Costa County District Attorney’s Office’s history of
Batson/Wheeler violations also arose at the same hearing. The discussion
included a particular prosecutor’s repeated Batson/Wheeler violations. (See
Currie v. McDowell (2016) 825 F.3d 603, 605–606 [granting habeas relief for
prosecutor’s third violation in same case].)18 The trial court responded that
although the Currie prosecutor might have a history of violations, the court
did not find the same true “with regard to the entire D.A.’s office.” The court
explained that during its previous experience as a public defender in the
county, “working across from numerous members of the Office of the District
Attorney, [it] did not find that there was any pattern, whatsoever, of them
excluding African-American jurors from their juries.”
The prosecutor later exercised a peremptory challenge against
Juror 211, prompting a Batson/Wheeler motion. The trial court began by
emphasizing that it “[did] not and [had] not found [the prosecutor] to have a
discriminatory purpose in her challenges, neither last trial nor this one,
either for cause [or] her peremptory challenges.” It also reiterated its finding
that neither the prosecutor nor the Contra Costa County District Attorney’s
Office had “a history of [or] reputation for Batson/Wheeler violations.”
As the trial court began to announce its ruling of no prima facie case,
Chaney’s counsel interjected to argue that the prosecutor’s conduct during
18Chaney’s counsel later cited another case, People v. Allen (2004)
115 Cal.App.4th 542 (Allen), in which Division Three of this court concluded
that the trial court erred by accepting a different Contra Costa County
prosecutor’s “meaningless explanation” for a peremptory strike of a Black
prospective juror. (Id. at pp. 545, 553.)
32
the 2014 Arnold-Chaney trial and defendants’ 2015 mistrial was relevant to
the determination. According to counsel, “[T]he sole African-American seated
on [the Arnold-Chaney] jury was the holdout vote for not guilty on several of
the significant charges. [¶] [The prosecutor] attempted quite vigorously to get
that juror kicked off for alleged failure to deliberate instead of accepting that
this was . . . not a meeting of the minds.[19] [¶] That context led into the trial
for these four codefendants last fall wherein there were six African-
Americans after hardships who made it into the process of jury questioning.
[The prosecutor] used peremptory challenges on all six of the African-
Americans in the main jury. Defense exhausted challenges. We then did
encounter one additional African-American woman in the process of getting
jurors for the alternate seats, and one African-American was seated as one of
the six alternates.”
Moving to the current trial, Chaney’s counsel observed that the
prosecutor “made 19 contested cause challenges, [10] of which were against
African-Americans. Six of her challenges against African-Americans were
granted and four of her challenges against African-Americans were denied.
[¶] We have, over the course of the 16 groups, encountered 22 African-
19 The record supports this characterization of events at the 2014 trial,
which was conducted by the same prosecutor before a different judge. After
deliberations began, one of the jurors reported that she felt “intimidated” by
the other jurors and pressured to change her vote. The juror explicitly tied
this experience to her race, stating, “It’s really hard for me to sit there and
voice my opinion as an African American and be heard without feeling like
I’m racist.” The prosecutor argued that the juror should be replaced for
misconduct because she was no longer deliberating. The trial court
ultimately declined the prosecutor’s request, finding that the jury’s
agreement on several counts showed that deliberation had occurred for a
reasonable amount of time and the juror at issue “simply [did] not agree with
the other jurors” on the remaining counts, which was “simply a hung jury.”
33
American jurors [for voir dire]. . . . [¶] There were five for which there was no
challenge made. There were five for which there was a stipulation for cause.
There were six for whom the district attorney challenge was granted. There
were four for whom the district attorney challenge was denied, two of whom
later also received hardships. There was one who was ruled ineligible by the
Court based on a prior felony. And then there were three that were excused
for hardship.”
Finally, Chaney’s counsel pointed out that the previous year, in a trial
of two Black defendants for murder, the prosecutor “struck or attempted to
strike an African-American juror. A Batson[/]Wheeler challenge was made,
and the [prosecutor’s] . . . challenge was denied and the juror was reseated.”
Counsel offered the relevant minute order and a portion of the reporter’s
transcript from that trial, People v. Cater and Burks (Super. Ct. Contra Costa
County, 2015, No. 5-131405-3) (Cater), and they were marked for
identification.20
The proffered Cater documents show that in May 2015, the two
defendants in that case brought a Batson/Wheeler motion after the same
prosecutor sought to exercise a peremptory challenge against a Black
prospective juror. The judge did not rule on whether a prima facie case had
been made, instead asking the prosecutor to respond to the motion. The
20 The prosecutor objected that Chaney’s counsel had not provided the
full transcript of the Batson/Wheeler challenge from Cater, and the trial
court indicated that it wished to see a complete transcript. When later
making findings on defendants’ Batson/Wheeler motions in this case, the
court indicated that it had “reread the [Cater] transcript several times.”
Although the Cater minute order and transcript were not included in our
record, Cater was appealed to Division Three of this court (case no. A146678),
and we procured the relevant minute order and transcript from the record in
that case.
34
prosecutor stated she had come to believe that one of the defendants, who
was in his early twenties at the time of the crimes, was going to testify. The
prosecutor was worried, given the defendant’s youth, about sentiments the
challenged juror had expressed about her 20-year-old Black son. Specifically,
the prosecutor was worried that the juror would “recognize[] that her son at
any time could be in a seat where one of [the defendants] are or with the
victim in this case.” The prosecutor said that after “struggl[ing] long and
hard,” she could not conclude “with certainty that [the juror would] not rely
on her visceral mother factor in connection with the defendants,” and she
thought there was “a chance . . . that the mother factor . . . will overcome her
ability to be an impartial decider of the facts as [one of the defendants] is
going to testify to them.”
The Cater judge ruled that there was not “a sufficient nonrace-based
[reason] for that particular challenge,” and she found that “the challenge
[was] not justified.” She explained, “I believe what [the challenged juror] said
was that she as a mother of a similarly aged son to the defendants could see
herself in the position of either side, . . . being the mother of the victim of a
crime or the mother of someone accused of a crime, and she didn’t weigh that
either way. [¶] . . . I think that her answers across the board were that she
could follow the law, that she did not favor one side over the other, and she
could see herself in either role. So I don’t think there’s a sufficient basis for a
challenge so I’m going to deny the challenge.”
Subsequently, the prosecutor asked for clarification of the ruling. After
noting that the seated jury had at least three Black members, the prosecutor
stated she was “at a loss” to understand why the judge had not accepted her
reason for striking the challenged juror, particularly since another juror who
had said it would be hard to set aside her “maternal instinct” had been
35
excused for cause. The judge responded that the juror challenged for cause
had indicated she would favor the defense, whereas the challenged juror had
noted that her feelings “could put her in either camp.” Addressing the
prosecutor, the judge also stated, “[M]y findings don’t necessarily equate to
misconduct on your part. I have to evaluate whether or not that particular
challenge was race neutral. I thought that based on your explanation
compared to her answers, it didn’t reach the criteria that is necessary.”
The trial court here stated that after hearing what Chaney’s counsel
had to say, its “comments still [held] with regard to what [it was] aware of
with regard to [the prosecutor]” and “with regard to the [District Attorney’s]
office.” It then stated that, even assuming the prosecutor had made an
improperly “race-based challenge” in the trial before the other judge, it “still
[did] not find a prima facie case with this particular Juror 211.” The court
offered the prosecutor a chance to “supplement the record,” and the
prosecutor stated she might do so at the end of jury selection. The prosecutor
did, however, note that she was “adopting what was [her] cause challenge
basis behind Juror 211.”
At a subsequent hearing, the prosecutor reiterated the bases of her
challenge for cause to Juror 211, which were the juror’s “hesitation” to affirm
the answers to her questionnaire under penalty of perjury and her failure to
disclose until voir dire that her cousin was murdered. The prosecutor also
returned to the juror’s statement in her questionnaire “that Richmond is a
family-oriented community of hope with love and many opportunities. No
matter what these [defense] attorneys want to say, the unfortunate truth is
Richmond is often a trap to those who are socioeconomically deprived. It’s
not a community of hope. It’s a community of murder.” The prosecutor also
commented on the juror’s questionnaire answers indicating that “[s]he’s
36
never known anyone arrested or investigated although she has a lifelong time
in Richmond.”21 The prosecutor said, “I simply can’t see this as possible given
the amount of crime that comes from there. Me knowing it because, in fact,
that is what I’ve dedicated my career to.”22
The prosecutor offered numerous other reasons for the peremptory
challenge as well. Juror 211 had “circled ‘strong’ multiple times” on her
questionnaire, which made the prosecutor question whether the juror could
apply the concept of reasonable doubt. The prosecutor had also seen the juror
21In fact, the questions at issue asked whether jurors themselves, a
family member, or a person “close to [them]” had been arrested or
investigated for a crime, not whether the jurors knew anyone who had been.
22 At the outset of this hearing, the prosecutor gave a speech defending
herself from the defense’s accusations that she was a “racist,” “affluent white
prosecutor.” To give the trial court and “an appellate court . . . some
background to make some decisions about [her] use of peremptory
challenges,” the prosecutor explained, “I am, in fact, not an affluent white
prosecutor. I was born and raised in one of the poorest parts of Fresno. . . .
My mother was a teacher . . . in the lowest socioeconomic portion of Fresno.
It was almost 98 percent Black. [¶] My parents decided to collect their money
to be able to give these young men and women experiences. And from the
time that I was about three to the time that I was ten, . . . these Black high
schoolers . . . became the individuals who babysat me, who[m] my mom
basically took under her wing to be able to afford them and give them
opportunities in life.”
The prosecutor also noted that she had “dedicated the majority of [her]
career to Black-on-Black crime.” She stated, “And what is abundantly lost on
these [defense] lawyers . . . is that in the back of my mind and when I return
to my office every day, I have the picture of two young African-Americans
who were taken away. Not only do I have them sitting there, but I deal daily
with the fact that the key eyewitness in this case is a young African-
American lady. I have to deal with the families of two Black individuals who
were taken from us, daily. [¶] I work 16 hours a day. I don’t get paid one
shred more by choosing to put in this additional time. And I do it because
there is a complete violence that is out of control that is taking young
African-Americans from us.”
37
“roll[] her eyes” at two other potential jurors. Relatedly, the juror had
written on her questionnaire “that she wanted to watch law enforcement to
make sure that they were doing their job ethically, obviously overly
scrutinizing law enforcement even though she claim[ed] to have had no issues
with them.” Finally, according to the prosecutor, the juror “seemed almost
overly eager to be here, to turn to each of us and to respond to us and to nod
her head. Quite frankly, I think she was getting on this jury to be able to
skew the verdict.”
The trial court did not address individually the prosecutor’s proffered
reasons for striking Juror 211. Instead, as discussed in more detail above,
the court later agreed that both Juror 211 and Juror 275 “had a myriad of
anti-prosecution issues” the prosecutor had identified, meaning the cause
challenges for both jurors were close.
3. Juror 313
Juror 313 was a 51-year-old Black woman who was examined after
Jurors 211 and 275. She had a B.A. in Pan-African studies and owned an
executive recruitment service. She had lived in Richmond for over 30 years.
She wrote on her questionnaire, “I describe Richmond as a small town in a
good location (easy access to other Bay Area locations). I think of it as a
lovely community with many good people. I’ve also been told that it is/was
the murder capital of the state. That has not been my experience.”
Juror 313 specified that she had lived in “unincorporated East
Richmond Heights” for her entire time in Richmond. Referring to the
statement of another juror in Juror 313’s group, who had lived in Richmond
for over 50 years, that the city had “gone downhill,” the prosecutor asked
Juror 313 whether she thought “there has been this flux of criminal activity
or . . . [it had] stayed the same.” Juror 313 responded, “I think, based on
38
what I’ve been told and what I’ve heard, that there has been a change.
Personal experience, it’s been exactly the same.”
The prosecutor also asked Juror 313 about her ability “to take a look at
patterns of particular individuals, maybe clothing they were wearing or
colors they had or certain tattoos that seemed to repeat,” to determine “what,
if anything, the significance of that repeat pattern is.” The juror said she
would be able to do this. The prosecutor then asked whether the juror had,
“anywhere in Richmond, observed these particular repeat patterns, maybe
even just passing through for your work.” After clarifying that the prosecutor
was referring to “tagging and stuff,” the juror responded that she had not
noticed patterns and agreed she was “just not looking for them.”
Juror 313 also indicated on her questionnaire that she was on a jury
that reached a verdict in a DUI case around 1985. During voir dire, Silas’s
counsel questioned her about that experience. Although counsel stated he
did not want to know what the verdict was, the juror’s responses established
that the jury had returned a verdict of not guilty. She said, “Well, so we
looked at the evidence and even though we believed one thing was true, we
had to come back with a verdict that didn’t speak to that.” After stating that
the outcome would have been different if the evidence “had been handled
appropriately,” Juror 313 elaborated, “[T]hey had the blood, took the blood,
and they didn’t test it for two years. And then they brought this scientist in
and said this is what can happen to blood [¶] . . . [¶] if it’s not tested for
alcohol for two years.” Though the defendant had “said he lost count after
[10] drinks,” the jurors “would have been speculating that his blood alcohol
was a certain level, but [they] didn’t have that evidence so [they] couldn’t
convict on that.”
39
The prosecutor exercised a peremptory challenge against Juror 313,
and the defense made a Batson/Wheeler motion. The trial court found that a
prima facie case of discrimination was established. The prosecutor responded
that she had excused Juror 313 “because she was in a not guilty DUI verdict
based on the fact that, quote: The blood [sample] was not tested for two
years. Even though we all knew one thing, we returned the opposite verdict.
[¶] And then went on to say that the person had admitted [he] had
[10] drinks but that would be speculation. This juror does not understand
circumstantial evidence. And based on her not guilty verdict biting on a
commonly used DUI defense, which is essentially fabricated, that’s my basis
for excusing her.”
The trial court stated it was “struggling with this challenge.” The court
noted that the defense had brought Batson/Wheeler motions when “jurors
who clearly have extreme prosecution issues and should be challenged by the
People have been,” and the court saw the fact Juror 313 had “come back with
a not guilty verdict in a prior jury trial” as “a prosecution problem.” On the
other hand, Juror 313 was “unique” in this respect, making a comparative
analysis difficult.
The trial court ultimately “found [the prosecutor] to be credible.” After
noting that a juror’s vote for acquittal in a prior case “is a valid race-neutral
reason to strike” and “made the prosecutor’s peremptory challenge almost a
foregone conclusion,” the court stated that its comparative analysis did not
reveal any other jurors the prosecutor had passed who had suggested they
had also voted to acquit in a previous trial.
Even though the trial court had already found credible the prosecutor’s
reasons for striking Juror 313, the prosecutor offered additional reasons for
the strike at the subsequent hearing where the peremptory challenges to
40
Jurors 211 and 275 were also discussed. The prosecutor observed that
although Juror 313 acknowledged hearing that “Richmond was the murder
capital,” the juror stated “that was not her experience.” Drawing a
comparison to Juror 211, the prosecutor observed that Juror 313 was likewise
“an individual who either chooses not to accept reality or chooses not to see
what’s around her. She was oblivious to the circumstantial evidence in her
community of graffiti, of colors of . . . jerseys or tattoos, the heart of the gang
evidence which [the jurors] are going to be asked to consider here in this
trial.” These circumstances, in combination with the juror’s statements about
her previous jury service, led the prosecutor to conclude that the juror did not
understand circumstantial evidence.
The trial court reiterated that it found the prosecutor was “credible in
giving a race-neutral reason for the peremptory challenge” and, therefore,
“the defendants ha[d] not shown purposeful race discrimination.” The court
also made specific findings that the prosecutor did not “spen[d] an inordinate
amount of time” questioning Black jurors as compared to jurors of other races
and that there was insufficient evidence “to conclude that the Contra Costa
County Office of the District Attorney has a reputation or extensive history of
juror strikes in violation of Batson[/]Wheeler.” Finally, the court stated the
peremptory challenge of Juror 313 “would likely not have given rise to a
prima facie case” if not for the information the defense provided about Cater
and Allen.
C. The Steps in Our Review
The approach to reviewing a Batson/Wheeler claim on appeal depends
upon the rulings below. “[A]n 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 the prosecutor to state reasons
41
for excusing the juror, but refrains from ruling on the validity of those
reasons.” (Scott, supra, 61 Cal.4th at p. 386.) Likewise, if the trial court
finds no prima facie case of discrimination, the prosecutor has an opportunity
to provide nondiscriminatory reasons for the peremptory challenge, and the
trial court determines that those reasons are genuine, “an appellate court
should begin its analysis . . . with a review of the first-stage ruling,”
proceeding to review the third-stage ruling only if it disagrees with the trial
court’s finding of no prima facie case. (Id. at p. 391.) If the trial court finds
that a prima facie case exists, makes no first-stage ruling, or finds no prima
facie case only after the prosecutor offers reasons for exercising the challenge,
review is of the third-stage ruling. (See id. at pp. 387, fn. 1, 392.)
Scott identified certain circumstances in which this general approach is
altered, two of which are potentially relevant here. First, if “(1) the trial
court has determined that no prima facie case of discrimination exists, (2) the
trial court allows or invites the prosecutor to state . . . reasons for excusing
the juror on the record, (3) the prosecutor provides a reason that is
discriminatory on its face, and (4) the trial court nonetheless finds no
purposeful discrimination, the appellate court [still] begin[s] its analysis . . .
with a review of the first-stage ruling. In that (likely rare) situation, though,
the relevant circumstances, including the facially discriminatory justification
advanced by the prosecutor, would almost certainly raise an inference of
discrimination and therefore trigger review of the [third-stage ruling].”
(Scott, supra, 61 Cal.4th at pp. 391–392.)
Second, there is “an additional wrinkle when the appeal involves
multiple Batson/Wheeler challenges. Where 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
42
excusal of another juror constituted unlawful discrimination [citations], the
appellate court may likewise begin its review . . . as to the first juror by
evaluating the sincerity of the proffered reason.” (Scott, supra, 61 Cal.4th at
p. 392.) In other words, where the trial court has found that a prima facie
case exists as to at least one challenged juror, requiring review of the trial
court’s third-stage ruling, the appellate court can skip directly to determine
whether purposeful discrimination was proven as to any juror for whom the
trial court found there was not a prima facie case.
Here, the trial court purported to make only a first-stage ruling as to
Juror 275, and it did so before the prosecutor put on the record her reasons
for the peremptory challenge. But the prosecutor previously relied on some of
the reasons offered for the peremptory challenge in challenging this juror for
cause, and the court credited some of them even though it did not expressly
rule that defendants failed to prove purposeful discrimination at the third
stage. Specifically, the prosecutor’s reasons for the peremptory challenge
were that Juror 275 was “openly hostile” when questioned about Black Lives
Matter, refused to admit that “there is a contingent within [the movement]
which destroys property or . . . riots,” had a negative opinion of law
enforcement, did not nod when asked if she would treat law enforcement
witnesses like other witnesses, arrived late, and “wanted absolutely nothing
to do with this case.”23
23The prosecutor also mentioned Juror 275’s previous job as a security
guard when listing the reasons for the peremptory challenge, stating, “She
was a former security guard in a hospital and a refinery, and the defense
claims that that’s law enforcement. I wish they could see my caseload and
see the number of security officers that I have pending on murder trial.” In
our view, the prosecutor was responding to the defense’s claim that Juror 275
had a law-enforcement background, not stating that the juror’s prior job was
a separate reason for exercising the strike.
43
Of these reasons, the prosecutor had previously relied on reasons
related to Black Lives Matter in making the challenge for cause, and in
ruling on the earlier challenge the trial court had agreed that Juror 275 did
not click with the prosecutor. The court had also agreed that the juror was
reluctant to be there. Moreover, the court explicitly tied its finding of no
prima facie case to how “extremely close” it came to granting the prosecutor’s
challenge for cause, and it found that the juror had “a myriad of anti-
prosecution issues” as “vocalized by [the prosecutor] and . . . observed [by the
court] during the cause challenge as well as today,” i.e., the day the
peremptory challenge was made. Thus, the court arguably credited most of
the reasons the prosecutor offered to justify both challenges to Juror 275,
effectively finding that the peremptory challenge was not exercised with
discriminatory purpose. In short, we conclude that the court made both a
first-stage finding and a third-stage finding, even though we derive the latter
from the court’s ruling on the challenge for cause.
In their original briefing, the parties disagreed about which stages of
review are implicated here. The Attorney General argued that we should
conduct a first-stage review of the rulings as to Jurors 211 and 275 and a
third-stage review of the ruling as to Juror 313. Defendants argued that the
prosecutor’s justifications for striking all three jurors were “so charged with
race that [they] fail to clear even the low hurdle of Batson’s second step,” a
claim that amici curiae joined with regard to Juror 275.24 Defendants also
urged that, since we must conduct a third-stage review of the ruling as to
24 The Roderick and Solange MacArthur Justice Center, American Civil
Liberties Union, American Civil Liberties Union of Northern California,
Office of the State Public Defender, California Attorneys for Criminal Justice,
and Lawyers’ Committee for Civil Rights of the San Francisco Bay Area were
granted leave to file a brief on behalf of defendants.
44
Juror 313, review of the challenges involving the other two jurors “may begin
with the third stage.”25
We are not persuaded by defendants’ arguments on this point. First,
assuming that we were otherwise required to conduct a first-stage review of
the ruling on Juror 275, the fact that the prosecutor “provide[d] a reason [for
the peremptory challenge] that is discriminatory on its face” would not justify
skipping to the third stage, even though it would likely lead to a third-stage
review as well. (Scott, supra, 61 Cal.4th at pp. 391–392.) Second, because we
need not evaluate the denial of the motion as to Juror 313 to determine that
reversal is required, it would be illogical to rely on Scott’s “additional
wrinkle” to skip to a third-stage review of the claim involving Juror 275
merely because there happened to be a third-stage ruling on Juror 313. (Id.
at p. 392.)
Accordingly, we start by reviewing the trial court’s finding at the first
stage that defendants failed to raise an inference of discrimination in the
striking of Juror 275. Because we conclude that the trial court erred, we next
address whether the prosecutor’s reasons for the peremptory challenge were
facially race-neutral. Because we conclude these reasons were technically
neutral, we finally address whether the court erred in crediting them. We
conclude that it did, as its determination that defendants failed to show
25At our request, the parties submitted supplemental briefing on
whether any of the trial court’s comments could be construed as a third-stage
ruling on Juror 275. The Attorney General agreed that it would be
appropriate to conclude the trial court made a third-stage finding based on its
crediting of the prosecutor’s reasons for challenging the juror for cause. And
although defendants apparently misunderstood our question to be whether
the court’s first-stage ruling could be affirmed based on the prosecutor’s
reasons for challenging Juror 275 for cause, to which we agree the answer is
no (see Scott, supra, 61 Cal.4th at p. 390), their main briefing clearly
contemplated the possibility of conducting a third-stage review.
45
discrimination by a preponderance of the evidence “was unreasonable in light
of the record of voir dire proceedings.” (Gutierrez, supra, 2 Cal.5th at
p. 1172.)
D. The Trial Court Erred by Finding No Prima Facie Case of
Discrimination in the Striking of Juror 275.
1. The standard of review
We begin by addressing the standard of review applicable to a trial
court’s first-stage ruling, a subject that lacks clarity in the case law. The lack
of clarity stems from Johnson, in which the United States Supreme Court
held that California courts had been applying too onerous a standard to
evaluate whether a prima facie case of discrimination was established.
(Johnson, supra, 545 U.S. at p. 168.) Before Johnson, California “require[d]
at step one that ‘the objector must show that it is more likely than not the
other party’s peremptory challenges, if unexplained, were based on
impermissible group bias,’ ” or, in other words, that there was a “ ‘strong
likelihood’ ” a given challenge was improperly motivated. (Id. at pp. 166,
168.) Johnson rejected the “ ‘more likely than not’ standard [as being] at
odds with the prima facie inquiry mandated by Batson,” under which a
defendant must produce only enough evidence to permit a trial court to draw
a “ ‘reasonable inference’ ” of discrimination. (Id. at pp. 166, 170, 173.)
Observing that the trial judge had stated the first-stage issue was “close” and
our state Supreme Court had called the prosecutor’s pattern of strikes
“suspicious,” Johnson concluded, “Those inferences that discrimination may
have occurred were sufficient to establish a prima facie case under Batson.”
(Id. at p. 173.)
Before Johnson, our state Supreme Court had unambiguously held that
a first-stage ruling was reviewed for substantial evidence. (People v. Alvarez
(1996) 14 Cal.4th 155, 196–197; accord Silva, supra, 25 Cal.4th at p. 384.)
46
The Court explained that although the ultimate ruling on a Batson/Wheeler
motion “broadly resolves a predominantly factual mixed law-fact question, as
a general matter, at least, it narrowly depends on the answer to a purely
factual question, viz., whether the prosecutor acted with the prohibited
intent—which in turn typically depends on the answer to another purely
factual question, viz., whether the prosecutor’s customary denial of such
intent is true [citations]. It follows that the determinations underlying a
ruling of this sort, that is, whether the defendant bore [the] burden of a
prima facie showing of the presence of purposeful discrimination and, if [the
defendant] succeeded, whether the prosecutor bore [the] consequent burden
of a showing of its absence, are themselves examined for substantial
evidence: they are each reducible to an answer to a purely factual question,
as identified above.” (Alvarez, at pp. 196–197.)
Once Johnson was decided, California appellate courts faced the task of
reviewing pre-2005 first-stage rulings where it was “unclear” whether the
trial court “applied the correct ‘reasonable inference’ standard rather than
the ‘strong likelihood’ standard.” (People v. Bonilla (2007) 41 Cal.4th 313,
342.) A few months after Johnson issued, our state Supreme Court
addressed a defendant’s claim that reversal was required because the trial
court had applied the incorrect, pre-Johnson standard. (People v. Cornwell
(2005) 37 Cal.4th 50, 72–73, disapproved on other grounds in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.) Cornwell explained, “Regardless of the
standard employed by the trial court, and even assuming without deciding
that the trial court’s decision is not entitled to deference, we have reviewed
the record and, like the United States Supreme Court in Johnson, . . . are
able to apply the high court’s standard and resolve the legal question
whether the record supports an inference that the prosecutor excused a juror
47
on the basis of race.” (Cornwell, at p. 73.) For the most part, post-Johnson
decisions by our state Supreme Court have applied de novo review to first-
stage rulings made before Johnson, either referring to Cornwell’s rationale
that it is a legal question whether the record supports an inference of
discrimination or simply stating that the independent standard of review
applies. (E.g., People v. Clark (2016) 63 Cal.4th 522, 566–567; People v.
Montes (2014) 58 Cal.4th 809, 854; People v. Hartsch (2010) 49 Cal.4th 472,
487.)
Notwithstanding its post-Johnson decisions, our state Supreme Court
recently stated that a first-stage ruling is reviewed for substantial evidence.
(People v. Battle (2021) 11 Cal.5th 749, 772, citing People v. Bonilla, supra,41 Cal.4th at p. 341.)26 While the Supreme Court has characterized the
applicable standard in different ways, we will follow its most recent
pronouncement in Battle and apply the substantial-evidence standard to the
ruling here. Since this standard is more deferential to the trial court, our
conclusion that the court’s first-stage ruling cannot be sustained would not
change if we applied the de novo standard.
2. Insufficient evidence supports the trial court’s first-stage
ruling.
Whether a defendant has established a prima facie case by
demonstrating that the totality of the relevant facts gives rise to an inference
of discriminatory purpose generally “depends on consideration of the entire
record of voir dire as of the time the motion was made.” (Scott, supra,
The majority of federal circuit courts, including the Ninth Circuit
26
Court of Appeals, have held that a trial court’s first-stage Batson ruling is
reviewed for clear error (Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 684–
685 [collecting cases]), the federal standard of review that applies to findings
of fact. (Escobar v. Flores (2010) 183 Cal.App.4th 737, 748.)
48
61 Cal.4th at p. 384.) Although we look at the full record, “certain types of
evidence may prove particularly relevant. [Citation.] Among these are that a
party has struck most or all of the members of the identified group from the
venire, that a party has used a disproportionate number of strikes against
the group, that the party has failed to engage these jurors in more than
desultory voir dire, that the defendant is a member of the identified group,
and that the victim is a member of the group to which the majority of the
remaining jurors belong.” (Ibid.)
“A court may also consider nondiscriminatory reasons for a peremptory
challenge that are apparent from and ‘clearly established’ in the record
[citations] and that necessarily dispel any inference of bias.” (Scott, supra,
61 Cal.4th at p. 384.) This principle does not authorize us to “rely on a
prosecutor’s statement of reasons to support a trial court’s finding that the
defendant failed to make out a prima facie case of discrimination. . . . [T]he
fact that the prosecutor volunteered one or more nondiscriminatory reasons
for excusing the juror is of no relevance at the first stage.” (Id. at p. 390.) We
may, however, rely on the prosecutor’s stated reasons to “bolster” a prima
facie case: “A proffered justification that is facially discriminatory must be
weighed with the totality of the relevant facts to determine whether they give
rise to an inference of discriminatory purpose and thus compel analysis of the
subsequent steps in the Batson/Wheeler framework.” (Id. at pp. 390–391.)
Here, the record contains a number of circumstances that give rise to
an inference of discriminatory purpose. To begin with, the way the
prosecutor questioned Juror 275 about Black Lives Matter was not neutral
and suggested an antipathy toward the movement. As amici detail at length,
and the Attorney General agrees, the prosecutor’s questions about Black
Lives Matter rested on misperceptions or biases. The movement is “based on
49
the premise that Black lives have worth and therefore must be protected and
allowed to thrive.” It has “engaged in and supported acts of protest and civil
disobedience” as a means to bring attention to threats to Black lives,
particularly police brutality. Property destruction, jury nullification, and
other illegal behavior are not “tactic[s] embraced by the broader movement.”
Rather, “[t]he nonviolent direct action and civil disobedience tactics employed
by Black Lives Matter reflect centuries-old traditions of Black civil rights
protest,” which have likewise been “falsely portray[ed]” as “lawless.” The
Attorney General “recognizes that the prosecutor’s questions to [Juror 275]
about [Black Lives Matter] were insensitive, to say the least, and were
inaccurate and inflammatory to the extent they linked the [Black Lives
Matter] movement to rioting and property destruction.” The possibility of a
discriminatory purpose is compounded because, after engaging in this biased
questioning, the prosecutor used Juror 275’s understandable negative
reaction to it as an alleged race-neutral reason for challenging the juror.
In addition, the prosecutor grounded her challenge for cause on a claim
that was not supported in the record. The prosecutor claimed that Juror 275
denied that some people cause property damage during Black Lives Matter
demonstrations. But, in fact, Juror 275 never denied this. The exchange
about Black Lives Matter shows that Juror 275 first thought the prosecutor
was asking if she agreed with property destruction, not if she agreed that
some people affiliated with the movement destroyed property. The juror
immediately clarified the prosecutor’s intended question and explicitly agreed
that property destruction had “happened” during demonstrations. When the
prosecutor again asked whether the juror “agree[d] or disagree[d] with that
type of behavior,” the juror reaffirmed that she did not “agree with people
destroying other[s’] property.”
50
Thus, the prosecutor’s insistence that Juror 275 had denied property
destruction was simply inaccurate, which the trial court recognized in
denying the challenge for cause. It observed, “[Juror 275’s] comments with
regard to Black Lives Matter, she did not—she said, ‘I don’t agree with the
property destruction.’ So it’s not as though she is stating that she supports
the actions that have been taken by some followers of the movement.”
These reasons related to Black Lives Matter for striking Juror 275 were
plainly tied to race, and in particular to the prosecutor’s negative
preconceptions of the movement. Even if these reasons were not “facially
discriminatory” such that they “almost certainly raise an inference of
discrimination” (Scott, supra, 61 Cal.4th at p. 392), they were sufficiently
race-related to “bolster” an inference of discriminatory intent (id. at p. 390).
Separate from the evidence directly related to Juror 275, other
circumstances also bolster an inference of discriminatory purpose. In the
2015 trial of the three male defendants and retrial of Chaney—which was
initiated shortly after the Arnold-Chaney trial ended when the only Black
juror voted to acquit Chaney on most counts—the prosecutor exercised
peremptory challenges against numerous Black jurors, resulting in no Black
members on the main jury. During the proceedings here, the trial court said
it was “on the fence or uncertain” about its denial of the Batson/Wheeler
motion as to one of the jurors in 2015.
The trial court in the proceedings at issue ultimately adhered to its
finding that the prosecutor did not violate Batson/Wheeler in the 2015 jury
selection process. But it erroneously believed it was free to disregard that
process. Governing law is clear that all relevant circumstances should be
considered when determining whether a prima facie case of discrimination is
established, and in retrospect some facts may take on significance that they
51
did not have at the time. Thus, the court was incorrect in saying that, even if
it “had found a Batson/Wheeler violation in the first jury selection,” its “task
[was] to give [the prosecutor] a fresh start as to what she has done
specifically in this selection process.” Prosecutors are not entitled to “a fresh
start” when it comes to deciding whether they have acted with a
discriminatory purpose in exercising peremptory challenges.
Moreover, there was evidence that the Contra Costa County District
Attorney’s Office in general, and this prosecutor in particular, had in the past
exercised peremptory challenges on the basis of race. Specifically, a
Batson/Wheeler motion was granted against the prosecutor in Cater, and
appellate courts had found that at least two other Contra Costa County
district attorneys purposely discriminated in jury selection. We recognize
that the trial court found that the District Attorney’s Office did not have a
history of discrimination and the prosecutor did not violate Batson/Wheeler
in the 2015 jury selection, indicating it did not find all of this evidence
suggestive of discriminatory intent. But the court also explicitly cited Allen
and Cater as essential to its finding of a prima facie case with regard to
Juror 313, both undercutting its statements about the District Attorney’s
Office’s history and recognizing the prosecutor’s own history weighed in favor
of an inference of discrimination.
Despite all of the circumstances that support an inference of
discriminatory intent, the Attorney General argues that the trial court’s
finding of no prima facie case was based on nondiscriminatory reasons “that
are apparent from and ‘clearly established’ in the record [citations] and that
necessarily dispel any inference of bias” under Scott, supra, 61 Cal.4th at
p. 384. We disagree.
52
The trial court justified its first-stage ruling by mentioning how close it
had come to granting the challenge for cause given Juror 275’s “myriad of
anti-prosecution issues” as observed by both it and the prosecutor. We
cannot agree that these professed issues sufficiently dispelled an inference of
discriminatory intent. First, Juror 275’s failure to nod her head when the
trial court questioned her group about following court instructions regarding
witnesses’ testimony did not establish a solid reason for the prosecutor to
strike her. The question to the group was not focused, as the court later
assumed to the contrary, on law enforcement testimony. Instead, the
question was whether jurors could generally “follow [the court’s] instruction
with regard to evaluation of witness testimony.” Before asking the question,
the court explained the need to evaluate witness credibility for almost two
pages of the reporter’s transcript, discussing not just police officers but also
expert witnesses as examples. Thus, the failure to nod did not indicate a
reluctance on Juror 275’s part to follow instructions regarding law
enforcement testimony in particular. Moreover, when later questioned about
not nodding, Juror 275 specifically denied that she had “a concern . . . about
police officers should they testify” and agreed she would “treat [such]
testimony as [she] would anybody else’s testimony.” While a juror’s
hesitation to evaluate law enforcement testimony the same way as other
testimony might in many situations dispel an inference that a challenge to
that juror was discriminatory, the record here does not reflect that Juror 275
actually demonstrated such hesitation.
Nor did Juror 275’s other responses to questions about law enforcement
officials evince a bias against them or give rise to a legitimate
nondiscriminatory reason to strike the juror. In making the challenge for
cause, the prosecutor faulted Juror 275 for her supposed failure to volunteer
53
“further clarification as to what . . . her particular views were about law
enforcement” until “she finally did offer up that there [were] issues about
punishment.” But Juror 275’s view that Black defendants tend to be
sentenced more harshly does not reflect any attitude about law enforcement.
Instead, it reflects an attitude about the legal process and courts. Nor do we
think that striking a juror for holding such an explicitly race-tied view
constitutes a nondiscriminatory reason that necessarily dispels an inference
of bias.
To the extent Juror 275 had a negative response to the prosecutor’s
race-related questions, the response was insufficient to defeat a prima facie
case of discrimination. Any such response was in reaction to questioning that
was, as the Attorney General recognizes, “inaccurate and inflammatory.” We
realize that the trial court said Juror 275 “did not respond well to [the
prosecutor] the entire time [the prosecutor] questioned her.” But the court
also stated that the juror did not “warm up” to the court either, and it
suggested that the prosecutor’s questioning about Black Lives Matter was
somewhat abrupt and inflammatory, both observations tending to conflict
with the conclusion that Juror 275 had it out for the prosecutor from the
beginning. Ultimately, under these circumstances any general antipathy
that Juror 275 may have had toward the prosecutor is not sufficiently
established by the record so as to dispel an inference of discrimination.
Finally, we address the fact that the seated jury had two Black
members, whom the prosecutor had already passed when she made a
peremptory challenge to Juror 275. “Although the passing of certain jurors
may be an indication of the prosecutor’s good faith in exercising . . .
peremptories, and may be an appropriate factor for the trial judge to consider
in ruling on a Wheeler objection, it is not a conclusive factor. [¶] . . . ‘ “If the
54
presence on the jury of members of the cognizable group in question is
evidence of intent not to discriminate, then any attorney can avoid the
appearance of systematic exclusion by simply passing the jury while a
member of the cognizable group that [the prosecutor] wants to exclude is still
on the panel. This ignores the fact that other members of the group may
have been excluded for improper, racially motivated reasons.” ’ ” (People v.
Snow (1987) 44 Cal.3d 216, 225.) If defendants’ prima facie showing rested
primarily on the numbers, we might find this factor more compelling, but
under the totality of the circumstances the fact that the jury ultimately had
two Black members provides no assurance that the prosecutor did not act
with discriminatory intent by challenging Juror 275.
In short, the record simply does not support the trial court’s view that
Juror 275 had “a myriad of anti-prosecution issues” justifying a peremptory
challenge. Given the prosecutor’s inappropriate questioning about Black
Lives Matter, the absence of any clear and legitimate nondiscriminatory
reasons for striking Juror 275, and the evidence of at least some historical
discrimination by the prosecutor and other district attorneys in her office, the
court’s finding that defendants failed to establish a prima facie case of
discrimination lacked substantial evidence.
E. The Prosecutor’s Reasons for Striking Juror 275 Relating to
Black Lives Matter Met the Low Bar of Facial Neutrality.
As we have said, at Batson/Wheeler’s second stage, the prosecutor
must offer an explanation for the peremptory strike that is “facially neutral.”
(Gutierrez, supra, 2 Cal.5th at p. 1168.) Defendants and amici argue that
support for Black Lives Matter is not a race-neutral reason for striking a
55
prospective juror.27 The Attorney General agrees “in principle” but claims
that Juror 275’s support for Black Lives Matter “was not the reason that the
prosecutor dismissed her.” Rather, he claims that the prosecutor dismissed
the juror because of “the entirety of her interaction with the court, the
prosecutor, and defense counsel before and after voir dire.”
While we agree that the prosecutor offered some race-neutral reasons
for striking Juror 275, we must still evaluate whether the reasons related to
Black Lives Matter were facially valid. In People v. Douglas (2018)
22 Cal.App.5th 1162 (Douglas), the Third District Court of Appeal addressed
the appropriate remedy where a prosecutor offered some valid reasons for
challenging two openly gay jurors but offered another that was facially
discriminatory, because it was based on the assumption the jurors would be
biased toward the closeted gay victim. (Id. at pp. 1170–1172.) Douglas
identified three possible approaches: the per se approach, which requires
reversal “when a party offers multiple rationales for a peremptory strike,
only some of which are permissible,” because of “the taint from the
impermissible reason(s)”; the mixed motive approach, which permits a party
who offers a discriminatory reason for a strike “ ‘to avoid liability by showing
that the same action would have been taken in the absence of the improper
motivation that the claimant has proven’ ”; and the substantial motivating
factor approach, under which “if a bad reason is given, it can be ignored so
long as the prosecutor’s motivation is not substantially driven by it.” (Id. at
p. 1173.)
27At oral argument, amici suggested that Black Lives Matter is
generally an inappropriate topic for voir dire because of its racial
implications. We need not and do not resolve that issue here.
56
After explaining that neither the United States nor California Supreme
Court has addressed the appropriate analysis, Douglas adopted the per se
approach, holding that “[w]hen a party exercises a peremptory challenge
against a prospective juror for an invidious reason, the fact that the party
may also have had one or more legitimate reasons for challenging that juror
does not eliminate the taint to the process.” (Douglas, supra, 22 Cal.App.5th
at pp. 1164–1165, 1172, 1175–1176; see Foster, supra, 578 U.S. 1023,
136 S.Ct. at p. 1754.)28 We find persuasive Douglas’s reasoning and agree
that the per se approach should apply when some of a prosecutor’s reasons
for a strike are discriminatory and some are not. (See Douglas, at pp. 1173–
1176.) Accordingly, even though the prosecutor here offered some neutral
reasons for challenging Juror 275, we must decide whether the reasons
related to Black Lives Matter were facially valid.
We agree with the Attorney General that the prosecutor did not say, in
so many words, that she was challenging Juror 275 merely because of the
juror’s support for Black Lives Matter. Rather, it was Juror 275’s reactions to
questions about the movement that the prosecutor found objectionable.
Specifically, according to the prosecutor, Juror 275 became “openly hostile”
and refused to admit that some participants in protests cause property
damage or “riots.” As we have already suggested, these reasons ultimately do
28 A few weeks after Douglas was issued, our state Supreme Court
decided People v. Smith (2018) 4 Cal.5th 1134. While Smith declined to
decide whether a “mixed motives analysis” applies to Batson/Wheeler cases,
it observed that “[a] prosecutor’s positing of multiple reasons, some of which,
upon examination, prove implausible or unsupported by the facts, can in
some circumstances fatally impair the prosecutor’s credibility.” (Smith, at
pp. 1157–1158, 1162, fn. 7.) We think it obvious that the same holds true for
reasons that are facially discriminatory.
57
not hold up, but at the second stage we do not evaluate their plausibility.
(See Purkett v. Elem, supra, 514 U.S. at p. 768.) Rather, accepting them at
face value, we conclude that Juror 275’s supposed hostility and failure to
respond accurately to the prosecutor’s questions were race-neutral reasons
for striking her. (See, e.g., People v. Winbush (2017) 2 Cal.5th 402, 441
[juror’s “lack of candor” is facially neutral reason for strike]; People v.
Reynoso (2003) 31 Cal.4th 903, 917 [same as to juror’s “ ‘body language or
manner of answering questions’ ”]; People v. Davenport (1995) 11 Cal.4th
1171, 1203 [same as to juror’s demeanor].)
We also conclude that these reasons were not categorically
discriminatory on their face simply because they were tied to Black Lives
Matter, given the low bar that currently binding authority has set for
whether a prosecutor’s explanation passes muster at the second stage. For
example, in People v. Hamilton (2009) 45 Cal.4th 863, the prosecutor
exercised a peremptory strike against a Black prospective juror in part
because the juror said he had “ ‘considerable sympathy for Black people on
trial’ and thought the justice system was unfair to Blacks.” (Id. at pp. 899,
901.) The Supreme Court implicitly rejected the defendant’s claim that this
reason was not neutral, instead agreeing with the trial court that “a
challenge based solely on the prospective juror’s race is different from a
challenge ‘which may find its roots in part [in] the juror’s attitude about the
justice system and about society which may be race related.’ ” (Id. at
pp. 901–902; see Douglas, supra, 22 Cal.App.5th at p. 1171 [discussing
Hamilton].) Although such a reason will soon be presumptively invalid under
Assembly Bill No. 3070 (see Code Civ. Proc., § 231.7, subds. (e)(2), (i)), until
then we must adhere to the Court’s reasoning on this issue.
58
Nor can we say that the prosecutor’s reasons related to Black Lives
Matter amounted to a proxy for race. The parties agree that “support for
[Black Lives Matter] is correlated with race,” as Black people are not only
statistically more likely to support the movement but also linked with it in
the “public consciousness.” There is a line of decisions finding
“discriminatory intent to be inherent in . . . generic ‘group-based
presuppositions’ ” about how a juror may view the case. (Gutierrez, supra,
2 Cal.5th at p. 1167–1168, quoting United States v. Bishop (9th Cir. 1992)
959 F.2d 820, 825 [peremptory challenge based on prosecutor’s assumption
about attitude of juror who lived in “area heavily populated by poor [B]lack
people”]; see, e.g., Douglas, supra, 22 Cal.App.5th at pp. 1171–1172
[prosecutor assumed jurors would react to victim in particular way merely
because they were gay].) But our state Supreme Court has distinguished
challenges based on assumptions about a juror from challenges based on a
juror’s actual beliefs, even if those beliefs are more likely to be held by a
particular group. (People v. Avila (2006) 38 Cal.4th 491, 542–545 [Black
prospective juror’s negative view of police “based on her personal experience
that police officers lied, not on a theoretical perception that she, a member of
a minority group, might view the police with distrust”]; see People v. Calvin
(2008) 159 Cal.App.4th 1377, 1386–1388 [discussing Avila].) Here, the
prosecutor did not justify the challenge to Juror 275 based on assumptions
about what attitudes the juror held because of her support for Black Lives
Matter. Instead, the prosecutor purportedly based it on the juror’s actual
reaction and responses to questions about the movement. Under binding
authority, these were sufficiently race-neutral reasons for the peremptory
challenge at Batson/Wheeler’s second stage.
59
F. Insufficient Evidence Supports the Conclusion that the
Peremptory Challenge of Juror 275 Was Not Motivated by
Discriminatory Intent.
Finally, we address whether the trial court erred by crediting the
prosecutor’s reasons for striking Juror 275 when ruling on the challenge for
cause, thus effectively finding that defendants failed to prove purposeful
discrimination. We conclude it did.
1. General legal standards
“ ‘[A]t the third stage . . . , the “critical question . . . is the
persuasiveness of the prosecutor’s justification for [the] peremptory strike.”
[Citation.] Usually, “the issue comes down to whether the trial court finds
the prosecutor’s race-neutral explanations to be credible. Credibility can be
measured by, among other factors, the prosecutor’s demeanor; by how
reasonable, or how improbable, the explanations are; and by whether the
proffered rationale has some basis in accepted trial strategy.” ’ ” (People v.
Smith, supra, 4 Cal.5th at p. 1147, quoting Miller-El v. Cockrell (2003)
537 U.S. 322, 338–339.) “A prosecutor’s positing of multiple reasons, some of
which, upon examination, prove implausible or unsupported by the facts, can
in some circumstances fatally impair the prosecutor’s credibility.” (Smith, at
pp. 1157–1158.) “ ‘At this stage, “implausible or fantastic justifications may
(and probably will) be found to be pretexts for purposeful discrimination.” ’ ”
(People v. Johnson (2015) 61 Cal.4th 734, 755, quoting Miller-El, at pp. 338–
339.)
Because the analysis at this stage “focuses on the subjective
genuineness of the reason [offered for striking a juror], not the objective
reasonableness,” a “trial court enjoys a relative advantage vis-à-vis reviewing
courts, for it draws on its contemporaneous observations when assessing a
prosecutor’s credibility.” (Gutierrez, supra, 2 Cal.5th at pp. 1158–1159.)
60
Thus, we generally exercise “ ‘ “great restraint” ’ ” when reviewing a
“determination regarding the sufficiency of tendered justifications” for the
strike, asking only whether it is supported by substantial evidence. (Id. at
p. 1159.) “Reviewing the trial court’s determination [that a particular reason
is genuine] with restraint does not, however, mean abdication.” (People v.
Hardy, supra, 5 Cal.5th at p. 76.) Usually, such rulings “are entitled to
deference only when the [trial] court made a ‘sincere and reasoned effort to
evaluate the nondiscriminatory justifications offered.’ ” (Gutierrez, at
p. 1159.) “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.” (Silva, supra, 25 Cal.4th at p. 386.)
2. Analysis
To reiterate, the record reflects that the prosecutor gave the following
reasons for exercising a peremptory challenge against Juror 275: (1) the
juror’s hostility, including when questioned about Black Lives Matter; (2) the
fact that the juror “disagreed that . . . there is a contingent within [the
movement] which destroys property or . . . riots”; (3) the juror’s negative
opinion of law enforcement; (4) the fact the juror arrived late; and (5) the fact
the juror appeared to “want[] absolutely nothing to do with this case.”
These reasons do not hold up to scrutiny. As the record shows, and as
the trial court explicitly ruled, Juror 275 did not deny that some people who
participate in Black Lives Matter demonstrations destroy property. Of
further concern, the prosecutor explained at one point that she asked such
“questions about whether or not individuals could agree that maybe there is a
61
bad portion of this particular movement that they’re in” to ascertain whether
there was a risk of “jury nullification.” To the extent the prosecutor assumed
Juror 275 posed a risk of jury nullification based solely on her perceived
involvement in Black Lives Matter, the assumption reflected an illegitimate
reason for a peremptory challenge.
The prosecutor’s reason that Juror 275 had arrived late was also
baseless. It was Juror 211 who arrived late, not Juror 275. “Although an
isolated mistake or misstatement . . . is generally insufficient to demonstrate
discriminatory intent [citation], 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.” (Silva, supra, 25 Cal.4th at p. 385.) Here, the reason related to
tardiness was unsupported in the record, was not an isolated mistake since
the prosecutor offered at least one other reason that was unsupported in the
record, and was more suggestive of discrimination because it stemmed from
confusing one Black woman with another.
As we already touched on, the record also does not support the
prosecutor’s claim that Juror 275 held a negative opinion of law enforcement.
The juror never indicated she would view the testimony of law enforcement
officers differently from the testimony of other witnesses, and her views
about the criminal justice system involved sentencing, not the police. While
the prosecutor may have believed that Juror 275’s support for Black Lives
Matter indicated a negative opinion of law enforcement, the prosecutor did
not ask any questions to ascertain whether the juror actually held such a
belief. Again, since support for Black Lives Matter is not, as the parties
concede, a race-neutral reason for striking a prospective juror, an assumption
62
about a juror’s opinions based solely on that support cannot justify a
peremptory challenge.
Moreover, as defendants observe, the prosecutor did not challenge other
non-Black seated jurors who gave answers that did indicate a negative view
of law enforcement. For example, Juror 197 wrote about an encounter with
police during which she felt “victimized,” leading her to “complain[] to the
officer in charge.” In response to the question about whether she had “any
strong opinions about how police do their jobs,” she responded, “I’m
conflicted. I know the majority of police officers are fair and are just trying to
do their job, which is to help people. But then you can’t help being disturbed
by some of the police killings that are in the news.” Yet the prosecutor never
asked the juror about these responses and never challenged her.
As another example, Juror 249 also indicated that she had “strong
opinions about how police do their jobs.” She explained, “I think racial
profiling exists [and] I question the use of firearms in certain situations.”
Again, however, the prosecutor did not ask about this response in voir dire
and never challenged the juror.
We recognize that the trial court did not believe it was making a third-
stage ruling on the challenge to Juror 275. Accordingly, we do not fault it for
not expressly addressing every reason the prosecutor gave, mentioning that
not all of them were supported by the record, or conducting a comparative
analysis. (Cf. Silva, supra, 25 Cal.4th at pp. 385–386.) Nonetheless, the
parties agree that we can conduct a third-stage review in this case, and the
court accepted the prosecutor’s reasons that related to Juror 275’s “anti-
prosecution issues.” Those reasons, in turn, include both one that was
unsupported—that Juror 275 had a negative opinion of law enforcement—
63
and one that was untenable—that Juror 275 became hostile when subjected
to concededly inappropriate questions about Black Lives Matter.29
In addition to the questioning of Juror 275 about Black Lives Matter,
other aspects of the prosecutor’s voir dire were also troubling. The dialogue
about Richmond and other areas the prosecutor perceived as “crime-ridden”
recalls the questioning that led to reversal in Gutierrez. In that case, one of
the prosecution witnesses was a gang member from Wasco. (Gutierrez, supra,
2 Cal.5th at pp. 1155, 1160.) The prosecutor asked a Hispanic prospective
juror who lived in Wasco whether she was aware of “gangs . . . that are active
in the Wasco area,” and the juror responded she was not. (Id. at p. 1160.) To
explain his subsequent peremptory challenge to this juror, the prosecutor
explained, “ ‘[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 [the witness] is
from a criminal street gang . . . out of Wasco.’ ” (Ibid.)
The Gutierrez defendants argued that the so-called “Wasco reason” was
not facially neutral because the prosecutor “was effectively using an
individual’s residence in Wasco as a proxy for Hispanic ethnicity,” since
census data showed that about 75 percent of Wasco residents identified as
Hispanic or Latino. (Gutierrez, supra, 2 Cal.5th at pp. 1167–1168.) The
29 As we have said, in ruling on the cause challenge to Juror 275, the
trial court indicated that the juror consistently “did not respond well to [the
prosecutor],” not just once the topic of Black Lives Matter arose. The
prosecutor, however, repeatedly linked the juror’s hostility to questioning
about Black Lives Matter, when justifying both the cause challenge and the
peremptory challenge. Accordingly, whatever the court may have believed
about the juror’s general attitude toward the prosecutor, the prosecutor’s
actual reason was the juror’s demeanor in response to questions involving
Black Lives Matter.
64
defendants relied on Bishop, in which “the prosecutor explained that he felt
[a Black] eligibility worker who lived in Compton was likely to be hostile to
law enforcement and desensitized to violence. [Citation.] [The Ninth Circuit
Court of Appeals] found discriminatory intent to be inherent in these generic
‘group-based presuppositions’ that ‘one who lives in an area heavily
populated by poor [B]lack people could not fairly try a [B]lack defendant.’ ”
(Gutierrez, at p. 1167, discussing United States v. Bishop, supra, 959 F.2d
820.)
The Supreme Court determined that the Wasco reason was facially
neutral, explaining that it was “not inherently based on stereotypical views of
Wasco residents” because of “the prosecutor’s articulated basis referencing
[the witness’s] Wasco gang affiliation.” (Gutierrez, supra, 2 Cal.5th at
pp. 1167–1168.) But the Court also concluded that the trial court’s third-
stage ruling that the defendants failed to prove purposeful discrimination
“was unreasonable in light of the record of voir dire proceedings,” focusing on
the fact it was not “self-evident” why the juror’s unawareness of Wasco gang
activity would cause the juror to be biased against the witness. (Id. at
pp. 1169–1172.)
In reaching its holding, the Supreme Court noted that it was
“conceivable . . . that the prosecutor genuinely believed gang activity to be so
rampant in Wasco that this [juror] must have been either untruthful or
uninformed in denying her awareness of Wasco gang activity,” although the
prosecutor had failed to articulate this reasoning. (Gutierrez, supra,
2 Cal.5th at p. 1169.) But even if a prosecutor did justify a strike “with the
belief that a panelist’s professed unawareness of gang activity indicated her
dishonesty or ignorance, the basis for such a belief would compel further
scrutiny. Insofar as a prosecutor’s challenges might be guided by an
65
ungrounded assumption that Hispanic or Latino residents of Wasco (a
community that is predominantly Hispanic or Latino) should be aware of
gang activity in their neighborhood, a court might query whether this
reasoning is inherently neutral as to race or ethnicity.” (Id. at p. 1169, fn. 7.)
The prosecutor here justified her peremptory challenges to both
Jurors 211 and 313 on a basis similar to that Gutierrez posited, that these
jurors’ unawareness of crime or gang activity in Richmond and positive views
of the city showed they “either choose[] not to accept reality or choose[] not to
see what’s around [them].” Although our record does not contain
demographic data about Richmond, the prosecutor’s comments strongly
suggest that she associated crime in that city, and the other Bay Area
communities she deemed “gang-infested,” with Black people. She explained
that she did not persist in questioning jurors unless their views of their
communities, “which [she] happen[ed] to know well because of [her] area . . .
where [she] practice[d],” diverged from hers. In turn, she explicitly tied her
legal practice to race, saying she had “dedicated the majority of [her] career
to Black-on-Black crime” and worked long hours “because there is a complete
violence that is out of control that is taking young African-Americans from
us.”
Thus, it is reasonable to infer that the prosecutor’s belief that
Jurors 211 and 313 should have been aware of crime in Richmond was based
on her belief that they should be aware of crime in Richmond’s Black
community. As Gutierrez suggests, a strike based on such reasoning would
not be race-neutral. Although we ultimately need not decide whether the
prosecutor’s reasons for striking Jurors 211 and 313 were pretextual, the
prosecutor’s reliance on these jurors’ disagreement with her negative view of
66
their city reinforces our conclusion that the peremptory challenge to
Juror 275 was discriminatory.
In sum, we hold that the denial of the Batson/Wheeler motion as to
Juror 275 “was unreasonable in light of the record of voir dire proceedings”
(Gutierrez, supra, 2 Cal.5th at p. 1172), because the record lacks evidence on
which the trial court could have concluded that the challenge to Juror 275
was not “ ‘motivated in substantial part by discriminatory intent.’ ” (Foster,
supra, 578 U.S. 1023, 136 S.Ct. at p. 1754.) The prosecutor’s reasons for
striking Juror 275 were either unsupported or based on inappropriate
questioning about Black Lives Matter, and the court erred by crediting them.
We conclude by mentioning that “courts cannot discern a prosecutor’s
subjective intent with anything approaching certainty. But the issue is not
whether the evidence of improper discrimination approaches certainty or
even amounts to clear and convincing proof. The ultimate issue is ‘whether it
was more likely than not that the challenge was improperly motivated.’
[Citation.] This probabilistic standard is not designed to elicit a definitive
finding of deceit or racism. Instead, it defines a level of risk that courts
cannot tolerate in light of the serious harms that racial discrimination in jury
selection causes to the defendant, to the excluded juror, and to ‘public
confidence in the fairness of our system of justice.’ ” (Gutierrez, supra,
2 Cal.5th at pp. 1182–1183 (conc. opn. of Liu, J.).) Because this standard was
satisfied here, we are compelled to conclude that “defendants were denied
their right to a fair trial in violation of the equal protection clause of the
federal Constitution and their right to a trial by a jury drawn from a
representative cross-section of the community under the state Constitution.”
(Id. at p. 1172.)
67
III.
DISPOSITION
The judgments are reversed.
68
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Sanchez, J.
People v. Silas et al. A150512
69
Trial Court: Superior Court of Contra Costa County
Trial Judge: Hon. Clare Marie Maier
Counsel for Defendants and Appellants:
Alex Coolman, under appointment by the Court of Appeal, for Sheldon
Silas
Barry M. Karl, under appointment by the Court of Appeal, for Reginald
Whitley
Stephen B. Bedrick, under appointment by the Court of Appeal, for
Lamar Michaels
Ross Thomas, under appointment by the Court of Appeal, for Linda
Chaney
Counsel for Plaintiff and Respondent:
Xavier Becerra and Rob Bonta, Attorneys General; Lance E. Winters,
Chief Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant
Attorney General; Rene A. Chacon, Supervising Deputy Attorney General;
Moona Nandi, Deputy Attorney General
Counsel for Amici Curiae on behalf of Defendants and Appellants:
Easha Anand, James W. Craig, MacArthur Justice Center; Daniel A.
Rubens, Elizabeth Cruikshank, Tiffany R. Wright, Sarah H. Sloan, Orrick
Herrington & Sutcliffe
Ezekiel R. Edwards, Jason D. Williamson, Cassandra Stubbs, American
Civil Liberties Union Foundation
Shilpi Agarwal, American Civil Liberties Union Foundation of
Northern California
Elias Batchelder, Office of the State Public Defender
Stephen K. Dunkle, John T. Philipsborn, California Attorneys for
Criminal Justice
Elisa Della-Piana, Tifanei Ressl-Moyer, Lawyers’ Committee for Civil
Rights of the San Francisco Bay Area
People v. Silas et al. A150512
70