Opinion
F073665
05-01-2018
THE PEOPLE, Plaintiff and Respondent, v. ELLIS GREY, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1489602)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna F. Reeves, Judge. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Ellis Grey appeals following his convictions on one count of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664) and one count of assault with a firearm (§ 245, subd. (a)(2)). Included in appellant's sentence are enhancements under both counts for use of a firearm (§ 12022.5) and infliction of great bodily injury (§ 12022.7), as well as two enhancements related to prior felony convictions (§ 667.5). In his initial briefing, appellant asserts the prosecution improperly dismissed potential jurors based on their race. In supplemental briefing, appellant contends remand is required so the trial court can consider whether to strike or dismiss the firearm enhancements. For the reasons set forth below, we reverse appellant's convictions and remand for further proceedings.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2015, the People filed an information charging appellant with attempted murder and assault with a firearm, along with several enhancements. The charges arose from an incident where appellant allegedly shot a woman outside of a hair salon in Modesto. Appellant admitted to shooting at the victim, but claimed it was in self-defense. A jury ultimately found appellant not guilty of attempted murder but convicted him of attempted voluntary manslaughter and assault with a firearm. As appellant's primary issue on appeal deals with jury selection, we turn to the facts surrounding that aspect of the trial.
Appellant contests the prosecutor's decision to utilize two of his first three peremptory challenges on the only two African-American potential jurors subject to voir dire. The court called both potential jurors for questioning as part of the initial 18 potential jurors questioned during voir dire. We will refer to the first as Prospective Juror No. 2 and the second as Prospective Juror No. 14.
The court conducted its voir dire proceedings in the standard manner. The clerk first called a group of 18 potential jurors to the jury box. The court then asked the group a series of initial questions regarding potential knowledge of the parties and witnesses, knowledge about the case, prior jury service, contacts with law enforcement, prior experiences relevant to the charges, and other broadly relevant topics. If a juror responded affirmatively to any of these questions, the court asked follow-up questions to that specific person and struck jurors for cause if warranted. The clerk called up replacements as needed and those potential jurors provided answers to the general questions. Neither Prospective Juror No. 2 nor Prospective Juror No. 14 responded affirmatively to any of the initial questions.
Once the court completed the initial questioning, it asked each potential juror to answer "seven personal questions" that were written on a board. These questions asked the potential jurors for information such as their name and occupation, their spouse's name and occupation, their children's names and occupations, and their hometown. The court would then ask follow-up questions based on each potential juror's responses.
Prospective Juror No. 2 responded to these questions as follows. "I'm a caterer. I have no spouse so I guess the fourth one wouldn't apply. And then no children. And I live in Patterson." The court's follow-up questioning proceeded as follows:
"THE COURT: Okay. Is this your first time serving on a jury?
"PROSPECTIVE JUROR NUMBER 2: Yes.
"[Q.]: What about just coming to the courthouse for jury service?
"[A.]: Well, the last time I got summoned I didn't make it this far.
"[Q.]: Welcome. What's the name of your catering business?
"[A.]: [Business].
"[Q.]: And what is your specialty?
"[A.]: Soul food.
"[Q.]: So if anybody needs soul food catering, [business] is available but possibly not this week.
"[A.]: All right.
"[Q.]: Thank you for those answers."
The court moved on through the other prospective jurors until reaching Prospective Juror No. 14. Prospective Juror No. 14 stated he was a student "at MJC" with no "kids or anything." The court followed up with several questions about Prospective Juror No. 14's schooling. Prospective Juror No. 14 responded he was carrying seven units, "[b]ecause I didn't get the rest of my units." When asked about his year in school he stated, "This is my first year—second—going on the second year. So I have been there for a year." The court then asked when Prospective Juror No. 14 graduated from high school, the answer to which was 2012. Prospective Juror No. 14 was also asked what he was studying, responding, "I'm studying business. Trying to get into business management."
Following these individual questions, the court permitted each side's attorney to question the panel. The prosecutor asked individual questions of many of the prospective panel members and some questions to the group as a whole. None of these questions resulted in interactions with Prospective Juror No. 14, but they did create two interactions with Prospective Juror No. 2.
In the first interaction, the prosecutor asked about Prospective Juror No. 2's business:
"[THE PROSECUTOR]: And, [Prospective Juror No. 2], is your catering business full-time?
"PROSPECTIVE JUROR NUMBER 2: No.
"[Q.]: Okay. And so this doesn't cause you any hardship as far as that?
"[A.]: Not at all.
"[Q.]: Great."
In the second interaction, Prospective Juror No. 2 initiated a response by raising her hand. Prospective Juror No. 2 explained she had been thinking about a prior question and shared she had previously been involved in an incident involving self-defense, where she had to use a Taser. The prosecutor asked some follow-up questions and Prospective Juror No. 2 affirmed that this experience would not affect her ability to be fair in this case.
Appellant's counsel also asked additional questions of the prospective jurors, but none resulted in interactions with Prospective Jurors Nos. 2 or 14. After additional for-cause dismissals and the seating of additional prospective jurors, the court proceeded to peremptory challenges. The prosecutor utilized his first peremptory challenge on a retired legal secretary. Following a peremptory from appellant's counsel, the prosecutor utilized his second peremptory challenge on Prospective Juror No. 14. Appellant's counsel again utilized a challenge, followed by the prosecutor choosing to pass on the panel. Appellant's counsel then dismissed another potential juror. In response, the prosecutor utilized his third peremptory challenge on Prospective Juror No. 2.
At this point, the court sat and began questioning another six potential jurors. This questioning took the court to the end of the day. Prior to recessing for the day, appellant noted to his counsel that "all of the [B]lack people were cut from the jury." In response, counsel raised the issue and the court gave counsel until the next day to determine whether to file a motion.
The next morning, appellant's counsel made a formal Batson/Wheeler motion, "just for the simple fact that the defendant is an African-American man, and the two African-American members of our jury pool that were called into the box for voir dire were struck with peremptory challenges by the district attorney." Recounting the prior day's events, and noting the prosecutor passed on the panel with Prospective Juror No. 2 seated before striking her, the trial court found "that there is a prima facie showing" under Batson/Wheeler. According to the trial court, the facts necessary for the showing arose only after Prospective Juror No. 2 was dismissed. Accordingly, the court asked the prosecutor to provide his reasons for challenging Prospective Juror No. 2 and allowed the prosecutor to make a record if desired with respect to Prospective Juror No. 14.
A Batson/Wheeler motion is named after the two seminal cases underlying the doctrine in California, People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
With respect to Prospective Juror No. 2, the prosecutor explained:
"[T]here were essentially two things here, and these are the things we often look for is, number one, she was unmarried; and, number two, her work appeared to be a hobby. Most of the people who are self-employed who go and talk about how—about what they need to do, they have something to do to do their work.
"While age is no longer something that we can consider, I would note that she seems to be of an age where doing something, whether it's school or work, full-time work, would be appropriate. The people who are—the people who the prosecution generally seeks out as jurors are people who are vested in the community, and two of the strongest signs of that are some type of full-time employment and being married.
"I can't say I have never had a juror that is not—that is not full-time employed and unmarried, but I will have to say it's extremely rare.
"And I believe that the reasons that I struck [Prospective Juror No. 2], and I did think about it carefully because there—I am not certain that there aren't more African-American jurors on the panel, but I can say that I considered it, and this was not out of—certainly not out of any bias. It was because of the—because of the part-time work or the wispy nature of her work and lack of doing anything else that would connect her via either marriage or a full-time work situation or even a substantial part-time work situation. It just did not sound like she was—she was working."
The prosecutor further noted, "that often these things are done based on presentation. Just so that—again, I remember and the record is clear, I thought [Prospective Juror No. 2] presented fine. There wasn't any—there weren't any issues as far as that. This was purely on the unmarried, not working demographic."
The prosecutor then contrasted this decision with that for Prospective Juror No. 14:
"[Prospective Juror No. 14]'s presentation was much different. He was—his answers seemed mumbled to me. I didn't understand a lot of the things he said. He was inconsistent even on what year he was. He was also not connected in anyway that I could see. He said he was going to school but didn't know what year it was.
"[Prospective Juror No. 14] was a person who was never going to survive jury selection under any circumstances. I would never have passed with him on the jury. He did not appear to be—to understand basic things like—like what he was doing in college, or anything. It wasn't clear to me that he was actually going to college. I, frankly, disbelieved him. And his—if he was going to college, he said he was taking seven units and not doing much else. And so I did not—I thought [Prospective Juror No. 14] particularly was not a good juror."
Following these explanations, the court proceeded to consider whether the prosecutor's explanations were sincere. First, the court globally determined that, based on what was said about the prospective jurors, the prosecutor's justification was "not based on a group bias but was sincere in the exercise" of the peremptory challenges. The court then expanded on its reasoning. Beginning with Prospective Juror No. 14, the court stated that the prosecutor's explanation fit with observations that "seemed obvious to the Court." In particular, the court noted Prospective Juror No. 14's odd answers to questions about his schooling. However, with respect to Prospective Juror No. 2, the court only stated the prosecutor's "explanation seems again genuine." The court then continued, "There were some other things about her answers that I thought might be concerning to the prosecution that were not articulated so I won't even go into those. It had to do with her answers regarding possible priorities of self-defense." The court then formally denied appellant's motion.
The court continued with jury selection. Each side ultimately utilized several additional peremptory challenges, including challenges utilized after passing on one or more potential panels. The jury was eventually empaneled, the trial held, and appellant was convicted of the charges noted above. Appellant received a 14-year six-month sentence on the attempted murder charge, which was calculated based on a five-year six-month aggravated sentence for the attempted voluntary manslaughter, a four-year mid-term sentence enhancement under section 12022.5, a three-year sentence enhancement under section 12022.7, and two one-year sentence enhancements for prior convictions under section 667.5. In entering this sentence, the court rejected a request to impose the upper term of 10 years on the section 12022.5 enhancement. Appellant also received a stayed, 11-year sentence on the assault with a firearm claim.
This appeal timely followed.
DISCUSSION
The parties have narrowly argued the issues in this case. The People do not contest the trial court's conclusion that appellant presented a prima facie case under the Batson/Wheeler analysis, which we outline in more detail below. Likewise, appellant does not meaningfully challenge the determination that the prosecutor offered facially race-neutral explanations for striking the two African-American prospective jurors. Rather, appellant focuses on whether the reasons given withstand scrutiny. Accordingly, the parties' dispute centers on whether the trial court proceeded properly in accepting the race-neutral reasons proffered by the prosecutor for each of the two African-American prospective jurors. Our analysis, therefore, focuses on that issue. Standard of Review and Applicable Law
The use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates both the California and United States Constitutions. (See Wheeler, supra, 22 Cal.3d at pp. 276-277 [right to trial by jury drawn from representative cross-section of the community]; Batson, supra, 476 U.S. at p. 89 [right to equal protection]); see also People v. Burgener (2003) 29 Cal.4th 833, 863 (Burgener).) "A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors [have] been excluded on the basis of group or racial identity . . . . Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenges at issue." (People v. Jenkins (2000) 22 Cal.4th 900, 993.) At that point, the trial court must decide whether the opponent of the challenge has proved purposeful discrimination. (People v. McDermott (2002) 28 Cal.4th 946, 971 (McDermott).)
This third part of the Batson/Wheeler analysis "focuses on the subjective genuineness of the reason, not the objective reasonableness." (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez).) It is, in essence, a credibility determination in which "the court may consider, ' "among other factors, the prosecutor's demeanor; . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy." ' " (Ibid.) "To satisfy herself that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges." (Id. at p. 1159.)
In carrying out this obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance where it finds a prosecutor's nondiscriminatory reason for exercising a peremptory challenge is genuine. This is particularly true where the prosecutor bases her nondiscriminatory reason for exercising a peremptory challenge on the prospective juror's demeanor, or similar intangible factors, while in the courtroom. (People v. Reynoso (2003) 31 Cal.4th 903, 919 (Reynoso).) In contrast, " '[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.' " (Gutierrez, supra, 2 Cal.5th at p. 1171.) Ultimately, while the "movant must show it was ' "more likely than not that the challenge was improperly motivated," ' " (id. at p. 1158) "the ultimate responsibility of safeguarding the integrity of jury selection and our justice system rests with courts." (Id. at p. 1175.)
We generally review the trial court's ruling on this issue for substantial evidence and with great restraint. (McDermott, supra, 28 Cal.4th at p. 971.) "We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal." (Burgener, supra, 29 Cal.4th at p. 864.) However, when assessing "the viability of neutral reasons advanced to justify a peremptory challenge by a prosecutor, both a trial court and reviewing court must examine only those reasons actually expressed." (Gutierrez, supra, 2 Cal.5th at p. 1167.) "What courts should not do is substitute their own reasoning for the rationale given by the prosecutor, even if they can imagine a valid reason that would not be shown to be pretextual." (Id. at p. 1159.) Analysis of Prospective Juror No . 14
We begin, as the trial court did, with Prospective Juror No. 14. The prosecutor's stated race-neutral reasons for dismissing Prospective Juror No. 14 centered on his presentation as a potential juror. In particular, the prosecutor highlighted his mumbled and inconsistent responses to questions regarding his station in school. Based on these responses, the prosecutor came to believe Prospective Juror No. 14 did not understand basic things and was likely giving misleading answers, to the point the prosecutor expressly stated he did not believe Prospective Juror No. 14's answers.
In response, the trial court affirmed that it too had noticed these traits, noting the prosecutor's observations seemed obvious to the judge. Like the prosecutor, the trial judge viewed Prospective Juror No. 14's answers regarding his schooling with suspicion and appears to believe they were not wholly accurate.
Reviewing the trial court's reasoning, we find the trial court made a sincere effort to investigate the basis for striking Prospective Juror No. 14, such that deference to the court's decisions is appropriate. One of the prosecutor's stated reasons for striking Prospective Juror No. 14 was his stated disbelief of Prospective Juror No. 14's answers. The conclusion that a prospective juror is lying or mischaracterizing facts concerning basic background questions is a sufficiently self-evident basis for juror partiality that little additional explanation regarding the prosecutor's reasoning is necessary. (See Gutierrez, supra, 2 Cal.5th at p. 1171 ["Some neutral reasons for a challenge are sufficiently self-evident, if honestly held, such that they require little additional explication"].) In response, the trial court relied upon its own observations and experience, including its own questioning on the matter, to confirm that the prosecutor's stated reason was based in facts sufficient to convince the court of the stated reason. The record supports the general concerns the court identified and we recognize the trial court was in the best position to assess whether the prosecutor's interpretation of Prospective Juror No. 14's answers was reasonable under the circumstances. Accordingly, we find no error in denying the Batson/Wheeler motion with respect to Prospective Juror No. 14. Analysis of Prospective Juror No . 2
The analysis regarding Prospective Juror No. 2 is not so straightforward. The prosecutor admitted to striking Prospective Juror No. 2 for one of two reasons, or a combination of them both, that reflected on the juror's investment in the community. Specifically, the prosecutor stated Prospective Juror No. 2 was unmarried and her work appeared to be a hobby. With respect to the work angle, the prosecutor stated at one point that it did not sound like Prospective Juror No. 2 was working at all, while at others he called her work "wispy" and a hobby. He summarized his final decision by stating, "This was purely on the unmarried, not working demographic."
In response, the court made no statements concerning the prosecutor's stated reasoning, other than that the "explanation seems again genuine." Instead, the court specifically noted that Prospective Juror No. 2 had made other statements, not related to the prosecutor's reasoning, that the court thought might be concerning.
While a lack of involvement in the community at large or one's work status may be a valid reason for dismissing a juror, we do not conclude they are such self-evident reasons in this case that no further explanation is necessary. (See People v. Chism (2014) 58 Cal.4th 1266, 1317 ["Therefore, a prosecutor 'can challenge a potential juror whose occupation, in the prosecutor's subjective estimation, would not render him or her the best type of juror to sit on the case for which the jury is being selected' "].) Nor do we see how the prosecutor's stated reasons would result in an inherent prejudice against the prosecution or its case. (See Gutierrez, supra, 2 Cal.5th at p. 1169 [noting it was not evident why being unaware of gang activity would indicate a bias against the prosecutor's gang witness].) However, even if we were willing to reach such a conclusion, the record fails to support any finding by the trial court that Prospective Juror No. 2 was, in fact, a legitimate concern under these considerations. Prospective Juror No. 2's answers to the questions posed to her showed that she owned her own catering business, that her work in that business was not full-time, and that her work would not interfere with her serving on the jury. There was no follow-up as to the nature of her alleged part-time work or her involvement in the community as a whole. In short, the basis for the prosecutor's summation—a lack of involvement in the community based, in part, on not working—lacked factual support in the record. Despite this, the trial court did not follow up on the prosecutor's reasoning and, instead, touched only on matters it knew were irrelevant to the analysis. In this context, we cannot say the trial court's global confirmation of the prosecutor's stated race-neutral reason is entitled to deference.
We note that cases like Chism and Reynoso, supra, 31 Cal.4th at pp. 924-925, are distinguishable because the record here does not support the prosecutor's stated reasoning that Prospective Juror No. 2's work history was a relevant factor. The prosecutor did not regularly inquire of jurors about the full-time nature of their work and offered no explanation in the record why he came to believe Prospective Juror No. 2's work history was of any legitimate concern. At most, the prosecutor stated his belief that certain types of part-time workers were poor jurors, but he failed to tie that concern to the situation at hand.
In our own analysis of the prosecutor's stated reasoning, we do not find facts in the record sufficient to support the trial court's conclusion that the prosecutor's stated reason was sincere. Nothing about Prospective Juror No. 2's answers regarding her employment support a conclusion that she was not working, had a "wispy" nature to her work, was working in anything other than an ordinary but not full-time capacity, or otherwise lacked connection to her community. At best for the prosecutor, the record confirms Prospective Juror No. 2 was unmarried, but nothing in the record supports any assertion that this singular basis was an actual concern for the prosecutor or a valid reason for striking Prospective Juror No. 2. In such circumstances, where the record does not support the trial court's ruling and the court made no effort to seek out why the prosecutor's stated reason was not a pretext for discrimination, we cannot find "the court made a reasoned attempt to determine whether the justification was a credible one." (Gutierrez, supra, 2 Cal.5th at p. 1172.) While the People argue appellant's counsel did not make a substantial argument against the prosecutor's stated reasons, this is not a reason to affirm the trial court. As our Supreme Court explained, "The court, too, has its own obligations under the progeny of Batson and Wheeler. '[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.' " (Id.at p. 1171.)
Appellant further relies on a comparative juror analysis to support his assertion that Batson/Wheeler error existed. The People allege such a comparison is not appropriately made for the first time on appeal. Gutierrez resolves this argument against the People. As the Supreme Court wrote: "What we held in [People v.] Lenix [(2008) 44 Cal.4th 602] is that 'evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons.' [Citation.] We are mindful that comparative analysis is subject to inherent limitations, especially when performed for the first time on appeal. [Citation.] But it was error for the Court of Appeal to categorically conclude that a court should not undertake a comparative analysis for the first time on appeal—regardless of the adequacy of the record." (Gutierrez, supra, 2 Cal.5th at p. 1174.) Thus, while we are mindful of the limitations of such an analysis occurring on appeal, we are obligated to consider juror comparisons in the third stage of a Batson/Wheeler analysis if the record is sufficient to support them.
In this case, the record is sufficient to perform certain limited comparisons, all of which fail to affirmatively support the prosecutor's stated reasoning and additionally fail to rebut our conclusion the record does not demonstrate the prosecutor's stated reasons are sincerely held. In this analysis, we note that appellant made his Batson/Wheeler motion early in the selection process and did not renew it upon completion of the jury selection. Thus, at the time of the court's analysis, only Prospective Jurors Nos. 3, 4, 6, 8 and 9 had already been examined. Regardless, we see nothing in the case law that would limit our analysis to simply those jurors.
With respect to whether being married was a factor considered worthy of exclusion by the prosecution, we note that several eventual jurors, including jurors already examined at the time Prospective Juror No. 2 was excused appeared to be unmarried. These included Jurors Nos. 2 and 4 , who did not mention significant others, and Jurors Nos. 3, 6, 9, and Alternate Juror No. 2 whose answers referred only to a significant other, suggested they were not married, or expressly confirmed they were divorced. The large number of seated jurors that do not share a status as married indicates marital status alone could not support the prosecutor's actions. Similarly, it is notable that at least two seated jurors, Jurors Nos. 2 and 3, also held part-time or likely part-time positions—Juror No. 2 as a concessions worker at the Gallo Center and Juror No. 3 as a part-time student also working at John's Incredible Pizza. Neither of these jurors faced follow-up questioning about the nature of their work. This also suggests that part-time work was not a deciding factor. Finally, as both Jurors Nos. 2 and 3 were also likely unmarried, we see no evidence from juror comparisons that the combination of the two were a meaningful factor for the prosecution. Indeed, the comparisons available generally contradict the prosecutor's statement to the trial court that, "I can't say I have never had a juror that is not—that is not full-time employed and unmarried, but I will have to say it's extremely rare." Far from the suggestion such an event was extremely rare, there were at least two jurors ultimately seated in this trial that met this very test.
Alternate Juror No. 2 worked as a caregiver, which is potentially a part-time position, although it is equally possible it could be a full-time position. If part-time, this would be three seated jurors that were unmarried and working part-time.
Although we are compelled to reverse the trial court's ruling based on the record before us, we also note that nothing in the record affirmatively proves the prosecutor utilized a subjectively biased reasoning when excusing Prospective Juror No. 2. Indeed, the fact the prosecutor passed the panel with Prospective Juror No. 2 seated gives some credence to the claim the prosecutor was acting in a race-neutral fashion. (See Gutierrez, supra, 2 Cal.5th at pp. 1170-1171.) Likewise, we agree with the trial court's observations that some of Prospective Juror No. 2's answers regarding self-defense would likely support the prosecutor if they had been offered as justification. However, because the prosecutor did not raise the self-defense issue it cannot support the otherwise empty record underlying the prosecutor's stated reasons. (Id. at p. 1169.) In light of the record in this case, and because "we can only perform a meaningful review when the record contains evidence of solid value" not because of affirmative proof of bias, we find it is more likely than not that Prospective Juror No. 2 was struck for an improper reason. (Id. at p. 1172.) Thus, we reverse the trial court based on the conclusion this case reaches the "level of risk that courts cannot tolerate in light of the serious harms that racial discrimination in jury selection causes to the defendant, to the excluded juror, and to 'public confidence in the fairness of our system of justice.' " (Id. at pp. 1182-1183 (conc. opn. of Liu, J.).)
"Excluding by peremptory challenge even 'a single juror on the basis of race or ethnicity is an error of constitutional magnitude' " that "requires reversal of [appellant's] resulting convictions." (Gutierrez, supra, 2 Cal.5th at p. 1172.)
As the error requires reversing appellant's conviction, we need not reach the issues regarding sentencing raised in appellant's supplemental briefing. --------
DISPOSITION
The judgment is reversed and the matter remanded for further proceedings consistent with this opinion.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
PEÑA, J.