1

Filed 5/5/23 P. v. White CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

DOUGLASS WHITE,

Defendant and Appellant.

 A163356

 (Contra Costa County

 Super. Ct. No. 42009660)

Douglass White appeals after a jury convicted him of 

several crimes involving his assaults on his fiancée. White 

asserts: (1) the prosecutor’s peremptory challenge of an African 

American prospective juror violated Batson v. Kentucky (1986) 

476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 

(Wheeler); (2) the prosecutor committed misconduct in her closing 

argument; and (3) the trial court erroneously admitted and 

excluded certain evidence. We affirm. 

BACKGROUND

A.

White and Jane Doe had been engaged for about two years 

when, in early 2020, they decided to take “a break.” Doe testified 

that White moved out of her Antioch apartment at that time. 

About six months later, in June 2020, White showed up at 

Doe’s apartment, let himself in (through the unlocked front door), 
2

and said he wanted to talk about their relationship. Doe 

repeatedly asked him to leave. White refused and became angry. 

Doe ran out the door to the stairs, yelling “ ‘[l]eave me alone,’ ” 

but White caught up to her. White grabbed her (from behind) 

with two hands around her neck, spun her around, and then 

choked Doe, while also moving her body left to right. As she 

gasped for air, she heard someone yelling “ ‘[s]top, stop.’ ” 

Eventually White let go. 

One of Doe’s neighbors corroborated her account. 

Specifically, the neighbor said she saw a tall, large African 

American man strangling Doe, who was also being “moved 

around like a rag doll.” After the neighbor yelled, “ ‘[s]top it,’ ” 

the man eventually let go and the neighbor called the police. 

Doe testified that, as a result of being choked, she had 

trouble talking. However, when police arrived that night, she 

said she was fine and declined medical assistance. White was 

arrested but Doe declined the police officers’ offer to help her seek 

a restraining order. 

B.

About six months later, in January 2021, White phoned 

Doe and asked her to join him at a candlelight vigil, in Richmond 

later that night. Doe agreed. They stayed at the vigil about an 

hour and then left in Doe’s rental car. She was driving. 

As they drove towards Doe’s apartment, White repeatedly 

asked her if she was romantically involved with anyone. The 

conversation escalated into a verbal argument. Doe testified that 

she asked where she could drop White off, but he would not 

answer. White asked if someone else was staying with her and, 

when they arrived at the parking lot for Doe’s apartment and he 

got out of the car, White yelled that she was not telling him the 

truth. 
3

Doe parked the car and, as she started to get out, White 

snatched the car keys from her and said she would “give him 

answers.” Doe testified that White refused her request to return 

the keys, grabbed Doe by her hair, dragged her around the car, 

and pushed her into the passenger seat. Doe, who weighs 135 

pounds, felt helpless. White weighs over 200 pounds. White then 

got into the driver’s seat and began driving. Doe said she tried to 

escape while the car was still moving slowly, but White pulled 

her back into the car by her hair and her shirt. 

Doe called 911. In the recorded call, which was played for 

the jury, Doe said, “I don’t wanna go. Don’t make me go, I don’t 

wanna go. Stop. Stop. Stop. Stop, the car. Give me my fucking 

keys. Give me my keys. Now. Stop the fucking car. Give me my 

keys.” Doe unintentionally hung up when White tried to grab the 

phone. 

Doe testified that the car ride lasted more than an hour, 

and that, during the ride, White repeatedly questioned her about 

who she was sleeping with and why she would not tell him the 

truth. White also pushed her head against the window glass and 

poked her “strong” twice in her right eye. Doe testified that her 

eye stung, became bruised, and swelled shut. 

Doe made a second call to 911 about 10 minutes after her 

first call. In the recorded call, Doe repeatedly stated that she 

wanted to go home and be left alone. White can also be heard 

repeatedly asking if he was “the only man you been with?” When 

Doe says “You’re bumping in my eye. My eye hurts,” White again 

asks, “[a]m I the only man you with?” Doe also repeatedly told 

the dispatcher, “He’s holding me hostage. [¶] . . . [¶] He’s holding 

me hostage.” White can be heard replying, “Then answer that 

question.” 

After that call ended, the 911 dispatcher called back. In 

the recording played for the jury, Doe states: “He kidnapped me. 

[¶] . . . [¶] No. Leave me alone. [¶] . . . [¶] He won’t leave me 
4

alone. [¶] . . . [¶] Get away from me. Ow.” White then threw her 

phone out the window. 

Doe also testified that White grabbed her around the neck 

multiple times. On one occasion, just before the police found 

them, White choked her until she could not breathe. However, 

she did not report this (or that White pushed her head into the 

window glass) to the police or to the prosecutor when she was 

interviewed a week before trial. 

C.

Antioch Police Department officer Jonathan Downie was 

dispatched to Doe’s apartment shortly after her first 911 call. 

After the third 911 call, Downie received reports of a kidnapping 

in a rental car. Downie then accessed information from a camera 

reading license plates near Doe’s apartment. He discovered that 

a car matching the report passed by the camera around the time 

of Doe’s first call to 911. Downie was able to identify the car as a 

white Nissan, which had been rented by Doe. Downie later 

learned that the same license plate had been seen, by another 

camera reading license plates, near a hotel in Pleasant Hill. 

About one hour and fifteen minutes after the initial 911 

call, Pleasant Hill Police Department officer Tobin Bolter was 

dispatched to a hotel parking lot in Pleasant Hill—where he 

found Doe and White inside a white Nissan. Doe was in the front 

passenger’s seat. She was crying and unable to communicate. 

Her eye was swollen and bruised. 

When Downie arrived about half an hour later, Doe was in 

the back seat of a patrol car. Downie testified that she had a 

black (right) eye, which was also red and swollen. Downie also 

said that, as he talked to Doe, she was crying, scared, and it was 

“hard for her to put information together.” The key to Doe’s 

rental car was found in White’s pocket. 
5

Downie took a recorded statement from Doe that night, 

part of which was played for the jury. Her statement was 

inconsistent with her trial testimony in a few ways: she stated 

that she was “strong-armed” and told to climb from the driver’s 

seat to the passenger seat and also denied having any plan to 

meet White that night. 

D.

The defense called Doe’s next door neighbor, who testified 

that she saw White frequently coming and going from Doe’s 

apartment, both before and after June 2020. She also testified 

that “[White] lived there.” 

One of White’s family members testified that she saw 

White and Doe together at the January 2021 vigil. She observed 

nothing unusual about their behavior or Doe’s eye. 

E.

The jury convicted White of willfully inflicting corporal 

injury on his fiancée (Pen. Code, § 273.5, subd. (a); count one), 1

carjacking (§ 215, subd. (a); count two), kidnapping (§ 207, subd. 

(a); count three), witness intimidation by force (§ 136.1, subds. 

(b), (c)(1); count four), and assault by means likely to cause great 

bodily injury (§ 245, subd. (a)(4); count six). On the fifth count, 

White was acquitted of the charged offense—willfully inflicting 

corporal injury on his fiancée (§ 273.5, subd. (a))—and convicted 

only of a lesser included battery offense (§ 243, subd. (e)(1)). 

White was sentenced to an aggregate prison term of four years 

and eight months. 

1 Undesignated statutory references are to the Penal Code. 
6

DISCUSSION

A.

White maintains the trial court improperly denied his 

Batson/Wheeler motion. We disagree.

1.

Both the state and federal constitutions forbid a prosecutor 

from striking even a single prospective juror on account of race. 

(Foster v. Chatman (2016) 578 U.S. 488, 499; People v. Baker

(2021) 10 Cal.5th 1044, 1071.)

A trial court must analyze a defendant’s Batson/Wheeler

motion using a three-prong test. First, the defendant must make 

out a prima facie case with facts sufficient to support an inference 

of discriminatory purpose. Second, if the defendant succeeds in 

making such a showing, the burden shifts to the prosecutor to 

provide a race-neutral reason for the strike. Third, assuming the 

prosecutor does so, the court evaluates the prosecutor’s proffered 

reasons and determines whether they are legitimate or 

pretextual. (People v. Baker, supra, 10 Cal.5th at p. 1071; accord, 

Johnson v. California (2005) 545 U.S. 162, 168, 170-171.) 

The ultimate burden of persuading the court—that the 

peremptory challenge more likely than not was based on 

purposeful discrimination—rests with, and never shifts from, the 

opponent of the strike. (People v. McDaniel (2021) 12 Cal.5th 97, 

122 (McDaniel); People v. Lenix (2008) 44 Cal.4th 602, 612-613.) 

In 2020, the Legislature passed Assembly Bill Number 

3070, which enacted Code of Civil Procedure section 231.7. 

(Stats. 2020, ch. 318, §§ 1-3.) The statute codifies the 

Batson/Wheeler principle—that peremptory challenges may not 

be made on the basis of a prospective juror’s race. (Code Civ. 

Proc., § 231.7, subd. (a).) Among other changes, the new statute 

makes certain reasons for exercising a peremptory challenge—
7

including having a negative experience with law enforcement—

presumptively invalid. (Id., § 231.7, subds. (e)-(g), (j).) It also 

provides that the objecting party no longer has the burden to 

demonstrate that a peremptory challenge is more likely than not 

improperly motivated. Instead, the court must sustain the 

objection if “there is a substantial likelihood that an objectively 

reasonable person would view race . . . as a factor in the use of 

the peremptory challenge.” (Id., § 231.7, subd. (d)(1).) 

However, the new law only applies to trials in which jury 

selection begins on or after January 1, 2022. (Code Civ. Proc., § 

231.7, subd. (i).) Because jury selection in this case occurred in 

2021, this statute does not lessen White’s burden. 

2. 

Here, jury selection took place over the course of four days. 

There were three African American prospective jurors (two men 

and one woman) in the venire—Juror No. 40, Juror No. 28, and 

Juror No. 55. The prosecutor peremptorily challenged one of the 

African American prospective jurors (Juror No. 40), and Juror 

No. 28 served on the jury. Although Juror No. 55 was questioned 

during voir dire as a potential third or fourth alternate juror, it 

was later decided that only two alternates were needed.

The court’s voir dire of Juror No. 40 indicated he was a 

medical assistant and had dealt with patients who had been 

victims of (or witnessed) domestic violence. However, Juror No. 

40 assured the court that he would be able to leave his medical 

knowledge outside the courtroom and that it would not affect his 

jury service. 

In his juror questionnaire, Juror No. 40 indicated both that 

he held an attitude or opinion about the criminal justice system 

that would make it difficult to be fair and that he knew someone 

who had been a victim, witness, or defendant in a criminal case. 

When asked by the court whether anyone in his family had been 
8

a victim of a crime, Juror No. 40 answered “yes” but indicated 

that he would prefer to discuss it outside the presence of the 

other prospective jurors. However, he also told the court that 

there was nothing about the nature of the charges that would 

make it difficult for him to be fair and impartial. 

When asked to explain in chambers, Juror No. 40 said, 

“About a year ago, my cousin, she had been a victim of domestic 

violence, and I was kind of there for her for the whole entire year 

that she was kind of recovering from it. And she had a broken 

hand and mental instability that she couldn’t really get ahold of. 

She was afraid to go outside. And it’s tough to see a loved one 

like that.” On further questioning from the court, Juror No. 40 

added that his cousin reported the domestic violence to police (in 

San Leandro), that someone was arrested, but that he did not 

believe anyone was prosecuted. Juror No. 40 said that he had no 

feelings about how his cousin was treated by law enforcement or 

the criminal justice system and also that he believed the incident 

would not affect him in this case. 

White’s defense attorney asked Juror No. 40 if, because of 

what happened with his cousin, he felt someone making a 

domestic violence report is probably telling the truth. He 

responded affirmatively, but later added, “it depends on the 

evidence” and that all witnesses start at the same line vis-á-vis 

credibility. 

When asked to describe (again in chambers) the reason for 

his affirmative answer that he had an attitude or opinion about 

the criminal justice system that would make it difficult for him to 

be fair, Juror No. 40 said, “I’ve had family members that have 

been overcharged. I’ve had family members that have been 

assaulted, and I’ve had family members that have been assaulted 

by the police as well too.” In response to further questioning from 

the court, Juror No. 40 said that he “believe[d]” the overcharging 

incident happened in San Francisco and that he would not hold 
9

the experience against the prosecutor in this case. Nor would he 

use it to favor White. Juror No. 40 also indicated that the police 

assaults would not affect him in this case and that he could be 

fair and impartial. 

The prosecutor asked seven questions of Juror No. 40 to 

follow up on the police assault point. In response, Juror No. 40 

stated that he had not been personally assaulted by police officers 

but had witnessed it, in Antioch, “more than maybe five years 

ago.” Juror No. 40 said “[n]o,” when the prosecutor asked him if 

he would hold this experience against any police officers 

testifying in this trial. 

When the prosecutor exercised a peremptory challenge to 

remove Juror No. 40 from the jury, White’s counsel made a 

Batson/Wheeler motion, arguing that there was no evidence that 

Juror No. 40 could not be fair or impartial. 

Defense counsel acknowledged that Juror No. 40 said he 

had seen his family members “overcharged” in San Francisco and 

that Juror No. 40 had witnessed assaults by the police. However, 

defense counsel pointed out that there was no allegation of police 

misconduct or brutality in this case and that Juror No. 40 

believed that he could be fair. 

Defense counsel also pointed out that it was the defense 

that should be concerned about Juror No. 40’s experience with his 

cousin—who was a domestic violence victim. Defense counsel 

also maintained that the prosecutor’s reasons for excusing Juror 

No. 40 (although not yet stated) were improper proxies for his 

race—because African American men are prosecuted at 

disproportionate rates and because African Americans tend to 

live in communities where there is more police violence. Defense 

counsel also emphasized that both White and Jane Doe are 

African American. 
10

Without making an explicit finding as to whether defense 

counsel established a prima facie case, the trial court asked the 

prosecutor if she wished to respond. The prosecutor began by 

noting that she herself was African American and said that she 

“believe[d]” one of the People’s witnesses (specifically officer 

Downie) is African American. 

The prosecutor continued, “[Juror No. 40] . . . stated a 

couple of things that were concerning to me. While I will agree 

that . . . he was very articulate, he spoke in a very professional 

manner, the fact that he believed a family member was 

overcharged in San Francisco County was very concerning to me 

. . . because, based on my knowledge of San Francisco County, . . . 

I don’t believe that a lot of their cases are overcharged. It’s a 

very liberal county. [¶] And here we charge, I think, less liberally. 

And so I think that . . . if he may have seen the charges in this 

case, he may . . . have thought that we have overcharged this 

case. [¶] The fact that he has witnessed assaults by police 

officers, specifically Antioch police officers, and both of the 

investigations [in this case] were conducted by Antioch police 

officers. [¶] . . . [¶] [T]here is nobody else that was on this panel 

that had any other similar circumstances or experiences. That 

was just [Juror No. 40] who had said that. And had there been 

any other people who stated that they had similar experiences, I 

would have asked to excuse them as well. So that is my raceneutral reason for [excusing Juror No. 40].”

In response, defense counsel observed that the prosecutor 

did not follow up with additional questions to Juror No. 40 

regarding what happened (or when) in the purportedly 

overcharged San Francisco case and that the prosecutor merely 

assumed that this occurred “during a particularly liberal regime 

at the DA office.” Defense counsel also insisted that the 

prosecutor did not ask sufficient questions about the police 

assaults—that the prosecutor did not inquire if Juror No. 40 
11

knew the officers’ names or would recognize them. Nor did Juror 

No. 40 indicate he would hold his experience against the Antioch 

Police Department. 

The trial court denied White’s motion, concluding that he 

had presented a prima facie case of discrimination but that the 

prosecutor’s race-neutral reasons for challenging Juror No. 40 

were “credible and persuasive.” Thus, we review only the trial 

court’s third-stage ruling. (See People v. Smith (2018) 4 Cal.5th 

1134, 1147 (Smith); People v. Scott (2015) 61 Cal.4th 363, 387, fn. 

1, 392.)

After the Batson/Wheeler motion was denied, the 

prosecutor notified the court that, although she continued to 

believe one of the investigating officers was African American, 

she had been wrong about Downie’s race. 

3.

White contends that, contrary to the trial court’s finding, 

the prosecutor’s reliance on Juror No. 40’s witnessing of assaults 

by Antioch police was not a valid race-neutral reason to exercise 

a peremptory.2 He insists that similar experiences are so 

common among African American men that the prosecutor’s

reason was actually a proxy for race. As the law stands today, we 

are compelled to disagree. 

At the second step, the opponent of a Batson/Wheeler

motion must provide a “ ‘clear and reasonably specific’ ” 

explanation of their legitimate reasons for exercising the 

peremptory challenge. (Batson, supra, 476 U.S. at p. 98, fn. 20; 

People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez).) In 

evaluating a trial court’s finding that a party has offered a raceneutral basis for challenging a particular prospective juror, we 

2 White concedes that the prosecutor’s first reason for 

exercising the peremptory challenge—Juror No. 40’s belief that 

his relative was overcharged—was race-neutral. 
12

must consider whether discriminatory intent is inherent in the 

prosecutor’s explanation. If it is not, the reason will be deemed 

neutral. (Gutierrez, at p. 1158.) 

At the time of jury selection in this case, the governing law 

was that disproportionate impact on one race or ethnicity is 

insufficient to show that a particular justification fails the race 

neutrality requirement. (Hernandez v. New York (1991) 500 U.S. 

352, 360 [challenge based on bilingual jurors’ expressed hesitation

in accepting official translations was race-neutral even though it 

might result in disproportionate removal of Latino prospective 

jurors]; People v. Avila (2006) 38 Cal.4th 491, 545 [rejecting 

argument that prosecutor’s challenge was not race-neutral when 

it was based on prospective juror’s personal experience that police 

officers lied, “not on a theoretical perception that [the prospective 

juror, as] a member of a minority group, might view the police 

with distrust”]; People v. Silas (2021) 68 Cal.App.5th 1057, 1102-

1103 [noting that Code of Civil Procedure § 231.7 would soon 

make certain reasons presumptively invalid but in the interim 

Avila’s reasoning is binding].) 

The cases on which White relies—to support his assertion 

that the prosecutor’s concern (about Juror No. 40 having 

witnessed assaults by Antioch police) was not race-neutral—are 

distinguishable because they involved assumptions (based on 

stereotype) that a prospective juror would have certain attitudes, 

rather than because the juror’s voir dire responses demonstrated 

the prospective juror in fact held such an opinion. (See People v. 

Douglas (2018) 22 Cal.App.5th 1162, 1171-1172 [bias relied on by 

prosecutor was not neutral because it “was a product of the 

prosecutor’s impermissible group assumptions, unsupported by 

the record and based solely on the two jurors’ sexuality”]; United 

States v. Bishop (9th Cir. 1992) 959 F.2d 820, 825 [prosecutor’s 

reasons “amounted to little more than the assumption that one 

who lives in an area heavily populated by poor black people could 
13

not fairly try a black defendant”], overruled on another ground by 

United States v. Nevils (9th Cir. 2010) 598 F.3d 1158, 1165-1167.) 

Here, in contrast, the record does not suggest the 

prosecutor challenged Juror No. 40 because she made 

assumptions about his experiences and opinions based on his 

race. Rather, the record shows that Juror No. 40’s responses to 

the jury questionnaire and voir dire questions indicated he 

actually had negative experiences with police officers—and, more 

importantly, he had a negative experience with the specific police 

department (Antioch) involved in investigating this case—and 

that he responded affirmatively when asked if he held an opinion 

or attitude about the criminal justice system that would make it 

difficult to be fair. The prosecutor identified these experiences 

and opinions as the reason for her challenge. 

Under the authority that binds us, the fact that many other 

African American men may have had similar negative 

experiences with law enforcement does not invalidate the 

prosecutor’s justification. (See Hernandez v. New York, supra, 

500 U.S. at p. 360; People v. Avila, supra, 38 Cal.4th at p. 545; 

People v. Silas, supra, 68 Cal.App.5th at pp. 1102-1103.)

4.

White also argues that the trial court erred when it found 

the prosecutor’s race-neutral reasons credible. He asserts that 

neither of the prosecutor’s concerns are supported by the record. 

He is wrong.

A finding of discriminatory intent turns largely on the 

court’s evaluation of the prosecutor’s credibility. (See Batson, 

supra, 476 U.S. at 98, fn. 21.) Credibility is measured by, among 

other factors, “the prosecutor’s demeanor; by how reasonable, or 

how improbable, the explanations are; and by whether the 

proffered rationale has some basis in accepted trial strategy.” 

(Miller-El v. Cockrell (2003) 537 U.S. 322, 339; Smith, supra, 4 
14

Cal.5th at p. 1147.) “A prosecutor’s positing of multiple reasons, 

some of which, upon examination, prove implausible or 

unsupported by the facts, can in some circumstances fatally 

impair the prosecutor’s credibility.” (Smith, at pp. 1157–1158.) 

As long as the trial court made a sincere and reasoned 

attempt to evaluate each stated nondiscriminatory reason as 

applied to the challenged juror, we generally defer to the trial 

court’s determination that a prosecutor’s race-neutral reasons for 

striking a juror are credible—and review only for substantial 

evidence. (Smith, supra, 4 Cal.5th at p. 1147; Gutierrez, supra, 2 

Cal.5th at pp. 1158-1159.) “When the prosecutor’s stated reasons 

are both inherently plausible and supported by the record, the 

trial court need not question the prosecutor or make detailed 

findings. But when the prosecutor’s stated reasons are either 

unsupported by the record, inherently implausible, or both, more 

is required of the trial court than a global finding that the 

reasons appear sufficient.” (People v. Silva (2001) 25 Cal.4th 345,

386.) 

We reject White’s assertion that we owe the trial court no 

deference. The record demonstrates that the trial court expressly 

found the prosecutor credible after it engaged in a thorough and 

lengthy evaluation of both of the prosecutor’s reasons for 

challenging Juror No. 40. In evaluating the prosecutor’s 

justifications for the challenge, the court referred to its own voir 

dire observations and confirmed that it noted the same legitimate 

concerns as the prosecutor. The court also disagreed with 

defense counsel’s assertion that the prosecutor asked fewer 

questions of Juror No. 40 than she asked of other jurors. The 

court noted specifically that it was the prosecutor who asked 

Juror No. 40 to identify the city (Antioch) where he witnessed 

police assaults. 

The trial court also said, “I do not recall that there was any 

other juror who had witnessed police violence from [the Antioch 
15

Police Department] or had any adverse experiences with this 

agency. So this juror was unique in that respect.” This reveals 

that the court was testing whether the prosecutor’s justifications 

applied to other jurors who were not challenged. The trial court 

made a sincere and reasoned attempt to evaluate the prosecutor’s 

stated reasons for the challenge. (See McDaniel, supra, 12 

Cal.5th at pp. 122-123.) 

5.

White insists that the prosecutor’s concern about Juror No. 

40’s negative experience with Antioch police officers is 

unsupported by the record because Juror No. 40 stated that he 

could be fair and would not hold his negative experience against 

the prosecution. The record is not nearly as clear cut as White 

suggests. 

In his juror questionnaire and his initial voir dire 

statements, Juror No. 40 indicated to the contrary—that he held 

opinions or attitudes that would make it difficult for him to be 

fair. Juror No. 40’s responses (considered together) may have 

been equivocal enough to avoid disqualification for cause, but a 

prosecutor’s basis for a peremptory challenge does not have to 

support a challenge for cause. (People v. Hardy (2018) 5 Cal.5th 

56, 76; People v. Manibusan (2013) 58 Cal.4th 40, 83.) On a 

mixed record like this one, we cannot conclude that the 

prosecutor’s concern was unsupported or that the trial court 

erred by crediting it. (See Manibusan, at p. 79.) 

White also maintains that the trial court was required to 

scrutinize the prosecutor’s reasons more closely because the 

record does not support either (1) the prosecutor’s claim that 

officer Downie was African American or (2) that the prosecutor 

was correct that Juror No. 40 must have been mistaken about the 

San Francisco District Attorney’s charging policies. 
16

First, we agree with the Attorney General that the 

prosecutor’s misstatement about Downie’s race was not properly 

subject to trial court scrutiny. (See Smith, supra, 4 Cal.5th at p. 

1147 [key question is “whether the trial court properly credited 

the prosecutor’s reasons for challenging the prospective jurors”], 

italics added; Gutierrez, supra, 2 Cal.5th at p. 1159 [“[t]o satisfy 

herself that an explanation is genuine, the presiding judge must 

make ‘a sincere and reasoned attempt’ to evaluate the prosecutor’s 

justification”], italics added.) Neither Downie’s race —nor the 

prosecutor’s race for that matter—were stated as race-neutral 

reasons for challenging Juror No. 40. In referencing these 

matters, the prosecutor was merely trying to demonstrate that 

she had little motive to strike Juror No. 40 because of his race. 

Second, the fact that Downie was not African American was 

not established until well after the trial court denied White’s 

Batson/Wheeler motion. Thus, the trial court had no opportunity 

to consider the discrepancy. We review the trial court’s 

Batson/Wheeler ruling on the record as it stands at the time the 

ruling is made. (People v. Lenix, supra, 44 Cal.4th at p. 624.) If a 

defendant believes subsequent developments should be 

considered, a renewed objection is required to permit appellate 

consideration of these events. (Ibid.)

6.

We also reject White’s argument that the trial court failed 

to adequately scrutinize the record regarding the prosecutor’s 

first reason for striking Juror No. 40—her concern about the 

juror’s comment that a family member had been overcharged in 

San Francisco. 

White insists that there is no substantial evidence to 

support the concern because there is nothing in the record to 

support the prosecutor’s belief about charging policies in San 

Francisco and that “[t]he prosecutor’s reason was based on her 
17

own mistaken belief that [Juror No. 40] was misinformed.” We 

disagree. 

The prosecutor did not say that she was challenging Juror 

No. 40 because he was mistaken about any objective facts 

regarding the San Francisco District Attorney’s charging policies. 

In fact, the prosecutor stated that she challenged him, in part, 

because she was concerned “he believed a family member was 

overcharged in San Francisco County.” 

The prosecutor did add that she was concerned “because, 

based on [her] knowledge of San Francisco County, . . . I don’t 

believe that a lot of their cases are overcharged. It’s a very 

liberal county. [¶] And here we charge, I think, less liberally. 

And so I think that . . . if he may have seen the charges in this 

case, he may . . . have thought that we have overcharged this 

case.” As we read the record, the prosecutor was not concerned 

with an objective factual dispute; the prosecutor was concerned 

about Juror No. 40’s opinion.

And Juror No. 40 identified his family member’s 

overcharging experience as underlying his opinion or attitude 

that might make it difficult to be fair. Our Supreme Court has 

repeatedly made clear that skepticism about the fairness of the 

criminal justice system is a valid race-neutral reason for 

challenging a prospective juror. (Smith, supra, 4 Cal.5th at p. 

1153; People v. Hamilton (2009) 45 Cal.4th 863, 899, 901-902.) 

Thus, it was not particularly relevant who San Francisco’s 

District Attorney was at the time of the purported overcharging. 

The trial court did not err in concluding the prosecutor’s 

concern was supported by the record. 

7.

At the third stage, we also review all the relevant 

circumstances bearing on discrimination. (McDaniel, supra, 12 

Cal.5th at p. 122.) These may include the defendant’s race, the 
18

jury’s ultimate racial composition, the pattern of strikes, the 

prosecutor’s pattern of voir dire questioning, and any 

comparative juror analysis. (Ibid.)

Here, the trial court found the prosecutor’s race-neutral 

reasons credible and that there are no other circumstances that 

suggest the prosecutor’s reasons were pretext for discrimination. 

The prosecutor did not use a disproportionate number of her 

peremptory challenges against African Americans. The 

prosecutor used one of her seven peremptories to challenge an 

African American juror. Contrary to White’s assertion, the 

prosecutor’s voir dire of Juror No. 40 was not striking in any way. 

The fact that another African American juror (Juror No. 28) went 

unchallenged by the prosecutor and remained on the panel may 

also be considered as indicative of a nondiscriminatory intent. 

(See People v. Krebs (2019) 8 Cal.5th 265, 292.) 

We conclude that the trial court made a sincere and 

reasoned effort to evaluate the prosecutor’s race-neutral reasons 

and that substantial evidence supports its denial of the 

Batson/Wheeler motion. 

B.

White also argues that the prosecutor committed 

misconduct, during closing argument, by urging jurors to place 

themselves in Doe’s position. We disagree.

1.

The United States Constitution is violated when a 

prosecutor’s conduct is so egregious that it infects the trial with 

such unfairness as to make the resulting conviction a denial of 

due process. (People v. Flores (2020) 9 Cal.5th 371, 403.) A 

prosecutor’s lesser misconduct will violate state law “ ‘ “if it 

involves the use of deceptive or reprehensible methods to 

persuade the . . . jury.” ’ ” (Ibid.)
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We must decide whether there is a reasonable likelihood, in 

the context of the whole argument and the court’s instructions, 

that the jury understood the prosecutor’s challenged comment in 

an improper manner. (People v. Potts (2019) 6 Cal.5th 1012, 

1036-1037 (Potts).)

2.

In the People’s closing argument, the prosecutor discussed 

the evidence about what occurred in January 2021. In doing so, 

she stated: 

“[Doe is] backing her car into that parking stall as she 

described to you. She turns the car off, gathers her keys and her 

belongings. She’s starting to get out [of] the car and that’s when 

the defendant came up to her, strong-armed her, grabbed her by 

her hair, pulled her around to the front of the car and put her in 

the passenger’s seat. [¶] The best way to assess this evidence is to 

be in the car with them that night.” (Italics added.) Defense 

counsel objected, stating this “[i]nvites the jury to put 

themselves.” The trial court overruled the objection. 

3.

It is improper for a prosecutor to ask the jury to convict 

based on passion or prejudice (People v. Pitts (1990) 223 

Cal.App.3d 606, 694, 696), or to appeal for sympathy to the 

victim’s suffering in determining guilt. (People v. Jackson (2009) 

45 Cal.4th 662, 691.) However, there is no reasonable likelihood, 

in the context of the whole argument and the court’s instructions, 

that the jury construed or applied the challenged remark as any 

such appeal. (Potts, supra, 6 Cal.5th at pp. 1036-1037.)

Here, the prosecutor said only: “The best way to assess this 

evidence is to be in the car with them that night.” The prosecutor 

was asking the jury to focus closely on the evidence, not on the 

victim’s suffering. She proceeded to walk the jury through the 
20

evidence “piece by piece . . . to understand what happened in the 

car that night.” 

In any event, the trial court instructed the jury (before 

closing arguments) that “[n]othing that the attorneys say is 

evidence.” (See CALCRIM No. 104.) The trial court also 

instructed: “You must not let bias, sympathy, prejudice, or public 

opinion influence your assessment of the evidence or your 

decision.” (See CALCRIM No. 101.)

Considering the instructions and argument as a whole, we 

agree with the Attorney General that there is no reasonable 

likelihood the jury understood the prosecutor to be arguing, 

contrary to the court’s instructions, that it could or should convict 

White out of sympathy for Doe. (See Potts, supra, 6 Cal.5th at p. 

1037.) 

C. 

Next, White insists the trial court erred in admitting 

inadmissible lay opinion testimony from officer Downie, as well 

as testimony regarding Downie’s medical expertise. We conclude 

any error was harmless.

The trial court admitted, over defense counsel’s relevance 

and undue prejudice objections, Downie’s testimony that he 

worked as an emergency medical technician (for seven years) 

before becoming a police officer. The trial court concluded that, 

although Downie was not being offered as an expert witness, his 

background and experience were relevant to the accuracy of his 

injury observations. 

Downie later testified that, when he made contact with Doe 

in the Pleasant Hill parking lot, she had a swollen and black eye. 

The prosecutor also asked Downie to describe Doe’s demeanor 

when he spoke to her. Downie responded that Doe was “crying, 

scared” and had a hard time putting information together. 

Defense counsel objected and moved to strike Downie’s 
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testimony—that Doe was “scared” and that it was “hard for her to 

put information together”--on the grounds it lacked foundation 

and was speculation. The trial court overruled the objection. 

We need not decide whether the trial court abused its 

discretion because any error was harmless. Downie’s challenged 

testimony was cumulative, considering that Doe herself testified 

that, when police officers arrived in the Pleasant Hill parking lot, 

she was crying because she was scared. Officer Bolter 

corroborated her account—testifying that, when he arrived 

(before Downie), Doe was crying and unable to communicate. 

Bolter also said that her eye was swollen and bruised. 

Furthermore, photographs of Doe admitted into evidence 

show injury to her eye. Both a video recording from Bolter’s body 

camera and a portion of the recorded statement Downie took from 

Doe were also admitted into evidence. White offers no challenge 

to any of this evidence. 

On this record, the impact of the allegedly improper 

testimony was negligible and it is not reasonably probable the 

jury would have reached a more favorable result absent any 

assumed error. (See People v. Jones (2013) 57 Cal.4th 899, 939-

940; People v. Bradley (2012) 208 Cal.App.4th 64, 84.)

D.

White also maintains that the trial court abused its 

discretion (and violated his federal constitutional right to present 

a defense) by limiting his cross-examination of Downie regarding 

his investigation of where White lived. Any error was harmless.

Doe testified that White moved out in early 2020. During 

cross-examination of Downie, defense counsel asked, “Did you do 

any investigation into whether Mr. White and [Doe] were living 

together?” Defense counsel also asked if Downie found any car 

keys other than the Nissan’s in White’s pocket at the time of his 
22

arrest. The trial court sustained relevance objections to both 

questions. 

Defense counsel later stated that she asked these questions 

to impeach Doe’s credibility and to assess whether Downie did a 

thorough investigation. The court explained that it sustained the 

objections because the questions were not relevant to Doe’s 

credibility or any other material issue. 

Even if we assume the trial court abused its discretion, any 

error was harmless. We consider prejudice under the People v. 

Watson (1956) 46 Cal.2d 818, 836 standard because White fails to 

persuade us that either of the purported evidentiary errors 

violated his constitutional rights. (See People v. Fudge (1994) 7 

Cal.4th 1075, 1102-1103; Depetris v. Kuykendall (9th Cir. 2001) 

239 F.3d 1057, 1062.) 

White presented testimony from Doe’s next door neighbor 

that contradicted Doe’s testimony that White no longer lived with 

her after June 2020. And White’s defense counsel impeached Doe 

in other ways—by highlighting inconsistencies between her trial 

testimony and her earlier statements to police, and through Doe’s 

admission (on cross-examination) that she fraudulently reported 

an accident in an attempt to obtain insurance money. 

Most importantly, even if we assume that the excluded 

evidence would show White was living with Doe in January 2021, 

the probative value of the evidence is limited. It would not 

directly suggest that Doe’s testimony about what happened in the 

car, in January 2021, was untrue. And the case against White 

was overwhelming. It was undisputed that White was with Doe 

on the January 2021 night in question and that Doe was 

uninjured at the vigil. Doe’s testimony regarding what occurred 

in the car was largely corroborated by her 911 calls, the 

photograph and video evidence, and officer Bolter’s testimony 

regarding her demeanor and injuries when she was found in 

Pleasant Hill. 
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Any assumed evidentiary error (considered alone or in 

combination) was harmless. 

DISPOSITION 

The judgment is affirmed.
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______________________

BURNS, J. 

We concur:

____________________________

JACKSON, P.J. 

____________________________

SIMONS, J.

A163356