Opinion
F084530
10-31-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DAVID MARTIN, Defendant and Appellant.
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Michael A. Canzoneri, Jennifer M. Poe and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF386978 Antonio A. Reyes, Judge.
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Michael A. Canzoneri, Jennifer M. Poe and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Defendant Anthony David Martin stands convicted by jury of second degree murder for shooting and killing his girlfriend on October 5, 2019. Defendant was also convicted on a related charge of illegally possessing an assault weapon (Pen. Code, § 30605, subd. (a)), and the jury found true the special allegations that defendant personally used, intentionally discharged, and caused the death of the victim by, a firearm (id., § 12022.53, subds. (b)-(d)).
Defendant was sentenced to 42 years to life as follows: 15 years to life for second degree murder (Pen. Code, § 187), plus a consecutive term of 25 years to life for intentional discharge of a firearm causing death (id., § 12022.53, subd. (d)), plus two years for illegal possession of an assault weapon (id., § 30605, subd. (a)).
On appeal, among other things, defendant maintains the prosecutor's use of certain peremptory challenges during jury voir dire violates Code of Civil Procedure section 231.7, and requires reversal. Section 231.7 applies in all jury trials in which jury selection begins on or after January 1, 2022, which was several months before the April 2022 trial in this matter. (§ 231.7, subd. (i).)
All further statutory references are to the Code of Civil Procedure unless indicated otherwise.
Section 231.7, subdivision (j), mandates that any error in overruling an objection to a peremptory challenge under section 231.7 must be deemed prejudicial and requires retrial. The peremptory challenge against Prospective Juror No. 15 was predicated on presumptively invalid reasons under section 231.7, subdivisions (e) and (g)(1)(B), and the presumption was not rebutted. As a result, the trial court should have sustained the objection to the peremptory challenge of Prospective Juror No. 15 and, under the new statute, we are compelled to reverse the conviction and remand for a new trial.
FACTUAL BACKGROUND
Evidence at trial indicated defendant and his girlfriend, Valorie Martinez, were engaged in a dispute about their relationship on the evening of October 4, 2019, that continued into the early morning hours of October 5, 2019. As a result of this dispute, defendant, while standing outside Martinez's home, fired at least four shots from an illegal assault rifle toward Martinez, who was standing behind the front security screen door to her home, killing her.
Martinez's friend, M.R., testified she had attended a party with Martinez on the evening of October 4, 2019, and defendant arrived at the party when Martinez was urinating outside because the bathroom of the home was occupied. Upon seeing this, defendant became angry with Martinez, and insisted they leave the party. Defendant, Martinez, and M.R. left in defendant's vehicle, and on the way to drop M.R. off at her house, defendant told M.R. he was going to "slap the fuck out of this bitch," referring to Martinez. When M.R. got out of the car, Martinez was crying and apologizing for defendant's conduct. At 3:49 a.m. M.R. received a text from Martinez's phone, but M.R. was asleep and did not see the text to respond.
Martinez's best friend, A.A., testified Martinez called her in the early hours of October 5, 2019; Martinez was upset and crying. She told A.A. that she and defendant had gotten into an argument at a party, and he had forced Martinez to leave. Martinez relayed to A.A. that defendant said he was going to slap Martinez. After defendant had dropped off M.R., Martinez said she and defendant had driven back to Martinez's house; she broke up with defendant and was trying to get him to leave her house, but defendant had asked her to get his gun, which she had been keeping for him in her bedroom. Martinez told A.A. that after she gave defendant his gun, he left. Martinez said she was currently packing up all defendant's things that had been left in her home, and she was going to immediately take them to where he was staying. While on the phone with A.A., Martinez proceeded to drive to defendant's grandparents' house, and dropped his stuff at the front door. As Martinez was driving back home, and while still on the phone with A.A., Martinez commented that she saw defendant's car going toward her home. A.A. heard Martinez getting out of her car, getting her keys, and getting back inside her house. Martinez then began speaking quietly to A.A., informing A.A. that she was back inside the house. Martinez said that defendant was coming back, and A.A. heard Martinez put the phone down and say, "'Anthony, what are you doing here?' ... 'If you don't put the gun down, I'm going to call the cops.'" The call with A.A. ended abruptly then, and although A.A. immediately tried to call Martinez, she did not answer.
Martinez's roommate of two years, R.T., testified he heard Martinez and defendant inside the house on the night Martinez was killed. He was awakened a little before 4:00 a.m. on October 5, 2019, by the sound of defendant and Martinez talking and then arguing. He heard defendant trying to get into the house and Martinez saying he could not come in unless he left his stuff outside; defendant eventually came into the house. R.T. heard drawers open and close and heard defendant saying he wanted to make sure his stuff was not there; then R.T. heard Martinez trying to get defendant to leave. R.T. heard what he thought was Martinez escorting defendant to the front door, and heard the front door open. R.T. heard Martinez say she hated defendant followed by "boom" noises and glass breaking. R.T. crawled out a window and called 911; he told the dispatcher he thought defendant had shot Martinez.
Martinez's neighbor, B.X., lived across the street from Martinez and was awake at the time of the shooting. He knew defendant, who had been a student in one of the high school classes B.X. taught before he retired. B.X. saw Martinez and defendant talking in front of Martinez's house around 3:00 a.m., and B.X. said hello. At some point after this, B.X. heard shots fired, and when he looked out the window, he saw a light-colored car similar to defendant's speeding down the road. B.X.'s wife called 911, and a police officer arrived quickly. B.X. saw a light on in the hallway of Martinez's house, and saw that Martinez was lying on the floor on her back.
The officer responding to the 911 calls found Martinez lying fatally wounded inside the doorway of her house with two visible gunshot wounds, one to her leg and the other to her neck. A crime scene investigation revealed spent .223-caliber shell casings. There were likely four shots discharged toward Martinez's front door. One bullet hole was found in the exterior wall of the home, two bullet holes were found going through the security screen door, and a strike mark was found on the concrete sidewalk. Other than the strike mark on the concrete sidewalk, the bullet holes to the house were located at 53, 49 and 44 inches above the ground; there were other nonpenetrating marks on the door lower to the ground, possibly indicating shrapnel.
Martinez's sister, B.F., spoke to defendant around 7:00 a.m. on October 5, 2019, after learning her sister had been killed. She told defendant he was being accused of killing Martinez, and he responded by saying "'What?' 'She didn't go to the hospital?'"; and "'Why would I do that?'" B.F. hung up on defendant; she subsequently received a text message from defendant's phone saying he did not know what was going on and to keep him posted.
Defendant was arrested later that morning in front of his worksite while eating breakfast inside his car. Expended .223-caliber bullet cartridges were found in defendant's car, and a search of his storage unit, which defendant had accessed that morning, revealed an AR-15 rifle with no serial number and .223-caliber ammunition. Gunshot residue was detected on defendant's hands. The ammunition found in defendant's car and storage unit matched the caliber of spent casings found at Martinez's home.
At trial, the defense's primary theory was that the killing was not intentional. The jury found defendant not guilty of first degree murder, but convicted him of second degree murder and of being in possession of an illegal assault weapon. The jury also found true defendant had personally used and personally and intentionally discharged a firearm causing death to the victim within the meaning of Penal Code section 12022.53, subdivisions (b), (c) and (d).
Defendant was sentenced to a determinate term of two years, followed by an indeterminate term of 40 years to life.
DISCUSSION
I. Peremptory Challenge During Juror Selection
Defendant argues that three peremptory challenges the prosecutor made during voir dire were improper under section 231.7, and the trial court erred in failing to sustain the defense objections.
A. Applicable Law
"Peremptory challenges are a long-standing feature of civil and criminal adjudication. But the exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws under the Fourteenth Amendment to the federal Constitution. (Batson [v. Kentucky (1986)] 476 U.S. 79; United States v. Martinez-Salazar (2000) 528 U.S. 304, 315.) Such conduct also 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 state Constitution. (People v. [Wheeler (1978)] 22 Cal.3d 258, 276-277.)" (People v. Gutierrez (2017) 2 Cal.5th 1150, 1157.)
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).
Before January 1, 2022, trial courts examined peremptory challenges under the three-step inquiry established by Batson and Wheeler. Under this inquiry, the 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. (People v. Rhoades (2019) 8 Cal.5th 393, 423 (Rhoades).) Second, once the defendant has made out a prima facie case, the burden shifts to the state to explain adequately the exclusion by offering permissible neutral justifications for the strikes. (Ibid.) Third, if a neutral explanation is tendered, the trial court must then decide whether the objecting party has proven purposeful discrimination against a protected group. (Ibid.) The Batson framework was originally designed to protect against "[p]urposeful racial discrimination" in the exercise of peremptory challenges (Batson, supra, 476 U.S. at p. 86), and it has been extended to apply to discrimination based on other types of group bias (see People v. Gutierrez, supra, 2 Cal.5th at p. 1158 ["At issue in a Batson/Wheeler motion is whether any specific prospective juror is challenged on account of bias against an identifiable group distinguished on racial, religious, ethnic, or similar grounds."]).
The Batson/Wheeler framework, however, has notable flaws. (See, e.g., Rhoades, supra, 8 Cal.5th at pp. 469-470 (dis. opn. of Liu, J.) [examining Batson/Wheeler framework and concluding that "it is time for a course correction in our Batson jurisprudence"]; accord, People v. Harris (2013) 57 Cal.4th 808, 863-891 (Harris) (conc. opn. of Liu, J.) [examining Batson framework and concluding "our Batson jurisprudence falls short of the vigilance required by the constitutional guarantee of equal protection of the laws"]; People v. Bryant (2019) 40 Cal.App.5th 525, 543-549 (Bryant) (conc. opn. of Humes, J.) [explaining Batson/Wheeler framework is ineffective at eliminating purposeful discrimination and may even facilitate implicit bias in jury selection process].) Not only is it difficult to ferret out purposeful discrimination under Batson, the Batson framework does not protect against implicit bias. (Bryant, supra, at p. 545 (conc. opn. of Humes, J.).)
Recognizing the limitations of the Batson/Wheeler inquiry, including those articulated by Justice Liu in his dissenting opinion in Rhoades and his concurring opinion in Harris, as well as those Justice Humes highlighted in his concurring opinion in Bryant, the Legislature passed Assembly Bill No. 3070 (2019-2020 Reg. Sess.) (Assembly Bill 3070) in 2020. (See Assem. Com. on Judiciary, Analysis of Assem. Bill 3070 (2019-2020 Reg. Sess.) as amended May 4, 2020, pp. 8-9 [recognizing Justice Liu's criticism of the Batson/Wheeler procedure, among other studies and critiques of the framework].)
In passing Assembly Bill 3070, the Legislature made several express findings, including that "peremptory challenges are frequently used in criminal cases to exclude potential jurors from serving based on their race, ethnicity, gender, gender identity, sexual orientation, national original, or religious affiliation, or perceived membership in any of those groups, and that exclusion from jury service has disproportionately harmed African Americans, Latinos, and other people of color." (Legis. Counsel's Dig. of Assem. Bill 3070 (Stats. 2020, ch. 318, § 1(b)) Summary Dig., p. 2.)
The Legislature further found that "the existing [Batson/Wheeler] procedure for determining whether a peremptory challenge was exercised on the basis of a legally impermissible reason has failed to eliminate that discrimination." (Legis. Counsel's Dig. of Assem. Bill 3070 (Stats. 2020, ch. 318, § 1(b)) Summary Dig., p. 2.) Under the traditional Batson/Wheeler framework, "requiring proof of intentional bias renders the procedure ineffective" and "many of the reasons routinely advanced to justify the exclusion of jurors from protected groups are in fact associated with stereotypes about those groups or otherwise based on unlawful discrimination." (Legis. Counsel's Dig. of Assem. Bill 3070 (Stats. 2020, ch. 318, § 1(b)) Summary Dig., p. 2.)
To address these deficiencies of the Batson/Wheeler framework, Assembly Bill 3070 enacted section 231.7. Under this statute, "A party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups." (Id., subd. (a).) The statute refers to these as cognizable groups. (Id., subds. (d)(C)(3), (e)(13), (f).)
Next, the statute provides that "A party, or the trial court on its own motion, may object to the improper use of a peremptory challenge under subdivision (a). After the objection is made, any further discussion shall be conducted outside the presence of the panel. The objection shall be made before the jury is impaneled, unless information becomes known that could not have reasonably been known before the jury was impaneled." (§ 231.7, subd. (b).)
"Notwithstanding Section 226, upon objection to the exercise of a peremptory challenge pursuant to this section, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised." (§ 231.7, subd. (c).)
Section 226, subdivision (b), provides that "A challenge to an individual juror may be taken orally or may be made in writing, but no reason need be given for a peremptory challenge, and the court shall exclude any juror challenged peremptorily."
The court must then evaluate the reasons given to justify the peremptory challenge "in light of the totality of the circumstances." (§ 231.7, subd. (d)(1).) To do so, each reason stated is placed into one of two groups for evaluation: (1) presumptively invalid reasons and (2) all other reasons that are not presumptively invalid. (Id., subds. (d)(1), (e), (g).)
Presumptively invalid reasons include the following: (1) expressing distrust of or having a negative experience with law enforcement or the criminal legal system; (2) expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner; (3) having a close relationship with people who have been stopped, arrested, or convicted of a crime; (4) a prospective juror's neighborhood; (5) having a child outside of marriage; (6) receiving state benefits; (7) not being a native English speaker; (8) the ability to speak another language; (9) dress, attire, or personal appearance; (10) employment in a field that is disproportionately occupied by members listed in section 231.7, subdivision (a), or that serves a population disproportionately comprised of members of a group or groups listed in section 231.7, subdivision (a); (11) lack of employment or underemployment of the prospective juror or prospective juror's family; (12) a prospective juror's apparent friendliness with another prospective juror of the same group, as listed in section 231.7, subdivision (a); (13) any justification that is similarly applicable to a questioned prospective juror or jurors, who are not members of the same cognizable group as the challenged prospective juror, but were not the subject of a peremptory challenge by that party. (Id., subd. (e)(1)-(13).)
The presumption of invalidity as to these reasons may be rebutted if the party exercising the peremptory challenge can show by clear and convincing evidence that (1) an objectively reasonable person would view the rationale as unrelated to a prospective juror's membership or perceived membership in a cognizable group identified in section 231.7, subdivision (a); and (2) the reasons articulated bear on the prospective juror's ability to be fair and impartial in the case (id., subd. (e)).
The term "'clear and convincing' refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror's cognizable group membership, bearing in mind conscious and unconscious bias. To determine that a presumption of invalidity has been overcome, the factfinder shall determine 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." (§ 231.7, subd. (f).)
A separate subset of presumptively invalid reasons is set forth in subdivision (g) of the statute. (§ 231.7, subd. (g)(1)(A)-(C).) These reasons "have historically been associated with improper discrimination in jury selection:
"(A) The prospective juror was inattentive, or staring or failing to make eye contact.
"(B) The prospective juror exhibited either a lack of rapport or problematic attitude, body language or demeanor.
"(C) The prospective juror provided unintelligent or confused answers." (§ 231.7, subd. (g)(1)(A)-(C).)
A reason from this subset used to justify a peremptory challenge is "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. Even with that confirmation, 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." (§ 231.7, subd. (g)(2), italics added.)
These two categories of presumptively invalid reasons were designated as such by the Legislature to disallow reasons that are commonly and historically associated with racial and ethnic groups and women, unless they can be established to be unrelated to the prospective juror's membership or perceived membership in a cognizable group. (Assem. Com. on Judiciary, Analysis of Assem. Bill 3070, as amended May 4, 2020, p. 10.)
Under subdivision (d), reasons that are not presumptively invalid are evaluated under a substantial likelihood standard from the perspective of an objectively reasonable person. (§ 231.7, subd. (d)(1).) The court is to determine from the totality of circumstances whether "there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge ...." (Ibid.) If so, the objection must be sustained. (Ibid.) The phrase "'substantial likelihood' means more than a mere possibility but less than a standard of more likely than not." (Id., 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." (Id., subd. (d)(2)(A).) The term unconscious bias includes implicit and institutional biases. (Id., subd. (d)(2)(C).)
In evaluating the reasons under these respective standards, "the circumstances the court may consider include, but are not limited to, any of the following:
"(A) Whether any of the following circumstances exist: "(i) The objecting party is a member of the same perceived cognizable group as the challenged juror. "(ii) The alleged victim is not a member of that perceived cognizable group. "(iii) Witnesses or the parties are not members of that perceived cognizable group.
"(B) Whether race, ethnicity, gender, gender identification, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, bear on the facts of the case to be tried.
"(C) The number and types of questions posed to the prospective juror, including, but not limited to, any of the following:
"(i) Consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the concerns later stated by the party as the reason for the peremptory challenge pursuant to subdivision (c).
"(ii) Whether the party exercising the peremptory challenge engaged in cursory questioning of the challenged potential juror.
"(iii) Whether the party exercising the peremptory challenge asked different questions of the potential juror against whom the peremptory challenge was used in contrast to questions asked of other jurors from different perceived cognizable groups about the same topic or whether the party phrased those questions differently.
"(D) Whether other prospective jurors, who are not members of the same cognizable group as the challenged prospective juror, provided similar, but not necessarily identical, answers but were not the subject of a peremptory challenge by that party.
"(E) Whether a reason might be disproportionately associated with a race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups.
"(F) Whether the reasons given by the party exercising the peremptory challenge was contrary to or unsupported by the record.
"(G) Whether the counsel or counsel's office exercising the challenge has used peremptory challenges disproportionately against a given race, ethnicity, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, in the present case or in past cases, including whether the counsel or counsel's office who made the challenge has a history of prior violations under Batson v. Kentucky (1986) 476 U.S. 79, People v. Wheeler (1978) 22 Cal.3d 258, Section 231.5, or this section." (§ 231.7, subd. (d)(3)(A)-(G), italics added.)
B. Standard of Review
On appeal, the overruling of an objection under section 231.7 is reviewed de novo "with the trial court's express factual findings reviewed for substantial evidence." (Id., subd. (j).) The appellate court may 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." (Ibid.) The appellate court is to consider only those reasons actually given by the trial court and may "not speculate as to or consider reasons that were not given to explain either the party's use of the peremptory challenge or the party's failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court." (Ibid.) If the appellate court concludes the trial court erred by overruling an objection, "that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial." (Ibid.)
C. Prospective Juror No. 15
1. Background
Upon initial voir dire questioning by the trial court, Prospective Juror No. 15 (A.R.), who has a Latino surname, indicated her husband had been arrested and convicted for drug distribution about 20 years before. They were not married at the time, and this occurred before she met him. In responding to an informal questionnaire the court asked the venire to answer during jury selection, A.R. also indicated her nephew had a current case in Tulare County:
This questionnaire was not included in the record on appeal, and we were unable to obtain it as a trial court exhibit upon request.
"PROSPECTIVE JUROR NO. 15: ... My nephew is currently in the system right now in Tulare County.
"THE COURT: Case here in Tulare County?
"PROSPECTIVE JUROR NO. 15: It is.
"THE COURT: Were you involved in it at all as a witness or you've been going to court or anything?
"PROSPECTIVE JUROR NO. 15: I've been meeting with his social worker and discussing it.
"THE COURT: Okay. Is he an adult, or is he a minor?
"PROSPECTIVE JUROR NO. 15: He's an adult.
"THE COURT: Is the case still going on?
"PROSPECTIVE JUROR NO. 15: Yes.
"THE COURT: So you're meeting with the social worker to try to deal with his issues?
"PROSPECTIVE JUROR NO. 15: Yes.
"THE COURT: Do [you] go to court with him?
"PROSPECTIVE JUROR NO. 15: No.
"THE COURT: Okay. When is his next court date, if you know?
"PROSPECTIVE JUROR NO. 15: I believe it's next week.
"THE COURT: Next week? Here in Visalia?
"PROSPECTIVE JUROR NO. 15: Yes.
"THE COURT: Because of that, is that going to cause you any issues of being a juror in this case?
"PROSPECTIVE JUROR NO. 15: No. [¶] ... [¶]
"THE COURT: Do you feel you can be fair and impartial?
"PROSPECTIVE JUROR NO. 15: Yes.
"THE COURT: Thank you."
On questioning by defense counsel, A.R. stated she had never shot a gun, and when asked if she had a "particular aversion or fear of guns," she answered, "We-like, as a kid, we went deer hunting, but we used bow and arrow. It's just not an option." She was not questioned by the prosecutor.
The prosecutor exercised a peremptory challenge to remove A.R. Defense counsel objected, and the court observed she was a "[r]eally light complexion lady"; defense counsel replied, "From the surname." The prosecutor indicated "[s]he did not appear to be Hispanic to me." The court responded, "We don't know." The following interchange among the court and counsel followed:
"[PROSECUTOR]: So I will say two primary factors. One, she was incredibly soft spoken. I thought it would be very difficult for her to deliberate appropriately given how much the Court had to coax her into responding loud enough to be heard. Additionally, the level of involvement that she has with her nephew's case made me believe that she would be overly generous to the defense because of what was going on in her involvement with the social worker and her nephew.
"[DEFENSE COUNSEL]: I didn't find her to be soft spoken at all. She talked about drug distribution easily. She talked about using a bow and arrow as a kid easily. I can hear her just fine. The fact that one is soft spoken I don't think is a reason. Whether she can deliberate, she seems to be able to articulate and describe things and follow my questions quite easily. I think she would participate. The other reason that the People argue is exactly a reason that the legislature says you can't do[] [¶] . [¶] . [w]hich is to exclude someone with a peremptory challenge based on their reaction to the criminal system.
"THE COURT: [Prosecutor]?
[PROSECUTOR]: Again, it's not her accusation. She did not say if she had feelings one way or the other as a result of this. It's her level of involvement in an ongoing criminal case.
"THE COURT: If I remember right, this was her nephew. She was actively involved in his juvenile case. It's a juvenile case, if I remember right.
"[PROSECUTOR]: No. Adult case.
"THE COURT: Still going on?
"[DEFENSE COUNSEL]: Correct. That's what she said. I don't know if it was an adult or not. It was a nephew."
A second defense attorney, who was not posing questions during the voir dire, responded this "appears to be [a] presumptively invalid reason [to] disqualify someone based on the fact [that she is] close[ly] related to someone who was stopped, arrested, or convicted of a crime."
The court stated that the prosecutor's "main reason is just right now she's actively involved in the case.... [¶] ... [¶] ... I think that's a bit different. Your objection is overruled."
2. Analysis
a) Soft-spoken Demeanor
The prosecutor's first basis for the challenge was that A.R. had a soft-spoken demeanor and the prosecutor was concerned about her ability to deliberate. Given A.R.'s surname, she was a perceived member of a cognizable racial group under section 231.7, subdivision (a), and the defense objected.
Under section 231.7, subdivision (g)(1)(B), it is presumptively invalid to exercise a strike against a prospective juror who is a member, or perceived member, of a cognizable group because that juror has exhibited a problematic demeanor. While this might have been a facially neutral basis to justify a strike under the Batson/Wheeler framework, it is not so under section 231.7. As already noted, the Legislature adopted this presumptively invalid category of reasons because demeanor-based justifications are disproportionately invoked to strike African Americans, Latinos and other people of color from the jury. (See Assem. Com. on Judiciary, Analysis of Assem. Bill, as amended May 4, 2020, p. 10 [noting the new law is designed to disallow "'facially neutral'" reasons for a peremptory challenge where those reasons are commonly associated with race and ethnic groups and women, unless it can be shown challenge is unrelated to prospective juror's identity groups]; see also Semel et al., Whitewashing the Jury Box (2020) Berkeley Law Death Penalty Clinic, p. 19 (hereafter Semel) ["As with Black jurors, prosecutors most often, in 41.1% (78) of these 190 cases, offered demeanor-based reasons for striking Latinx jurors."].)
In the report researched and authored by Semel et al., almost 700 cases decided by the California Courts of Appeal from 2006 to 2018 were evaluated. In nearly 72 percent of these cases, district attorneys used their strikes to remove Black jurors. They struck Latinx jurors in about 28 percent of the cases, Asian-American jurors in less than 3.5 percent of the cases, and White jurors in only 0.5 percent of the cases. Prosecutors most often gave demeanor-based justifications for their strikes against Black and Latinx jurors. The next most common reason related to a prospective juror's relationship with someone who had been involved in the criminal legal system. (Semel, supra, p. vi [Finding No. 7].)
Being soft-spoken is a type of demeanor (see generally People v. Arias (1996) 13 Cal.4th 92, 139 [soft-spoken considered a demeanor that might signal an inability to discuss or maintain a juror's views during deliberation]), which the prosecutor here found problematic; thus, under the new statute, it was a presumptively invalid reason for the challenge against A.R. (§ 231.7, subd. (g)(1)(B).)
The presumption of invalidity as to this reason under section 231.7, subdivision (g)(1)(B) may be rebutted only if (1) the trial court is able to confirm the asserted behavior occurred based on the court's own observations or the observations of the objecting party; and (2) the counsel offering the reason explains why the demeanor matters to the case to be tried. (§ 231.7, subd. (g)(2).) Moreover, "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." (Id., subd. (j).) Here, the trial court did not confirm or otherwise find that A.R. was soft-spoken, defense counsel argued she was not soft-spoken, and the transcript reveals that A.R. was asked to "[s]peak up" only once when she first started answering the court's initial voir dire questions. Without the court's express confirmation of A.R.'s soft-spoken demeanor, the presumption of invalidity could not be rebutted under section 231.7, subdivision (g)(2), as a matter of law, and the reason was an invalid basis to strike A.R.
b) Close Relationship With Someone Who Has Been Stopped, Arrested or Convicted of a Crime
The prosecutor's second reason for the strike against A.R. was her involvement in her nephew's criminal case, indicating an underlying arrest. The trial court overruled the defense objection the peremptory was based on section 231.7, subdivision (e)(3), that provides having a close relationship with people who have been stopped, arrested, or convicted of a crime is a presumptively invalid basis for a peremptory challenge. The trial court overruled the objection with little comment other than appearing to indicate this was not a presumptively invalid reason because it was distinct from A.R. having a close relationship with someone who had been stopped, arrested or convicted of a crime.
Neither party directly addresses the scope of section 231.7, subdivision (e)(3), or whether the trial court was correct by construing the prosecutor's justifying reason as one that is not presumptively invalid. In his reply brief, defendant cites section 231.7, subdivision (e)(3), and argues the presumption of invalidity as to the reasons to strike A.R. was not rebutted. The People argue the circumstances indicate there is no substantial likelihood that an objectively reasonable person would view race as a factor in the use of the peremptory challenge against A.R., which is the standard that applies to reasons that are not presumptively invalid.
Currently, there is no decisional law examining the scope of section 231.7, subdivision (e)(3), but we draw some guidance from the Washington Supreme Court. In 2018, the Washington Supreme Court adopted Washington General Rule 37 (GR 37) to address deficiencies with the Batson test. (State v. Jefferson (2018) 192 Wash.2d 225, 243.) In 2020, our Legislature modeled Assembly Bill 3070 on many of the published workgroup recommendations made to the Washington Supreme Court in promulgation of GR 37. (See Assem. Floor Analysis, 3d reading analysis of Assem. Bill 3070, as amended May 4, 2020, p. 3 [noting Assem. Bill 3070 incorporates suggestions from a workgroup convened by the Washington Supreme Court to address concerns with Batson procedure]; Assem. Com. on Judiciary, Analysis of Assem. Bill 3070, as amended May 4, 2020, p. 10 [stating Assem. Bill 3070 incorporates many suggestions by the workgroup convened by the Washington Supreme Court].)
As a result, although different in certain respects, GR 37 and section 231.7 share a similar structure for making, objecting to, and ruling on peremptory challenges. Notably, GR 37 provides that once a party or the court objects to a peremptory challenge, the moving party must state the reason or reasons to justify it. (GR 37(d).) The trial court is then to assess the reasons offered "in light of the totality of circumstances" from the standpoint of an "objective observer," who is defined as someone "aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State." (GR 37(e) &(f).) Nearly identical to section 231.7, subdivisions (e) and (g), GR 37 designates two categories of enumerated reasons that are "presumptively invalid" as they "have been associated with improper discrimination in jury selection Washington State." (GR 37(h), (i).) One of these presumptively invalid reasons is "having a close relationship with people who have been stopped, arrested, or convicted of a crime." (GR 37(h)(iii).)
In 2022, Washington's high court decided State v. Tesfasilasye (2022) 200 Wash.2d 345 (Tesfasilasye). That case involved a sexual assault offense committed against a disabled person. (Id. at p. 347.) During jury selection, a prospective Korean juror (Juror No. 25) was interviewed individually and revealed to the trial court and counsel that her son had been accused of placing a young girl's hand on his groin many years before when he was 12 years old. (Id. at pp. 347-348.) Her son was charged with a crime and, on the advice of counsel, he pleaded guilty even though he denied the accusation. (Id. at p. 348.) The prosecutor sought to strike Juror No. 25, and the defense objected. The prosecutor denied that the strike was exercised because Juror No. 25 was an Asian woman, and instead sought to strike her because of concerns she could not be fair and impartial due to her traumatic personal experience with her son's sexual assault conviction. (Id. at pp. 349-350.) The trial court found this reason to be race-neutral and concluded the presumption of invalidity had been overcome. (Id. at p. 351.) The Washington Supreme Court reversed, characterizing this basis for the peremptory challenge as coming within the presumptively invalid justification of "'having a close relationship with people who have been stopped, arrested, or convicted of a crime'" under GR 37(h)(iii), and ultimately concluding the presumption of invalidity was not rebutted. (Tesfasilasye, supra, at p. 359.)
Here, the peremptory challenge against A.R. is analogous to the challenge against Juror No. 25 in Tesfasilasye. The prosecutor in Tesfasilasye phrased the justification around how the prosecutor believed Juror No. 25 viewed the fairness of her son's conviction, not just that she had a son who had suffered a prior criminal conviction. Likewise, the prosecutor in this case phrased his justification around how he viewed A.R.'s involvement in her nephew's ongoing criminal matter rather than just the fact A.R. had a nephew who had been arrested and was being prosecuted for a criminal offense. Yet, in both cases, the reasons directly implicate the prospective jurors' close relationships with people who had been stopped, arrested, or convicted of a crime.
Having a close relationship with someone who has been stopped, arrested or convicted of a crime may precipitate a specific view of those events. A prospective juror might also have some personal involvement in the criminal legal process, including talking with parole or probation officers, attending court hearings, or being interviewed by social workers for purposes incidentally related to the close relation's underlying stop, arrest or conviction. These are predictable facets or byproducts of having a close relationship with a person stopped, arrested or convicted of a crime and, as such, they come within this (and perhaps a similar) presumptively invalid reason for exercising a peremptory challenge. (Compare § 231.7, subd. (e)(3) [having a close relationship with people who have been stopped, arrested or convicted of a crime] with § 231.7, subd. (e)(1) [expressing distrust of or having a negative experience with law enforcement of the criminal legal system].) When the justification for the peremptory challenge arises from the fact that a prospective juror has a close relationship with someone who has been stopped, arrested or convicted of a crime, it comes within section 231.7, subdivision (e)(3).
Parsing section 231.7, subdivision (e)(3), more rigidly would encourage its use in a cloaked form: so long as the party making the peremptory challenge framed it around some derivative aspect of the close relation's stop, arrest or conviction (as opposed to the express fact that the close relation was stopped, arrested or convicted), the reason would not be presumptively invalid. Yet, these aspects arise only because the prospective juror has a close relationship with people who were stopped, arrested or convicted. Strict construction of the scope of section 231.7, subdivision (e), would effectively circumvent this provision of the statute, and it would not accord with the Legislature's express statement of intent that Assembly Bill 3070 "be broadly construed to further the purpose of eliminating the use of group stereotypes and discrimination, whether based on conscious or unconscious bias, in the exercise of peremptory challenges." (Legis. Counsel's Dig. of Assem. Bill 3070 (Stats. 2020, ch. 318, § 1(b)) Summary Dig., p. 2.)
It is certainly possible a juror's feelings about a close relation's conviction, or a juror's involvement in proceedings arising from a close relation's stop or arrest could bear on a prospective juror's ability to be fair and impartial and, as such, this might serve to rebut the presumption of invalidity so long as supported by clear and convincing evidence. Nevertheless, when the reason for the strike arises from a prospective juror's close relationship with someone who has been stopped, arrested or convicted, it comes within section 231.7, subdivision (e)(3), and the presumption of invalidity attaches. Here, because the prosecutor invoked this presumptively invalid reason to strike A.R., and the other demeanor-based reason stated was also presumptively invalid, the defense objection to the peremptory challenge was required to be sustained unless the prosecutor could overcome the presumption as provided in section 231.7, subdivisions (e) and (f).
To overcome the presumption, the party exercising the peremptory challenge must "show by clear and convincing evidence [(1)] that an objectively reasonable person would view the rationale as unrelated to a prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation or perceived membership in any of those groups, and [(2)] that the reasons articulated bear on the prospective juror's ability to be fair and impartial in the case[.]" (§ 231.7, subd. (e).)
As noted, the term "'clear and convincing'" refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror's cognizable group membership, bearing in mind conscious and unconscious bias. (§ 231.7, subd. (f).) "To determine that a presumption of invalidity has been overcome, the factfinder shall determine 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." (Ibid., italics added.)
The record here is too thin to conclude the presumption of invalidity has been rebutted under the clear and convincing standard. Certainly, there are factors and circumstances that weigh in favor of a conclusion the prosecutor's rationale was not related to A.R.'s perceived membership in a cognizable group. For example, another female juror with a Latino surname whose uncle had suffered a criminal conviction was not challenged by the prosecutor and was seated on the jury (Juror No. 6). (Cf., § 231.7, subd. (d)(3)(D).) Nothing about perceived or actual membership in a cognizable group bore on any of the facts in this case-at its core, the prosecution involved an act of domestic violence and did not center on, or tangentially involve, any issues of race; the victim was in the same perceived cognizable group as A.R., as were several of the prosecutor's important percipient witnesses. (Id., subd. (d)(3)(A)(i) & (ii), (d)(3)(B).) Having requested and received the juror key exhibit from the trial court, we note four of the 12 jurors seated had Latino surnames (Jurors Nos. 4, 6, 9 &10), and three of those four were women against whom the prosecutor made no challenges.
Yet, the prosecutor knew nothing about the nature of A.R.'s nephew's case and next to nothing about A.R.'s involvement in those proceedings. In questioning by the court, A.R. said she had spoken to her nephew's social worker about his case, but that hardly establishes she was somehow actively involved in his legal proceedings; indeed, she said she did not attend his court hearings. There was no explanation why A.R. was in contact with a social worker about her nephew's case-A.R. indicated her nephew was an adult, so it is possible A.R.'s contact with a social worker was entirely tangential to her nephew's criminal matter.
Further, there is no information or indication why contact with her nephew's social worker about an unspecified criminal action would bear on A.R.'s ability to be fair and impartial as a juror here, and the prosecutor did not seek out any additional information from A.R. The prosecutor also articulated nothing about his knowledge of, or a connection to, if any, the charges and prosecution against A.R.'s nephew, nor did the prosecutor explain how the pending nature of A.R.'s nephew's case or the fact it was apparently being prosecuted in the same county as the instant case might bear on A.R.'s ability to be fair and impartial. Instead, the prosecutor specified it was A.R.'s "level of involvement" with her nephew's ongoing case as the basis for the peremptory challenge. We cannot consider or speculate about reasons or justifications the prosecutor did not offer. (§ 231.7, subd. (j) ["The 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 either the party's use of the peremptory challenge or the party's failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror ...."].)
At best, there is evidence only that A.R. had a nephew with some type of criminal case pending before the Tulare Superior Court about which she had talked to his social worker. The court asked her if anything about her nephew's case would preclude her from being fair and impartial, and she said no. Based on the limited information presented, it is difficult to discern what factors bear specifically on A.R.'s ability to be fair and impartial in this case. A close relationship with someone who has been arrested is designated a presumptively invalid reason because research has shown it has been disproportionately associated with strikes against people of color, including Latinos, and is often associated with implicit or unconscious bias. (See, e.g., Semel, supra, at p. 20 ["Nearly as often as demeanor-based reasons, prosecutors based their strikes on a Latinx juror's close relationship with someone who had a negative experience with law enforcement, including having been stopped, arrested, or convicted of a crime. Prosecutors offered this reason in 33.7% (64) of cases."].) By invoking a presumptively invalid justification, it was incumbent on the prosecution to show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to the prospective jurors' membership in a cognizable group and that the reasons articulated bear on that juror's ability to be fair and impartial in the case. (§ 231.7, subd. (e).)
Other than pointing to the justification itself, the prosecutor did not explain his reasoning with evidence of why A.R.'s involvement with her nephew's criminal case, even assuming she was somehow involved by talking about the case with a social worker, had bearing on her ability to be fair and impartial in this case: the record does not reflect anyone even knew why A.R.'s nephew had been arrested and charged. (See People v. Jaime (2023) 91 Cal.App.5th 941, 947 [reliance on presumptively invalid reason is not, by itself, enough to overcome the presumption of invalidity under § 231.7, subd. (e)].)
With so little explanation or evidence why this reason was given, it is impossible to conclude it is highly probable an objectively reasonable person would view this rationale as unrelated to A.R.'s perceived membership in a cognizable group and that the reasons articulated bear on her ability to be fair and impartial in the case. The presumption of invalidity was not rebutted, and the defense objection should have been sustained. (§ 231.7, subds. (e), (f).)
Finally, given the limited record here, even if the prosecutor's justification was not presumptively invalid, there nonetheless remains a substantial likelihood that an objectively reasonable person would view A.R.'s perceived membership in a cognizable group as a factor in the use of the peremptory, particularly considering the existence of implicit biases that are not consciously held. (§ 231.7, subd. (d)(1), (d)(2)(A) &(C).) The prosecutor commented he did not think A.R. was Latino by appearance, but she did have a Latino surname, which the prosecutor knew. While there are circumstances suggesting cognizable group membership was not a conscious factor for the challenge, as noted above, the prosecutor asked no questions of A.R. related to the justification for the strike (§ 231.7, subd. (d)(3)(C)(i)), the reason given was unsupported by the record (talking to a social worker about a case, without more information, does not demonstrate active involvement in a criminal case) (id., subd. (d)(3)(F)), there is no evidence why contact with a social worker about her nephew's criminal case bore on A.R.'s ability to be fair and impartial, and, again, this reason is disproportionately associated with strikes against Latino jurors (id., subd. (d)(3)(E)). Given these factors, particularly the prosecutor's election to ask A.R. no questions and the limited record, an objectively reasonable person would conclude there is a substantial likelihood (i.e., more than a "mere possibility" (id., subd. (d)(2)(B)) the challenge was based on A.R.'s perceived membership in a cognizable group.
Although the defense objection was not made on this ground, A.R.'s gender also placed her in a cognizable group.
Based on the foregoing, we are without an adequate basis to conclude the trial court did not err in overruling the objection to the prosecutor's peremptory challenge against A.R. Section 231.7, subdivision (j), specifies that "Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial." As a result, we are compelled to reverse the conviction and remand for a new trial. We therefore do not address defendant's remaining arguments.
DISPOSITION
The judgment is reversed. The case is remanded for a new trial.
WE CONCUR: LEVY, Acting P. J., PENA, J.