Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR 193532
Lambden, J.
After his conviction for attempted second degree robbery with firearm enhancements, defendant appealed and challenged, among other things, that there was reversible error in jury selection under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). In our nonpublished opinion, People v. Allen (Allen II)(Dec. 14, 2005, A101086), we concluded that, under Johnson v. California (2005) 545 U.S. 162, the trial court had used the wrong standard in determining whether there had been a prima facie showing of bias in the selection of the jury. We remanded the case to permit the trial court to inquire into the prosecutor’s reasons for removing two African-American jurors from the panel.
At the Wheeler/Batson hearing below, neither the attorneys nor the court had the jurors’ questionnaires. The prosecutor provided his reasons for peremptorily striking Juror No. 1 and Juror No. 12, two of the three African-American jurors involved in the jury selection process. The trial court denied defendant’s Wheeler motion and found the prosecutor’s reasons credible and not based on racial group bias. Defendant appeals, and contends that the record does not support the prosecutor’s reasons for peremptorily striking Juror No. 12, giving rise to an inference of discriminatory intent. We agree and reverse the lower court’s denial of defendant’s motion for a new trial.
BACKGROUND
On September 7, 2001, an information was filed charging defendant with attempted second degree robbery (Pen. Code, §§ 211, 664), with two firearm use enhancements (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). During jury selection, defendant made two Wheeler/Batson objections to the prosecutor’s use of peremptory challenges to remove Juror No. 1 and Juror No. 2, two African-American jurors, from the jury panel. The trial court overruled those objections, stating that no prima facie case of group bias in jury selection was evident.
All further unspecified code sections refer to the Penal Code.
The court stated: “During voir dire, [defense counsel], you made two motions. And just as a practical consideration, if you read the case law, the fact that somebody exercises a challenge against a member of a particular class or race of individual on the first challenge, that doesn’t prove anything. And I think it’s, quite frankly, inappropriate the very first time that your opponent exercises a challenge against somebody of African-American background to make the motion, because I don’t think, at this point, you can show that there’s been a systematic exclusion of anybody.
The facts underlying defendant’s crime are set forth in detail in our prior nonpublished opinions and only those facts and procedures relevant to the issue on appeal are set forth here. Defendant had been drinking at a bar where he had previously worked. He left the bar and returned after it closed wearing a chef’s uniform and a sweater over his head; he was brandishing a pistol. He demanded money from the bartenders who were there. However, when recognized by one of the bartenders, defendant removed the sweater from his head, unloaded his gun, and placed the bullets on the bar table. He put the gun on the floor, where a bartender took it and placed it on a cabinet behind the bar. Defendant left and then returned, claiming that he had another gun in his car.
At trial, defense counsel argued lack of specific intent to rob due to intoxication and an overall depressed and suicidal mental state. The jury found defendant guilty of attempted second degree robbery (§§ 211, 664) and found the enhancing allegations of personal firearm use to be true. The court sentenced defendant to a mitigated term of 16 months for the robbery attempt, plus 10 years for the more serious firearm enhancement (§ 12022.53, subd. (b)); another enhancement was stayed (§ 12022.5, subd. (a)(1)).
On appeal, defendant raised two issues, including reversible error in jury selection under Wheeler, supra, 22 Cal.3d 258 and Batson, supra, 476 U.S. 79. Defendant argued that he was entitled to a new trial based on the peremptory excusal by the prosecutor of two African-American jurors, Juror No. 1 and Juror No. 12. In People v. Allen (Allen I) (May 25, 2004, A101086 [nonpub. opn.]), we rejected both of defendant’s contentions and affirmed the judgment. Defendant petitioned the United States Supreme Court for writ of certiorari, which the high court granted.
Subsequently, the United States Supreme Court decided Johnson v. California, supra, 545 U.S. 162, which held that California’s rule of combining a presumption that peremptory challenges were properly exercised with a requirement that the person challenging dismissal meet a more-likely-than-not standard contravened Batson’s rule. Accordingly, the high court issued its writ of certiorari to this court, vacating the judgment in Allen I and remanding the case back to this court.
After return of this case from the United States Supreme Court, we issued a second opinion in Allen II. We concluded that the evidence supported a reasonable inference that defendant had made a prima facie case of group bias. We remanded the case to the trial court for the limited purpose of inquiring into the reasons for the prosecutor’s removal of a disproportionate number of African-American jurors from the panel.
Defendant petitioned for review in our Supreme Court, seeking reversal based on too much time having lapsed between the time of jury selection and the future Wheeler/Batson hearing. The Supreme Court granted the petition for review, but later dismissed the matter in light of its decision in People v. Johnson (2006) 38 Cal.4th 1096. The present case was remanded to the trial court for further proceedings directed by this court in Allen II.
The trial court conducted a hearing on March 7, 2007, pursuant to the remand order. The prosecutor stated that he remembered this case “very clearly.” The prosecutor explained: “What I don’t remember, during the jury selection process, is quite a bit of what is in the transcripts regarding both of these jurors; but fortunately, as it relates to [Juror No. 12], I can tell you what I do specifically recall. That is, one, she was married to a pastor; and in the years that I have been a prosecutor, I’ve had so many experiences where people who have strong religious beliefs oftentimes cannot sit in judgment of their fellow man, and they will say that very clearly.
“Now, I don’t remember what she answered on her questionnaire . . . , because those have been destroyed, but I do remember that [Juror No. 12] was married to a pastor. That, in and of itself, on any trial I’ve ever done would cause me great concern and would probably cause me to challenge that juror. I don’t recall what her comments were beyond that, but that, in and of itself, is enough.”
Later during the hearing, the prosecutor made the following remarks about Juror No. 12: “I don’t think I said that [Juror No. 12] had expressed strong religious beliefs. I just indicated that I remember her being married to a pastor, and I said I don’t recall what her answers were to 13 and 14, which [are] questions for strong religious beliefs or her ability to basically render a judgment.”
With regard to Juror No. 12’s feelings about alcohol, the prosecutor explained: “The other portion of her voir dire that I do physically remember—or actually remember is when [defense counsel] was asking questions about the [jurors’] ability to be fair and impartial if they were to learn that [defendant] had consumed a large amount of alcohol on the night of this offense, and would they be able to be fair and impartial towards people who used alcohol. She did raise her hand. I remember she physically raised her hand, and she said, I just don’t like the taste, and that stuck in my mind because it was really not apropos what his question was.
“His question was: Are you going to hold it against my client for drinking alcohol and will you be able to be fair and impartial for someone who basically commits a crime while they’re under the influence of alcohol. Her response, I just don’t like the taste, was far off the mark as to what it was he was seeking.
“With Dr. Purviance testifying on the issue of specific intent in this trial—or he was going to, and the issue of specific intent involving someone who is now—who was clearly under the influence of alcohol and possibly methamphetamine, she was not the juror for me. So—despite how nice she was, but—and that’s all I can remember about her.”
The prosecutor admitted that he asked Juror No. 12 no questions, but the prosecutor explained that at that time, “an average of ten minutes per lawyer was given for jury selection,” or at most, 15 minutes. He stated that he had about 50 seconds per juror for the jury selection process. He therefore considered Juror No. 12’s answers to defense counsel’s question. Juror No. 12 told defense counsel that she was a pastor’s wife and that she did not like the taste of alcohol. Further, the prosecutor believed that she inappropriately told defense counsel that she was not going to like his client because he drank alcohol.
Defense counsel argued that he did not remember Juror No. 12’s raising her hand or expressing any strong religious beliefs. Counsel asked the court whether it remembered her raising her hand, and the court responded, “I can’t remember that.”
Defense counsel filed a declaration stating that, during the trial, the prosecutor had commented, “he’s got two of ‘em[,]” when referring to defendant’s ex-wife and girlfriend, who were in the courtroom during a pretrial proceeding, and were white. Counsel explained that he interpreted the prosecutor’s comment to be a “racially cognizant comment,” and that he believed it showed that the prosecutor “had that mind-set prior to the calling of the jury.” Defense counsel stated that the prosecutor meant that defendant, who is African-American, had “two white women or two white girls.”
The prosecutor also discussed his reasons for excusing Juror No. 1. The prosecutor recalled that this juror “basically sat there and told [defense counsel] he wasn’t going to be fair and impartial towards [defendant] because he—if he heard he had been drinking.” The prosecutor believed that this juror could be a “loose cannon.”
The transcript of the voir dire indicates that Juror No. 1 raised his hand to indicate that he did not drink alcohol. When asked whether he could set aside his personal beliefs and follow the law with regard to an instruction regarding alcohol and how it relates to a criminal offense, Juror No. 1 answered, “No.” When asked whether he could not put these feelings aside, he responded, “Right.”
The trial court announced its ruling at the hearing on March 20, 2007. The court found that the prosecutor’s “reasons for removing the minority jurors [were] not based upon a racial group bias.” The court stated that the prosecutor explained his reasons, and that it found those reasons to be credible. The court elaborated: “I would note that the prosecutor passed the challenge twice before removing Juror Number 1; and the panel sworn, as to the jury, did contain a member of the particular group, an African-American, that we’re concerned of here, and the prosecutor had a number of challenges left that he chose not to use.” Since the court found the peremptory excusals of Juror No. 1 and Juror No. 12 were not based on any racial bias, the court denied defendant’s motion for a new trial.
Defendant filed a timely notice of appeal.
DISCUSSION
The prosecutor used six peremptory challenges, two against African-American jurors. On this appeal, defendant limits his objection to the prosecutor’s peremptory excusal of Juror No. 12, an African-American juror. It has long been recognized in California that “the unconstitutional exclusion of even a single juror on improper grounds or racial or group bias requires the commencement of jury selection anew, or reversal of the judgment where such error is established on appeal.” (People v. Reynoso (2003) 31 Cal.4th 903, 927, fn. 8.)
One African-American remained on the jury.
With regard to Juror No. 1, defendant states the following in his opening brief in this court: “[T]he prosecutor’s explanation for striking Juror [No.] 1 from the panel fails to survive scrutiny any better than his explanation for striking Juror [No.] 12. However, as the reasons given for striking Juror [No.] 12 are specific, and subject to rational examination, this brief will focus on Juror [No. 12], as opposed to Juror [No.] 1, as the explanation for striking Juror [No.] 1 is so vague as to defy logical analysis.” These conclusory statements by defendant are not argument. Since defendant fails to set forth any argument regarding the peremptory exclusion of Juror No. 1, he has abandoned any challenge to the striking of this juror.
I. The Standards and Procedures for Wheeler/Batson Challenges
“The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her.” (People v. Jackson (1992) 10 Cal.App.4th 13, 17-18.) Peremptory challenges may properly be used to remove jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, “ ‘[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]’ [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)
The standards a trial court uses when a defendant challenges the prosecutor’s peremptory strike are as follows: “ ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ ” (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California, supra, 545 U.S. at p. 168.)
At step three of the Batson/Wheeler analysis, the trial court must decide whether the opponent of the peremptory strike has proved purposeful racial discrimination by a preponderance of the evidence. (Purkett v. Elem (1995) 514 U.S. 765, 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) At this point, the persuasiveness of the proffered justification becomes relevant (Johnson v. California, supra, 545 U.S. at p. 171), and an implausible or fantastic justification will often be found to be pretext for purposeful discrimination. (Purkett v. Elem, at p. 768.) “In [this] process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutor’s exercise of the particular peremptory challenge.” (People v. Fuentes (1991) 54 Cal.3d 707, 720.)
However, a prosecutor is presumed to use his or her peremptory challenges in a constitutional manner (People v. Alvarez (1996) 14 Cal.4th 155, 193; Wheeler, supra, 22 Cal.3d at p. 278), and the justification proffered for the particular excusal “need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice. [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 136.) The trial court must then satisfy itself that the explanation is genuine. (People v. Hall (1983) 35 Cal.3d 161, 168.) “What is required are reasonably specific and neutral explanations that are related to the particular case being tried.” (People v. Johnson (1989) 47 Cal.3d 1194, 1218.) “When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 104-105.) Deference does not, of course, “imply abandonment or abdication of judicial review.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.) “[R]ace-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance.” (Snyder v. Louisiana (2008) ____ U.S. ____ [128 S.Ct. 1203, 1208, 1210-1212] [reversed and held that prosecutor’s proffered reasons for striking an African-American prospective juror were “unconvincing[,]” “highly speculative[,]” “suspicious[,]” “implausib[le]” and “pretextual”].)
II. Holding a Wheeler/Batson Hearing Years After Jury Selection
In the present case, the juror voir dire was held in August 2002. The Wheeler/Batson hearing was held more than four and one-half years later in March 2007. Our Supreme Court in People v. Johnson, supra, 38 Cal.4th at page 1101, explained that remanding a case to the trial court to hold a Wheeler/Batson hearing years after jury selection has occurred is a circumstance that is “a concern[.]” However, in Johnson, the “parties [had] the jury questionnaires and a verbatim transcript of the jury selection proceeding to help refresh their recollection[, and] the prosecutor may have [had] notes he took during the jury selection process.” (Id. at p. 1102.) Given that the trial court in Johnson had the trial record, including the jury questionnaires, to assist in conducting the hearing, the Supreme Court held that a remand was appropriate. (Id. at p. 1102.)
In the present case, the trial court did not have the jury questionnaire, which seriously impeded its ability to evaluate the prosecutor’s proffered reasons for peremptorily striking Juror No. 12. Additionally, we note that the prosecutor did not have his notes that he took during the jury selection process. Thus, the inadequate record below creates a circumstance that arouses great concern about the lower court’s ability to evaluate the prosecutor’s proffered reasons. Further, we note that this is not a case where “deference is especially appropriate” because this is not a situation “where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike” (Snyder v. Louisiana, supra, ____ U.S. at p. ____ [128 S.Ct. at p. 1209]).
III. Applying Wheeler/Batson to the Facts of the Present Case
We held in Allen II that, under the holding of Johnson v. California, supra, 545 U.S. 162, defendant had made out a prima facie case that the peremptory striking of Juror No. 12 was based on the juror’s being African-American. We therefore remanded for a hearing on the second and third steps of a Wheeler/Batson analysis of the prosecutor’s peremptory challenge to Juror No. 12 (and Juror No. 1). The trial court concluded that the State offered a race-neutral explanation for peremptorily excusing Juror No. 12 (and Juror No. 1), and found that defendant did not prove purposeful racial discrimination.
At the hearing on March 7, 2007, the prosecutor stated that he peremptorily struck Juror No. 12 because she was married to a pastor and because she raised her hand when defense counsel was asking questions about the jurors’ ability to be fair and impartial if they were to learn that defendant had consumed a large amount of alcohol on the night of the offense. Defendant argues that the prosecutor’s statement that he excused Juror No. 12 because she was married to a pastor was “simply not credible given the express written statement to the contrary contained in Juror [No.] 12’s juror questionnaire and the utter lack of any voir dire questioning directed to Juror [No.] 12 on that subject.”
The record of the hearing on March 7, 2007, establishes that the prosecutor stated that he recalled that Juror No. 12 was married to a pastor, and that his experience “with people who have strong religious beliefs” is that they “oftentimes cannot sit in judgment of their fellow man, and they will say that very clearly.” (Italics added.) The problem is that, here, the questionnaire, which was not before the trial court at the Wheeler/Batson hearing, contradicts this latter assertion. Defendant obtained the voir dire juror questionnaire completed by Juror No. 12 from our record on appeal in Allen I and Allen II. Juror No. 12 responded, “No,” to the following questions: “Do you have moral or religious principles which would make it difficult or impossible to judge whether someone is guilty or not guilty of a crime?” “Do you have any opinions or feelings which make it difficult or impossible to judge whether someone is guilty or not guilty of a crime?”
Defendant requested, and we granted, judicial notice of the record in Allen I and Allen II, A101086.
In the present case, the prosecutor stated that religious people often will state clearly that their beliefs prevent them from sitting in judgment of others, but there is no evidence that Juror No. 12 had strong beliefs, only that her husband was a pastor. Further, the prosecutor acknowledged that he could not remember Juror No. 12’s answers to her questionnaire, but that her being married to a pastor “would cause [him] great concern and would probably cause [him] to challenge that juror.” It may be that the prosecutor would have challenged Juror No. 12 simply because she was married to a pastor, but he stated that his reason for excusing people with strong religious beliefs was because they will often state “very clearly” that they cannot sit in judgment of others. Here, Juror No. 12 stated that her beliefs would not make it difficult for her to judge someone guilty of a crime. Thus, on this particular record, the prosecutor’s explanation is not plausible. (See, e.g., Purkett v. Elem, supra, 514 U.S. at p. 768.)
The People argue that we cannot consider the questionnaire because it was not before the trial court when it conducted its hearing on March 7, 2007. Further, the People argue that defendant “affirmatively represented to the trial court that the juror questionnaires had been destroyed and requested that the trial court take judicial notice of that fact.” The People therefore maintain that “[h]e cannot now offer a document that was not before the trial court that made credibility determinations in an attempt to impeach the prosecutor’s explanation for challenging Juror No. 12.”
Defendant did argue below that the trial court could not reasonably conduct a hearing envisioned by the Supreme Court in People v. Johnson, supra, 38 Cal.4th at page 1102, because the trial court did not have the jury questionnaires; he asked the court to take judicial notice of its own destruction order. Defendant’s argument below does not bar him from now requesting us to take judicial notice of the jury questionnaire that was in our appellate record for Allen I and Allen II. Although this court does not automatically send the entire appellate record back when remanding a case, it will do so if either party or the court requests the record on appeal. The prosecutor had the burden of coming forward with a race-neutral explanation for the strike. (People v. Avila, supra, 38 Cal.4th at p. 541.) Thus, the prosecutor could have requested the entire appellate record to help refresh his memory as to what had happened during the jury selection.
Further, we review the trial court’s ruling to ensure that it made “a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror[.]” (People v. Jurado, supra, 38 Cal.4th at pp. 104-105.) Here, the trial court did not request the entire appellate record; it therefore did not have the jurors’ questionnaires and could not properly evaluate the prosecutor’s explanation.
Finally, the question before us is whether the prosecutor offered a race-neutral explanation. Here, the prosecutor stated that his experience was that religious people often cannot stand in judgment of people and they “will say that very clearly.” Courts have permitted such challenges when the person has stated that his or her religious beliefs will interfere with the deliberating process. (See, e.g., People v. Allen (1989) 212 Cal.App.3d 306, 315-316 [no Wheeler violation when prosecutor challenged a juror who identified herself as a pastor of a church and said that her religious views might interfere with her deliberations as a juror].) In the present case, however, nothing in this record establishes that Juror No. 12 was very religious. Admittedly, the prosecutor’s comments were somewhat ambiguous, but the record does indicate that Juror No. 12 stated that her religious beliefs would not interfere with her ability to deliberate. Accordingly, we conclude that the prosecutor’s explanation for peremptorily striking Juror No. 12 on the basis that she was married to a pastor and that his experience indicated religious people have difficulty judging others is not a plausible reason on this particular record.
Defendant also argues that striking Juror No. 12 simply because she is married to a pastor violates the law. He contends that this exclusion was based on her being involved with a Christian church and that is not a permissible basis for striking a juror. (See, e.g., McDaniel v. Paty (1978) 435 U.S. 618, 620; People v. Avila, supra, 38 Cal.4th at p. 541.) We reject this contention. Nothing in this record suggests that the prosecutor was striking Juror No. 12 on the basis of her particular religion. Indeed, we do not know with what religion this juror was affiliated. The prosecutor stated that he believed that someone married to a pastor may have strong religious beliefs and such beliefs may result in their inability to “sit in judgment of their fellow man . . . .” Courts have consistently held that peremptory challenges to prospective jurors who state they are affiliated with a religion and that their religious views might impact their ability to judge the case do not violate Wheeler. (See People v. Martin (1998) 64 Cal.App.4th 378, 385 [Wheeler does not preclude a peremptory challenge to a juror on the basis of the juror’s relevant personal values “even though those views may be founded in the juror’s religious beliefs”]; see also U.S. v. DeJesus (3d Cir. 2003) 347 F.3d 500 [noting distinction between peremptory challenges based on religious affiliation, which might be improper, and ones based on religious beliefs, which may be proper].)
The other explanation provided by the prosecution was Juror No. 12’s position on alcohol. Alcohol was an issue at trial since the evidence established that defendant had been drinking prior to committing the crime. The prosecutor stated that he remembered the following regarding Juror No. 12: “[W]hen [defense counsel] was asking questions about the [jurors’] ability to be fair and impartial if they were to learn that [defendant] had consumed a large amount of alcohol on the night of this offense, and would they be able to be fair and impartial towards people who used alcohol. She did raise her hand. I remember she physically raised her hand, and she said, I just don’t like the taste, and that stuck in my mind because it was really not apropos what his question was.”
Defendant attacks the prosecutor’s reason by asserting that his explanation is based on an incorrect belief that Juror No. 12 raised her hand in response to defense counsel’s inquiry about a juror’s inability to be fair in an alcohol-related case. The reporter’s transcript of the voir dire reveals the following: Defense counsel asked: “Is there anybody here who doesn’t drink alcohol?” Four people raised their hands. Defense counsel then asked if there was anything about alcohol that would make the person think that he or she would not be able to be fair to defendant, the transcript indicates that no one raised his or her hand. Subsequently, defense counsel asked four jurors, presumably the ones who had raised their hands to the initial question about not drinking alcohol, additional questions about their feelings about alcohol and following the law. Both Juror No. 12 and Juror No. 1 were asked the follow-up questions.
Our opinions in Allen I and Allen II also incorrectly stated the following: “Juror No. 12 was also among four jurors who raised their hands when defense counsel asked if there was ‘anything about alcohol, if it comes out in the trial, that you think that you will not be able to be fair to [defendant].’ ” (Allen II, supra, p. 13, fn. 3.) Defendant states that he filed a motion for rehearing after both Allen I and Allen II, where he objected to this inaccurate factual statement. In both instances, we denied his petitions for rehearing.
The record indicates that Juror No. 12 raised her hand when asked who does not drink alcohol. Subsequently, defense counsel asked her whether she could set aside her personal feelings about alcohol and still follow the judge’s instructions, and Juror No. 12 responded: “Yes. I just don’t like the taste.” She responded, “No,” when asked whether she had anything against people who drink alcohol. She responded, “Yes,” when questioned whether she could follow the judge’s instructions.
The prosecutor partially based his reasons for peremptorily striking Juror No. 12 on his incorrect belief that she raised her hand when asked whether she could be fair; he inaccurately recalled that she responded that she could not be fair because she did not like the taste of alcohol. When discussing Juror No. 12 and her response to the questions about alcohol, the prosecutor stressed: “I remember she physically raised her hand, and she said, I just don’t like the taste, and that stuck in my mind because it was really not apropos what his question was. [¶] His question was: Are you going to hold it against my client for drinking alcohol and will you be able to be fair and impartial for someone who basically commits a crime while they’re under the influence of alcohol. Her response, I just don’t like the taste, was far off the mark as to what it was he was seeking.”
Juror No. 12, however, did not respond inappropriately. Her comment that she did not like the taste of alcohol was in response to the question whether she could set aside her personal feelings about alcohol and follow the judge’s instructions. Her explanation that she simply did not like the taste of alcohol indicated that she did not have personal feelings about alcohol, but did not imbibe because of her dislike of the taste. She then confirmed that her dislike of alcohol would not affect her ability to follow the judge’s instructions or affect her attitude towards people who drink alcohol.
The People acknowledge that the prosecutor incorrectly believed that Juror No. 12 indicated that her dislike of alcohol would affect her ability to be fair, but argues that the prosecutor could properly strike her simply on the basis that she did not drink since the case involved an intoxicated defendant. Simply not being a drinker, however, was not the explanation provided by the prosecutor. “A [Wheeler/Batson] challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or [appellate counsel], can imagine a reason that might not have been shown up as false.” (Miller-El v. Dretke (2005) 545 U.S. 231, 252.)
Further, the record does not support an explanation that the prosecutor peremptorily excused Juror No. 12 simply because she did not drink alcohol. The record indicates that four prospective jurors raised their hands in response to defense counsel’s question about who does not drink. Defense counsel then voir dired four prospective jurors, including Juror No. 12 and Juror No. 1, who were both African-American and peremptorily challenged by the prosecutor. There is no evidence that the other two prospective jurors who also raised their hands to indicate they did not drink and were further questioned did not serve on the jury. Indeed, the record seems to establish that they did serve on the jury. When the prosecutor accepts white jurors who appear to have the same issue as the proffered justification for striking the African-American juror, the proffered explanation is suspicious and gives rise to an inference of discriminatory intent. (See Snyder v. Louisiana, supra, ____ U.S. at pp. ____ [128 S.Ct. at pp. 1211, 1212]; see also People v. Salcido (Jun. 30, 2008, No. S018814) ___ Cal.4th ___ [2008 WL 2572601, *31].)
“[W]hen the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.” (People v. Silva (2001) 25 Cal.4th 345, 386.) As to Juror No. 12, both of the prosecutor’s stated reasons were factually unsupported by the record. Because the trial court’s ultimate finding is unsupported, we conclude that defendant was denied the right to a fair trial in violation of the equal protection clause of the federal Constitution (Batson, supra, 476 U.S. at pp. 84-89) and was denied his right under the state Constitution to a trial by a jury drawn from a representative cross-section of the community (Wheeler, supra, 22 Cal.3d at pp. 276-277).
We need not consider defendant’s argument that the hearing improperly focused on defense counsel’s declaration that the prosecutor had made a comment regarding defendant’s girlfriend and wife just prior to voir dire.
The trial court in the present case did point out that one African-American did serve on the jury and that the prosecutor still had a number of peremptory challenges left. There appears to have been only three African-Americans who were prospective jurors. The prosecutor used six peremptory challenges, two of which were used to excuse two of the three African-American jurors. The fact that one African-American juror remained on the jury, however, is insufficient in the present case because the prosecutor’s explanations for excusing Juror No. 12 were not valid as they were inconsistent with evidence in the record. The only question is whether we should remand for the trial court to hold another Wheeler/Batson hearing.
“Ordinarily, factors to be considered in determining whether remand is appropriate are the length of time since voir dire, the likelihood that the court and counsel will recall the circumstances of the case, the likelihood that the prosecution will remember the reasons for the peremptory challenges, as well as the ability of the trial judge to recall and assess the manner in which the prosecutor examined the venire and exercised other peremptory challenges.” (People v. Williams (2000) 78 Cal.App.4th 1118, 1125.) Here, the fact that the court accepted the prosecutor’s explanation as credible when the jury questionnaire and transcript of voir dire do not support the prosecutor’s proffered explanation establishes that neither the court nor the prosecutor have a clear recall of voir dire, which occurred in August 2002. Under the circumstances, remand is inappropriate. Accordingly, we reverse the lower court’s denial of defendant’s motion for a new trial.
DISPOSITION
The judgment is reversed.
We concur: Haerle, Acting P.J., Richman, J.
“But in any event, you objected when he excused [Juror Nos. 12 and 1]. For the record, they were both African-Americans, and based upon what I observed during the voir dire, you cannot make out a prima facie case that the District Attorney was systematically excluding people of African-American background.
“I would note, for the record, that . . . Juror [No.] 3 [actually prospective Juror No. 20, evidently seated in the third jury seat], is an African-American, and I’m not quite sure if anybody else is or not. But is there something else you wanted to tell me, [defense counsel], other than you were just making the motion?” [Defense counsel] added only that Juror No. 1 “seemed to be more of a prosecution juror” given “his views on alcohol,” and the court responded: “And so you think that somebody who says basically they are not going to follow the law, even if it is in your opponent’s favor, that we should leave that kind of person on the jury? I mean, that’s why I denied your motion. There is no prima facie case.”
The court nevertheless allowed the prosecutor to “put something on the record” if he chose. The prosecutor declined at first, except to say he thought “the record was clear with [Juror No. 1’s] responses as it relates to his abilities to be fair and impartial,” but then added: “[O]ne thing I should put on the record is I was satisfied with the composition of the jury on two separate occasions prior to me bouncing [Juror No. 1], and had the defense passed, [Juror No. 1] was satisfactory. But after passing twice and receiving a new batch of seven jurors, they were ultimately, in my opinion, much stronger in their responses and their ability to follow the law, and their demeanor just seemed more open to listening strictly to the facts and not being swayed by personal opinions like [Juror No. 1] was. So I then chose to challenge him.”
The court asked defense counsel what he had thought at the time the prosecutor meant by the above comments; defense counsel said he thought the prosecutor was joking. The court responded that the comment attributed to the prosecutor did not actually make any reference to race, and that was just defense counsel’s interpretation of the comment. Defense counsel replied that the prosecutor referred to two of them and he had observed both women were white.
The prosecutor claimed that he did not remember making the comment that defense counsel attributed to him. He said that, if he did make such a comment, that “it certainly would not have been a race-based comment . . . .” The prosecutor recalled defendant’s wife as being very attractive and admitted that he probably complained to defense counsel that defendant “had two beautiful women in the court supporting him, and that may very well have been an off-the-record comment” that he made. He repeated that he had no recollection of saying that, but that he would not have made a race-based comment as he was, “at the time of this trial, one-half of a mixed race marriage.” Further, the prosecutor stated that “it defies logic to think that [if] that comment [had been] made, [defense counsel would] not immediately notify this court of the comment being made, or even going so far as to notify the State Bar or doing something to notify somebody . . . .” The prosecutor commented that defense counsel never raised this issue in his first or second Wheeler motion, and waited four and one-half years, one day before the hearing, to bring forward this assertion to the court.