Opinion
B329607
08-06-2024
The PEOPLE, Plaintiff and Respondent, v. Eric GONZALEZ, Defendant and Appellant.
Randy S. Kravis, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Wyatt E. Bloomfield, Marc A. Kohm, and Lauren Guber, Deputy Attorneys General, for Plaintiff and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, James Otto, Judge. Affirmed in part, sentence vacated, and remanded. (Los Angeles County Super. Ct. No. NA116490)
Randy S. Kravis, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Wyatt E. Bloomfield, Marc A. Kohm, and Lauren Guber, Deputy Attorneys General, for Plaintiff and Respondent.
ADAMS, J.
A jury convicted Eric Gonzalez of two counts of first degree murder (Pen. Code, § 187, subd. (a)) and found true firearm use allegations (id., § 12022.5, subd. (a)). Gonzalez appeals, arguing: (1) the prosecutor improperly exercised a peremptory challenge to a juror in violation of Code of Civil Procedure section 231.7; (2) he was subjected to a custodial interrogation without the advisements required by Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda) and his statements were improperly admitted; (3) the trial court erred in refusing to instruct the jury on voluntary manslaughter based on imperfect self-defense; (4) the prosecutor committed misconduct by stating that the proof beyond a reasonable doubt standard is met every day in courts across the country; and (5) the upper term sentence for the firearm enhancement must be vacated because the court did not find any aggravating factors true beyond a reasonable doubt.
All undesignated statutory references are to the Code of Civil Procedure.
In the published portion of this opinion, we conclude there was clear and convincing evidence that an objectively reasonable person would view the rationale for the prosecutor’s peremptory challenge as unrelated to the prospective juror’s race, and that the reasons the prosecutor articulated bore on the juror’s ability to be fair and impartial. We therefore determine the trial court did not err in overruling the defense objection to the peremptory challenge. In the remainder of the opinion, we conclude Gonzalez was not in police custody during the challenged interrogation, substantial evidence did not support instructing the jury on imperfect self-defense, and the prosecutor’s argument concerning the attainability of the proof beyond a reasonable doubt standard was not improper or prejudicial. The Attorney General does not dispute Gonzalez’s final contention regarding the sentence on the firearm enhancement, and we likewise agree that the court erred. Accordingly, we vacate Gonzalez’s sentence and remand the matter for resentencing. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying offenses
In March 2021, Kathy H. found a firearm in her daughter’s dresser. Upon finding the gun, Kathy H. called her boyfriend, Alexis Casarez, and asked him to get rid of it. She did not know how Casarez disposed of the gun, which belonged to Andy Gaeta.
On July 3, 2021, Kathy H. learned that Gaeta had been threatening her daughter once he found out the gun was gone. The daughter told Kathy H.: " ‘[Gaeta] won’t stop. He is really mad, Mom. He wants the gun.’ " Casarez overheard this conversation and asked for Gaeta’s phone number. Casarez called Gaeta and identified himself as the young woman’s stepdad. Casarez said Gaeta should not have left the gun with her, it was gone, and Gaeta should consider it a loss. Gaeta was not satisfied. He stated that it was not Casarez’s gun to get rid of and that they needed to meet up. Casarez arranged for them to meet at his mother’s house that evening. Casarez, Kathy H., and her brother, Angel Mandac, drove to the house and waited for Gaeta.
Eventually, Gaeta showed up with Gonzalez. Casarez told Gaeta that they would talk to him alone and Gonzalez could wait outside. Gaeta entered the home and sat on the couch with Kathy H. and Casarez. Mandac remained in a bedroom so Gaeta would not feel " ‘on guard’ " but told Kathy H. he would come out and talk if things could not be resolved. Gaeta continued to insist that it "wasn’t [Kathy H.’s or Casarez’s] gun to get rid of." He said he wanted another gun or money. Everyone was talking calmly, although Casarez was frustrated.
According to Kathy H., neither she nor Casarez threatened Gaeta. At some point, Mandac joined the conversation. He also sat on the couch. Mandac shook Gaeta’s hand and explained that he was Kathy H.’s brother and had heard what was going on. He told Gaeta that he would help him but told him never to contact Kathy H.’s daughter again. They exchanged phone numbers. Mandac then went out on the porch. Kathy H. could hear but not see what happened there. Mandac said " ‘he was Striker from Pedro’ " and Gonzalez said "he was Troubled from the West Side." Kathy H. understood this to mean that Gonzalez was "part of the gang from Wilmington," the West Side Wilmas. Mandac’s statement meant that he was a member of the Rancho San Pedro gang.
Gonzalez told Mandac, " ‘The Ranch ain’t wanted here," and that Mandac needed to "make something happen" that evening. Mandac replied that he had discussed the matter with Gaeta and they had arranged something. Gonzalez replied, "‘No, you’re going [t]o make something happen, and the Ranch ain’t wanted here.’ " His tone was loud and he was not calming down. According to Kathy H., Gonzalez was not trying to be reasonable like Gaeta but instead repeated, " ‘the Ranch ain’t wanted here, motherfucker.’ " Gaeta was still in the living room. Mandac was calm and "just trying to let [Gonzalez] know that he is not here for that, for the San Pedro/Wilmington thing … ."
After a couple of minutes, Gaeta went outside and his demeanor changed. He seemed to doubt that Mandac would follow through. Gonzalez continued to get more aggressive and stated that Mandac needed to "make something happen." Mandac told Gaeta that he would call him and would take care of him. Gonzalez continued to say, " ‘The Ranch ain’t wanted here.’ " Mandac replied, " 'You know, I’m 40-some-thing years old. I’m not here for that.’ "
During this exchange, Casarez was standing inside by the door, next to Kathy H.
Kathy H. felt that Gonzalez was escalating the situation. She told Casarez they needed to leave because she was scared. Casarez told Gaeta they would call him. It was quiet for a few seconds before Kathy H. heard gunshots coming from outside the house. Kathy H. could not see what was going on. Casarez told her to run. Kathy H. ran through the house to the backyard and hid behind a shed.
Kathy H. testified that she did not see Casarez or Mandac with a gun that evening. After a time, Kathy H. left the shed and went to the other house on the property to call her other brother. Once she reached him, he told her to go check on Mandac and Casarez. Kathy H. was still scared and did not check. Police officers and paramedics arrived on the scene. Kathy H. did not want to speak with the officers and only wanted to see her brother and boyfriend. She went to the hospital and was informed early the next morning that both had died.
The investigation
Detectives Manuel Armenta and Issac Fernandez responded to the scene of the shooting on July 4. Evidence collected at the crime scene included expended casings located inside and directly outside the house, blood spatters, two cell phones, and two firearms. One firearm, a nine-millimeter semiautomatic, was loaded with 13 live rounds. The other, a .40-caliber handgun, was also loaded and contained six live rounds. The nine-millimeter gun was recovered near Casarez’s body, while the .40 caliber was recovered from Mandac's body. Crime scene photographs showed bullet impacts to the inside of the living room and the exterior of the residence.
Fernandez later obtained video surveillance from several locations near Casarez’s mother’s house. One of the videos showed Gonzalez’s brother, Sebastian Gonzalez, driving and parking a dark vehicle on the street. Two individuals got out of the vehicle and walked towards the residence. Detectives identified one of the individuals as Gaeta. Another video showed the dark vehicle backing up and two individuals running towards it. Fernandez also collected body-worn camera footage from officers who first responded to the scene. One video showed Mandac’s body near the threshold of the house and Casarez’s body inside the house. Another video showed an officer recovering the .40-caliber handgun from a holster on Mandac’s body. Armenta also collected video evidence from a hospital, which showed the dark sedan pull up shortly after midnight on July 4, 2021.
Because Gonzalez and his brother have the same last name, we refer to Sebastian Gonzalez by first name only. No disrespect is intended.
Armenta and Fernandez conducted a recorded interview of Gonzalez at the hospital on July 4, 2021. Gonzalez said he had been shot in the leg and shoulder. When asked who shot him, Gonzalez replied: "They didn’t say nothing. They just pulled up on the side of me, and I was walking home." He claimed his assailants were in a white car and that he had been walking home from the house of his friend’s mother.
Forensic analyses
Mandac and Casarez were shot a total of 16 times. An autopsy revealed that Mandac had sustained nine gunshot entry wounds, including to the back of his head and left upper chest. Casarez sustained seven gunshot entry wounds, including to the front part of the top of his head, top right shoulder, and right chest.
A Los Angeles Police Department criminalist and firearms analyst testified that he examined the nine-millimeter firearm that was recovered near Casarez’s body, as well as 20 discharged cartridge cases. The criminalist testified that the nine-millimeter firearm fired four of the cartridge cases. Two additional, unrecovered guns fired the 16 remaining cartridge cases: 11 by one gun and five by the other. No discharged cartridges located at the scene were associated with the .40-caliber handgun found on Mandac’s body.
The underlying proceedings
The People charged Gonzalez by information with the murders of Casarez (Pen. Code, § 187, subd. (a); count 1) and Mandac (ibid.; count 2). With respect to both counts, the information alleged that Gonzalez personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a). It was further alleged that counts 1 and 2 involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; Gonzalez had induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission; and the crimes were carried out in a manner that indicates planning, sophistication, or professionalism. Gonzalez pleaded not guilty to both counts and denied all special allegations.
The information also charged Sebastian with two counts of murder and alleged that he committed the crime of accessory after the fact with knowledge of the crime (Pen. Code, § 32) and had been previously convicted of a serious or violent felony. The jury found him not guilty of the murders but guilty of being an accessory after the fact.
A jury found Gonzalez guilty of the first degree murders of Mandac and Casarez. As to both counts, the jury also found true the allegation that Gonzalez personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a). The court sentenced Gonzalez to 25 years to life on count 1, plus 10 years for the firearm enhancement, for a total of 35 years to life. On count 2, the court imposed a concurrent sentence of 25 years to life, plus 10 years for the firearm enhancement.
Gonzalez timely appealed.
DISCUSSION
I. The Trial Court Did Not Err in Overruling the Defense Objection to the Prosecutor’s Peremptory Challenge
Gonzalez contends the trial court erred in overruling defense counsel’s objection to a peremptory challenge the prosecutor exercised to remove a prospective African American juror. We find no error.
A. Background
Juror No . 1589
Potential jurors in this case received a questionnaire which asked for biographical information and posed questions relevant to the jurors’ ability to be fair and impartial. During voir dire, the court asked follow-up questions based on the questionnaire, as well as whether there was any reason the jurors believed they could not be fair and impartial.
Juror No. 1589’s questionnaire indicated a close family member had been the victim of a crime, and he had "experiences with a law enforcement officer which would prevent [him] from judging a law enforcement witness by the same standard as any other witness." Juror No. 1589 told the court that his cousin was shot and killed in 2005. The police caught the perpetrator, but Juror No. 1589 was not satisfied with the way law enforcement handled the case. He explained: "They left my cousin on the ground for, like, two hours before they came and checked on him. So that really frustrate[d] the family." He felt that law enforcement had improperly delayed in investigating the crime and tried "to blame us for doing it …. " Although the shooting was gang-related, his cousin was not a gang member. However, law enforcement "treated [his family] like [they were] gang members because [they] all lived in the same neighborhood," "[s]o it was kind of frustrating dealing with the police." However, Juror No. 1589 was satisfied that the perpetrator had been convicted and sent to prison.
The court asked whether that experience would affect Juror No. 1589 in this case. Juror No. 1589 replied: "It’s kind of frustrating. So I’m kind of bearded [sic] with the justice system. So I don’t know if I will be able to—" The court interjected that, as a juror, Juror No. 1589 would be part of the justice system and would get to decide the facts of the case and apply them to the law. It asked whether he thought he could do that. Juror No. 1589 replied: "I don’t know." The court asked whether he would try his best. He replied that he would. He then answered "yes" to a series of questions the court asked confirming that the juror would listen to the evidence and "be fair and impartial to both sides."
The court then inquired about the juror’s experience with law enforcement as reported in response to the questionnaire. Juror No. 1589 explained that when he was 12 or 13 years old, he was playing basketball with friends when a police car pulled up and officers told the children to "put [their] hands on the hot hood" of the police car. The officers beat the children’s hands with a flashlight when they tried to move them. This experience "kind of made [him] bitter." When asked whether he would hold that experience against any officers that might testify, Juror No. 1589 replied: "I don’t know. I don’t know." The court explained that it would instruct the jury that the law states that an individual’s status as a law enforcement officer does not permit a juror to assume that person is more or less credible than anyone else. The court asked whether Juror No. 1589 would be able to follow that instruction. He replied: "Yes."
Counsel for the defendants asked Juror No. 1589 several questions, but none pertained to his ability to be fair and impartial based on his experiences with law enforcement. The prosecutor did not ask Juror No. 1589 any questions individually.
The prosecutor challenged Juror No. 1589 for cause. He explained that Juror No. 1589 said "he was bitter about the way that his cousin’s case, his murder case was handled, that he was frustrated by the police. Frustrated by the police, and at one point the court asked him, Do you think you can be fair to law enforcement? And he said, I don’t know, and I think he said that twice. [¶] And I want to also point out—and I think it was obvious as well— he became visibly emotionally upset during his discussion to the point where I think he had a hard time articulating—getting the words out of his mouth because he was so upset about it, just simply being able to recall it now. He said … his cousin’s case happened—I believe it was in the early two thousands. We’re roughly 20 years removed from that, and it’s obvious that he still feels a great deal of emotional angst over the way his family was treated during that investigation."
Defense counsel suggested the juror was simply being honest and answering the questions with "deep introspection," while "everybody else just kind of says what they’re supposed to say, like a quarterback being interviewed after a game." The court denied the for cause challenge, stating: "I don’t think it rises to for cause …. "
The prosecutor subsequently exercised a peremptory challenge against Juror No. 1589. Counsel for defendants jointly made a Batson/Wheeler objection. The court stated that it would instead entertain a challenge under section 231.7. All counsel agreed Juror No. 1589 was an African American male. The prosecutor argued that the reasons he articulated for removal for cause were race-neutral and he was continuing to assert those reasons. Sebastian’s counsel argued that Juror No. 1589’s distrust of law enforcement was a presumptively invalid reason under the statute. The prosecutor contended the presumption was overcome "in that the court specifically asked him, Can you be fair to law enforcement? [¶] And he said, I don’t know. [¶] … [¶] He said it twice." The court noted Juror No. 1589 eventually said he could be fair to the People. The prosecutor argued this "strain[ed] credulity," as Juror No. 1589 had a "visceral response to this line of questioning" and his subsequent response "under pressure to say that … he can be fair" was not credible.
Gonzalez’s attorney argued that Juror No. 1589’s response "could very well be appropriate given what [Juror No. 1589] endured," which "probably very likely was because of his race …. " Counsel for both defendants further argued that the bases for the prosecutor’s challenge—negative experience with law enforcement and the juror’s feeling that the police treated his family like gang members—were invalid reasons under the statute. The court asked the prosecutor to "articulate beyond those two invalid reasons … why you are challenging him."
The prosecutor reiterated that "the court specifically asked him … [if] despite his bitterness, despite feeling frustrated, despite all of these negative feelings that he had experienced going through what he felt was mistreatment by law enforcement during his cousin’s murder investigation, can he still then be fair to law enforcement? And the court asked him twice, and he twice said, I don’t know." The prosecutor noted that the statute requires an inquiry into whether a prospective juror can be fair. He asserted he challenged Juror No. 1589 because he "specifically told this court he is not sure whether or not he is capable of being fair to law enforcement."
Defense counsel argued the juror’s experiences "seem to be likely because of race …. " The court indicated it heard the juror answer the court’s questions "of how he can treat the police officers," and noted, "I believe, however, that really derives from his racial makeup …. " The prosecutor countered that "[m]any people have had negative experiences with law enforcement" but "are capable of putting it aside." He argued that Juror No. 1589’s "emotional response and … two [‘]I don’t know if I could be fair to law enforcement[’] answers … crossed that barrier."
The court ultimately agreed the prosecutor had shown by clear and convincing evidence that an objectively reasonable person would view the prosecutor’s rationale as unrelated to Juror No. 1589’s membership in a cognizable group. It therefore overruled the defense objection and excused Juror No. 1589.
Further voir dire proceedings
Another juror stated that she and her husband had been the victims of multiple crimes but her experiences would not affect her and there was no reason she could not be fair and impartial. Defense counsel exercised a peremptory challenge against this juror. The prosecutor made a section 231.7 objection and identified the juror as an African American female. Defense counsel argued the juror had been the victim of several crimes but this had nothing to do with her race. The court observed she was the second African American juror against whom defense counsel had exercised a peremptory challenge and concluded defense counsel had failed to identify a valid reason for excusing the juror when she "didn’t give any indication that she would be biased." The court sustained the prosecutor’s objection under section 231.7. Although no other jurors expressed distrust in law enforcement like Juror No. 1589, several were dismissed for cause by stipulation of both parties on the ground that the jurors expressed a doubt as to whether they could be fair or impartial.
B. Applicable legal principles
"The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish ‘a new process for identifying unlawful bias in the use of peremptory challenges during jury selection’ because studies showed that the existing Batson/Wheeler analysis … was inadequate to prevent racial discrimination." (People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540, 318 Cal.Rptr.3d 35 (Jimenez).)
"Claims of unconstitutional challenges of prospective jurors are governed by a framework established by Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 … and People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 …." (Jimenez, supra, 99 Cal.App.5th at p. 547, 318 Cal.Rptr.3d 35.) "Under a three-step process, a defendant must first ' "make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ " ’ [Citation.]" (Id. at p. 548, 318 Cal.Rptr.3d 35.) "Under the second step, ' "… the 'burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes." ’ [Citation.]" (Ibid.) " ‘ "Third, '… the trial court must then decide … whether the opponent of the strike has proved purposeful racial discrimination.’ " [Citations.]’" (Id. at p. 549, 318 Cal.Rptr.3d 35.)
As relevant here, section 231.7, subdivision (a), states that "[a] party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race …. " The party or court on its own motion may object to the improper use of a peremptory challenge under subdivision (a). (§ 231.7, subd. (b).) "The court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances," considering only the reasons actually given. (Id., subd. (d)(1).) "If the court determines there is a substantial likelihood that an objectively reasonable person would view race …, as a factor in the use of the peremptory challenge, then the objection shall be sustained." (Ibid.)
Under section 231.7, "a ‘substantial likelihood’ means more than a mere possibility but less than a standard of more likely than not." (§ 231.7, subd. (d)(2)(B).) "[A]n objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California," and " ‘unconscious bias’ includes implicit and institutional biases." (Id., subd. (d)(2)(A), (C).) Section 231.7, subdivision (d)(3), provides a non-exhaustive list of circumstances the court may consider in the analysis.
Section 231.7, subdivision (e), provides, in part, that certain reasons given for the use of a peremptory challenge are "presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race …, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case."
The presumptively invalid reasons include "[e]xpressing a distrust of or having a negative experience with law enforcement or the criminal legal system" and "[e]xpressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner." (§ 231.7, subd. (e)(1)—(2).) Clear and convincing evidence to overcome the presumption exists when the court, "bearing in mind conscious and unconscious bias," determines "that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case." (Id., subd. (f).)
Section 231.7, subdivision (g), further provides that certain demeanor-based reasons for the exercise of a peremptory challenge "have historically been associated with improper discrimination in jury selection," including the claim that "[t]he prospective juror was inattentive, or staring or failing to make eye contact"; "exhibited either a lack of rapport or problematic attitude, body language, or demeanor"; or "provided unintelligent or confused answers." (§ 231.7, subd. (g)(1)(A)–(C).) These reasons are presumptively invalid "unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or the observations of counsel for the objecting party" and "the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried." (Id., subd. (g)(2).)
Section 231.7 "calls for de novo review of a trial court’s decision to overrule an objection to a peremptory challenge, ‘with the trial court’s express factual findings reviewed for substantial evidence.’ " (Peo- ple v. Ortiz (2023) 96 Cal.App.5th 768, 795, 314 Cal.Rptr.3d 732 (Ortiz), quoting § 231.7, subd. (j).) "The statute also limits the bases upon which an appellate court may affirm the trial court’s ruling. The appellate court ‘shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record.’ " (Ortiz, at p. 795, 314 Cal.Rptr.3d 732, quoting § 231.7, subd. (j).) Further, "[t]he reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain" the party’s exercise of the peremptory challenge. (§ 231.7, subd. (j).)
C. There was clear and convincing evidence that a reasonable person would view the prosecutor’s rationale as unrelated to Juror No. 1589’s race
At present, only two published opinions have discussed the application of section 231.7, subdivision (e), in any depth. We examine both before turning to the facts before us.
In Jimenez, a Latina prospective juror expressed the view that the law was enforced differently based on race. (Jimenez, supra, 99 Cal.App.5th at p. 541, 318 Cal. Rptr.3d 35.) When asked "if she would ‘have a difficult time being fair and considering only the evidence that [is] presented’ even if ‘there’s no evidence that’s presented’ regarding how race affects law enforcement," she stated: " ‘I think it would be difficult. I’m not saying I couldn’t do it. I also think that I—I also think implicit bias is definitely a thing that I could do without knowing I did it.’ " (Ibid.) Similarly, when asked "whether ‘it would be difficult’ to give the testimony of the officers ‘a fair shake,’ she confirmed, … ‘I feel like it could be one of those things where it’s, like, always in the back of my mind as much as I try to set it aside.’ " (Ibid.) A White female prospective juror expressed similar views. (Ibid.)
The prosecutor asserted a for cause challenge to the White juror. The court granted the request over a defense objection. (Jimenez, supra., 99 Cal.App.5th at p. 541, 318 Cal.Rptr.3d 35.) The prosecutor then exercised a peremptory challenge to the Latina juror. (Id. at p. 542, 318 Cal. Rptr.3d 35.) The defense objected under section 231.7. (Ibid.) The prosecutor offered a number of reasons for the challenge, including the juror’s beliefs about the racial bias of law enforcement officers. (Ibid.) The prosecutor conceded this reason was presumptively invalid. (Ibid.) However, he argued that "clear and convincing evidence established that this reason was unrelated to conscious or unconscious bias and instead ‘bear[s] on that juror’s ability to be fair and impartial in the case….' " (Ibid.) The trial court agreed and overruled the objection. (Id. at pp. 542–543, 318 Cal.Rptr.3d 35.)
On appeal, the Jimenez court found there was clear and convincing evidence to overcome the presumption of invalidity. (Jimenez, supra, 99 Cal.App.5th at p. 544, 318 Cal.Rptr.3d 35.) The prospective juror’s "repeated acknowledgement that she would have difficulty setting aside her bias against law enforcement officers to fairly consider their testimony, despite her initial statements she could be fair" was an undisputed fact. (Ibid.) "An objectively reasonable person would view the prosecutor’s challenge of Juror Number 8 due to her feelings on law enforcement as related to her ability to be fair based on her repeated acknowledgement that she would have difficulty setting aside her bias and being fair." (Ibid.) The prosecutor had also dismissed a White juror who expressed similar doubts about her ability to be fair. (Id. at p. 545, 318 Cal.Rptr.3d 35.) In a footnote, the court explained, "[a]lthough having views that impair a prospective juror’s ability to be fair is typically related to a challenge for cause [citation], by its terms, section 231.7, subdivision (e), renders the ability to be fair and impartial relevant to the exercise of a peremptory challenge for a presumptively invalid reason." (Id. at p. 544, fn. 3, 318 Cal.Rptr.3d 35.) "Further, our Supreme Court also recognized that a basis for cause can be the same as a basis for a peremptory challenge." (Ibid., citing People v. Rhoades (2019) 8 Cal.5th 393, 435, 255 Cal.Rptr.3d 453, 453 P.3d 89.)
Because the presumption of invalidity was overcome, the Jimenez court proceeded to consider the prosecutor’s stated reasons under the section 231.7, subdivision (d)(3), totality of the circumstances analysis. (Jimenez, supra, 99 Cal.App.5th at pp. 541, 545, 318 Cal.Rptr.3d 35.) Under the totality of the circumstances, the court concluded "there is not a substantial likelihood that an objectively reasonable person would view cognizable group membership as a factor in the prosecutor’s peremptory challenge of Juror Number 8. Rather, an objectively reasonable person would determine that the prosecutor exercised the challenge because of Juror Number 8’s inability to be fair based on her view of law enforcement racial bias and her employment by a school district. He consistently sought to excuse or challenge prospective jurors who expressed a potential inability to be fair…. Finally, the prosecutor did not seek to remove all Latino prospective jurors." (Id. at pp. 546–547, 318 Cal. Rptr.3d 35.)
In People v. Uriostegui (2024) 101 Cal. App.5th 271, 319 Cal.Rptr.3d 898, the prosecutor used a peremptory challenge against a juror with a "Spanish surname" based on her lack of life experience, and, among other reasons, that she was not currently employed. (Id. at pp. 275, 276, 319 Cal.Rptr.3d 898.) On appeal, the majority rejected the Attorney General’s contention that " ‘lack of life experience’ " was not a presumptively invalid reason for excusing the juror, as it was based in part on the juror’s lack of employment, which is a presumptively invalid reason under section 231.7, subdivision (e)(11). (Id. at pp. 279, 280, 319 Cal.Rptr.3d 898.) The court noted the prosecutor had failed to make any showing that it was highly probable that an objectively reasonable person would view this reason as unrelated to the juror’s perceived ethnicity. (Id. at p. 280, 319 Cal. Rptr.3d 898.) The prosecutor further failed to make any showing that the juror’s lack of employment bore on her ability to be fair and impartial. (Ibid.)
[1] Here, the prosecutor moved to excuse Juror No. 1589 for cause because he expressed bitterness towards law enforcement for its handling of his cousin’s murder, was visibly emotional speaking about the situation to the point that he struggled to get words out, and indicated multiple times that he did not know whether he could be impartial towards law enforcement. The prosecutor argued these were race-neutral reasons that also justified his peremptory challenge.
It is undisputed that Juror No. 1589’s negative experience with law enforcement was a presumptively invalid reason for the exercise of a peremptory challenge under section 231.7, subdivision (e). Thus, we consider whether the prosecutor showed by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to Juror No. 1589’s race and that the reasons articulated bore on his ability to be fair and impartial in the case. That is, we consider whether "it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case." (§ 231.7, subd. (f).)
The circumstances here are similar to those of Jimenez, and we find the case instructive. As the court in Jimenez observed, "[t]he statute does not limit our ability to consider undisputed facts in the record that are relevant to the prosecutor’s reason or the court’s finding during our de novo review." (Jimenez, supra, 99 Cal.App.5th at p. 544, 318 Cal.Rptr.3d 35.) Here, as in Jimenez, one such undisputed fact is Juror No. 1589’s "repeated acknowledgement that [he] would have difficulty setting aside [his] bias against law enforcement officers to fairly consider their testimony…. " (Ibid.)
Juror No. 1589 expressed frustration with law enforcement’s handling of his cousin’s murder case, and doubt as to whether he could keep that experience from influencing his decisions as a juror. Specifically, when asked whether he could decide the facts of the case and apply them to the law, he said, "I don’t know." After further questioning from the court, he stated that he would try his best. Similarly, in connection with his childhood experience of being stopped and mistreated by police officers, Juror No. 1589 stated that the experience "kind of made [him] bitter" and twice replied "I don’t know" when asked whether he would hold that experience against any officers that might testify. Only after the court told him that he would be instructed not to give law enforcement officers "more or less credibility" than anyone else did he agree that he could follow the instruction.
We acknowledge that in Jimenez, the reason for the juror’s views regarding law enforcement racial bias were not expressly stated (see Jimenez, supra, 99 Cal.App.5th at p. 541, 318 Cal.Rptr.3d 35), whereas Juror No. 1589’s views appeared to be the direct result of how law enforcement had treated him personally, both in connection with his cousin’s murder and when officers stopped him as a child. There was thus reason to believe Juror No. 1589’s views arising from his past experiences were related to his race.
We nevertheless conclude that "[a]n objectively reasonable person would view the prosecutor’s challenge of Juror Number [1589] due to [his] feelings on law enforcement as related to [his] ability to be fair based on [his] repeated acknowledgement that [he] would have difficulty setting aside [his] bias and being fair." (Jimenez, supra, 99 Cal.App.5th at p. 544, 318 Cal.Rptr.3d 35.) While a prospective juror’s negative experience with law enforcement may be inextricably related to that juror’s race, the focus of section 231.7 is on race as a factor in the use of the peremptory challenge. In view of his multiple uncertain and noncommittal responses regarding impartiality, the trial court properly found it highly probable the prosecutor’s challenge was unrelated to conscious or unconscious bias and was instead specific to Juror No. 1589 and bore on his ability to be fair and impartial. In other words, the clear and convincing standard was satisfied.
[2] Gonzalez contends that we must also analyze the prosecutor’s challenge under section 231.7, subdivision (g). We disagree. It is clear from the record that the prosecutor’s comments on Juror No. 1589’s demeanor did not constitute an independent justification for his peremptory challenge but were intended to support his challenge on the ground that Juror No. 1589 expressed doubt about remaining impartial in light of his negative interactions with law enforcement. Specifically, the prosecutor argued that Juror No. 1589 was "visibly emotionally upset during his discussion" of what his family experienced, to the point that he had difficulty "articulating—getting the words out of his mouth," which suggested "he still feels a great deal of emotional angst over the way his family was treated during that investigation." The prosecutor did not suggest that Juror No. 1589’s emotion was a "problematic attitude, body language, or demeanor" in the abstract, or that he provided "unintelligent or confused answers." (§ 231.7, subd. (g)(1)(B)–(C).) The prosecutor further did not indicate the juror’s difficulty in responding to questions was a concern beyond the extent to which it reflected his negative feelings towards law enforcement and called into question his ability to be impartial. (Id., subd. (g)(1)(B).)
Gonzalez contends Ortiz, supra, 96 Cal. App.5th 768, 314 Cal.Rptr.3d 732, compels the conclusion that the prosecutor’s rationale was presumptively invalid under section 231.7, subdivision (g), since the trial court did not confirm his observations or require further explanation. Ortiz provides a helpful contrast, but does not mandate a particular result in this case.
In Ortiz, the prospective jurors were asked to complete a four-page questionnaire. S.H., an African American prospective juror, left an entire page blank, even though "the trial court emphasized that all four pages must be completed." (Ortiz, supra, 96 Cal.App.5th at p. 784, 314 Cal. Rptr.3d 732.) After questioning by the court and counsel, the prosecutor exercised a peremptory challenge against S.H. (Id. at p. 788, 314 Cal.Rptr.3d 732.) She argued S.H. " 'was not able to answer or understand some very basic questions,’ " " ‘seemed easily confused or unable to answer questions,’ " left a questionnaire page blank, and was " ‘soft-spoken, reluctant and timid (Id. at p. 789, 314 Cal. Rptr.3d 732.) The trial court confirmed the prosecutor’s observations regarding demeanor and asked the prosecutor "to ‘explain why the evasiveness matters.’" (Id. at pp. 790, 789, 314 Cal.Rptr.3d 732.) The prosecutor cited her inability to ascertain whether S.H. was being truthful or hiding bias. (Id. at p. 790, 314 Cal.Rptr.3d 732.) The trial court granted the peremptory challenge. (Id. at p. 791, 314 Cal.Rptr.3d 732.) The Court of Appeal affirmed, concluding substantial evidence supported the trial court’s findings in the confirmation stage (id. at pp. 801–803, 314 Cal.Rptr.3d 732) and the prosecutor’s reasons fulfilled the explanation requirement of section 231.7, subdivision (g)(2). (Id. at pp. 804– 805, 314 Cal.Rptr.3d 732.)
Thus, in Ortiz, the justification for the prosecutor’s peremptory challenge was the manner in which S.H. responded (or failed to respond) to questions. The content of S.H.’s answers did not cause the prosecutor to believe he lacked impartiality; instead, his confusion and evasiveness left her unable to make an assessment. The prospective juror’s demeanor and inability or unwillingness to answer questions were, standing alone, the prosecutor’s reasons for exercising the challenge. In contrast, the prosecutor here described Juror No. 1589’s expression of emotion to contextualize a challenge based on the substance of Juror No. 1589’s responses, namely his express doubts about his ability to be fair. Under these circumstances, we disagree that the prosecutor’s reference to Juror No. 1589’s emotion when answering a question must be construed as an independent, presumptively invalid, demeanor-based reason for the challenge under section 231.7, subdivision (g). Further considering the prosecutor’s challenge in light of section 231.7, subdivision (d)(3)(A) through (G), we find no error in the court’s order overruling the objection. Juror No. 1589 is not a member of the same cognizable group as Gonzalez. (§ 231.7, subd. (d)(3)(A)(i).) Gonzalez, Sebastian, Gaeta, Kathy H., and Detectives Armenta and Fernandez have Spanish surnames and may be perceived as Latino or Latina. There is no indication in the record that any person involved in the case was African American. (Id., subd. (d)(3)(A)(ii)– (iii).) It does not appear race or ethnicity bore on the facts of the case. (Id., subd. (d)(3)(B).) Although the prosecutor did not question Juror No. 1589 about his feelings towards law enforcement, the court did so at some length, and the prosecutor did not question any juror on this subject. (Id., subd. (d)(3)(C)(i), (iii).) No other juror provided the same response as Juror No. 1589 regarding law enforcement (id., subd. (d)(3)(D)), but other jurors who expressed doubts as to their ability to remain fair and impartial were dismissed for cause with the prosecutor’s agreement.
After this matter was submitted, People v. Caparrotta (July 16, 2024, D083314) 103 Cal. App.5th 874, 323 Cal.Rptr.3d 494, 2024 Cal. App. Lexis 456 was certified for publication. Caparrotta also does not compel the conclusion that the prosecutor’s statements should be construed as a demeanor-based reason for his challenge. In Caparrotta, defense counsel exercised peremptory challenges to two White, female jurors based on the first juror’s body language and " 'law enforcement connections’ " and the second juror's ‘‘inability to pay attention, … to be seated, and to impartially listen to the evidence …." (Id. at —, ____, ____ ____, 323 Cal.Rptr.3d 494, 2024 WL 3422334 at pp. *4, 5, 4-5, 2024 Cal.App. Lexis 456 at pp. *13, 15, 12–16.) The trial court disagreed with defense counsel's observations and sustained the section 231.7 challenges. (Id. at ____, 323 Cal.Rptr.3d 494, 2024 WL 3422334 at pp. *4-5, 2024 Cal.App. Lexis 456 at pp. *12–16.) The Court of Appeal affirmed, concluding, inter alia, defense counsel’s reasons were conclusively invalid under section 231.7, subdivision (g), because the court did not confirm the behaviors used to justify the challenges. (Id. at pp.____ ____, ____, 323 Cal.Rptr.3d 494, 2.024 WL 3422334 at pp. *7-8, *13, 2024 Cal.App. Lexis 456 at pp. *21–22, 34.) As in Ortiz, claims about the jurors’ demeanors were the primary grounds for the challenges. Further, defense counsel in Caparrotta did not claim that the first juror's body language bore any relationship to the justification based on her law-enforcement connections.
We conclude, as did the court in Jimenez, that we need not consider again here whether the prosecutor’s challenge "might be disproportionately associated with" a cognizable group. (§ 231.7, subd. (d)(3)(E).) The court in Jimenez observed that, although "[i]t is true that Juror Number 8’s belief that race affects how the law applies ‘might be disproportionately associated with’ a cognizable group … the Legislature placed this reason into the category of presumptively invalid reasons because it was disproportionately associated with protected groups. [Citation.]" (Jimenez, supra, 99 Cal.App.5th at p. 546, 318 Cal. Rptr.3d 35.) Because the court "already determined that … there was clear and convincing evidence that this reason bore on Juror Number 8’s ability to be fair and impartial," it declined to consider this circumstance again. (Ibid.) We decline to consider the circumstance again for the same reasons. Our prior conclusion also demonstrates that the prosecutor’s challenge was supported by the record. (§ 231.7, subd. (d)(3)(F).) Finally, there is no indication in the record that the prosecutor used peremptory challenges disproportionately against African American jurors in this or prior cases. (Id., subd. (d)(3)(G).) The record does not indicate that the prosecutor used a peremptory challenge against any other African American juror, and he objected to defense counsel’s peremptory challenge to a prospective juror he and the court perceived as African American, who had expressed no hesitation regarding her ability to be impartial.
Under the totality of the circumstances, we conclude there is no substantial likeli- hood that an objectively reasonable person would view cognizable group membership as a factor in the prosecutor’s use of a peremptory challenge to remove Juror No. 1589. Rather, an objectively reasonable person would determine that the prosecutor exercised the challenge because of the prospective juror’s inability to be fair and impartial, as suggested by his own acknowledgement that he did not know if he could evaluate all testimony fairly. (Jimenez, supra, 99 Cal.App.5th at p. 546, 318 Cal.Rptr.3d 35.) The trial court did not err in overruling the section 231.7 objection.
II.–V.**
DISPOSITION
Gonzalez’s sentence is vacated, and the matter is remanded for resentencing consistent with this opinion. In all other respects, the judgment is affirmed.
We concur:
EDMON, P. J.
EGERTON, J.
** See footnote *, ante.