1

Filed 4/11/17

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BRADY DEE DOUGLAS,

Defendant and Appellant.

C072881

(Super. Ct. No. CRF120516)

APPEAL from a judgment of the Superior Court of Yolo County, Paul K. 

Richardson, Judge. Remanded for further proceedings with directions.

Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillete, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Kari Ricci 

Mueller, Deputy Attorney General, for Plaintiff and Respondent.

 

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of part II of the Discussion. 
2

After defendant Brady Dee Douglas’s former boyfriend, a male prostitute, told 

him Jeffrey B. had shorted him money following a prearranged sexual encounter, 

defendant and codefendant Clifton Sharpe tracked down Jeffrey and demanded the 

unpaid money. During a high speed freeway chase, Jeffrey swerved his car into 

defendant’s vehicle after defendant pointed a gun at him, shooting several times. Jeffrey

was able to escape unharmed. 

A jury convicted defendant of attempted second degree robbery (Pen. Code, 

§§ 21a, 211, 212.5, subd. (c) & 213, subd. (b); unless otherwise set forth, section 

references that follow are to the Penal Code), assault with a semiautomatic firearm 

(§ 245, subd. (b)), shooting at an occupied motor vehicle (§ 246), drawing or exhibiting a 

firearm against a person in a motor vehicle (§ 417.3), and carrying a loaded firearm with 

intent to commit a felony (§ 12023, subd.(a)). The jury found true certain firearm 

enhancements attached to the robbery and assault charges. (§ 12022, subd. (a)(1) and 

12022.5, subd. (a).) It acquitted defendant of pimping (§ 266h, subd. (a)), and found not 

true other alleged firearm enhancements. (§ 12022.53, subds. (b) & (c).) Defendant was 

sentenced to an aggregate term of six years in state prison. 

On appeal, defendant contends the court erred in denying his Wheeler motion after 

the prosecutor peremptorily excused two openly gay prospective jurors. (People v. 

Wheeler (1978) 22 Cal.3d 258 (Wheeler); see also Batson v. Kentucky (1986) 476 U.S. 79 

[90 L.Ed.2d 69] (Batson).) He also argues the court erroneously instructed the jury with 

CALCRIM No. 460, the pattern jury instruction for attempt, which he asserts is 

unconstitutionally vague and impermissibly creates a mandatory presumption concerning 

an accused’s intent. We reject defendant’s instructional error challenge, but find the 

court did not properly evaluate defendant’s Batson/Wheeler motion. We therefore 

remand for further proceedings as discussed below.
3

FACTS AND PROCEEDINGS

A. The Incident

In October 2011, defendant lived in Sacramento with Martin Andrade [defendant’s

former boyfriend] and Sharpe. At the time, Andrade was working as a male escort or 

prostitute. Andrade had arranged for Jeffrey to come to the house, where they engaged in 

sexual activities. Although defendant and Sharpe were home at the time, Jeffrey did not 

see them when he arrived at the house. 

After Jeffrey left, Andrade told defendant that Jeffrey had not paid the amount 

they had agreed upon for his services. Defendant and Sharpe then left the house to find 

Jeffrey. Sharpe was driving and defendant was in the front passenger seat. 

Defendant and Sharpe caught up to Jeffrey’s car a short distance from the house. 

They pulled alongside his car and defendant yelled, “Where’s your money at? Where is 

the money at?” 

Jeffrey drove off and defendant and Sharpe followed. Jeffrey became concerned 

and ran several stoplights to try to get away. He eventually got on the freeway and tried 

to lose defendants. A high speed chase ensued. Defendant threw a water bottle at 

Jeffrey’s car. According to Jeffrey, defendant then pointed a gun at him through the 

passenger window. Jeffrey, fearing for his safety, swerved his vehicle into defendant’s 

car. Sharpe lost control of the car, which started spinning. Defendant shot several times 

at Jeffrey and one bullet hit Jeffrey’s car. Defendant claimed he shot in self-defense only 

after Jeffrey swerved into his car. 

Jeffrey’s car was damaged, but he managed to drive a short distance and then run 

for help. Meanwhile, defendant’s car, which had become disabled on the freeway, was 

hit by two other passing motorists. 

When law enforcement arrived, defendant was untruthful about the events leading 

up to the collision, initially claiming Jeffrey’s car had sideswiped his vehicle for no 
4

reason. He did not inform the officers about shooting at Jeffrey’s car. Police eventually 

recovered a semiautomatic handgun in the spare tire compartment of defendant’s car, and 

two spent casings were found on the freeway shoulder that matched the ammunition in 

the gun. 

B. Trial Proceedings

A March 2012 information jointly charged defendant and Sharpe with attempted 

second degree robbery (§ 21a, 211, 212.5, subd. (c), 213, subd. (b), count 1), assault with 

a semiautomatic firearm (§ 245, subd. (b), count 2), shooting at an occupied motor 

vehicle (§ 246, count 3), exhibiting a firearm at an occupied motor vehicle (§ 417.3, 

count 4), and carrying a loaded firearm with felonious intent (§ 12023, subd. (a), count 

5). Defendant was charged with an additional count of pimping (§ 266h, subd. (a), count 

7), while Sharpe was charged with permitting the discharge of a firearm from a vehicle 

(§ 12034, subd. (b), count 6). 

1. Jury Selection

Jury selection began in May 2013. During voir dire, both the prosecutor and 

defense counsel asked questions about the panel’s feelings or perceptions of 

homosexuality and sexual orientation since defendant and several witnesses were gay. 

No one on the panel responded that they would have a problem deciding the case based 

on the facts and not on the ground of sexual orientation. 

Based on answers given during voir dire, it became known that two men in the 

jury venire were openly gay. In discussing their general biographical information, 

prospective jurors D.J. and S.L., both explained that they lived with their male partners. 

D.J. had a doctorate degree from U.C. Berkeley in molecular biology, and was the 

director of a biodramatic company that specialized in growing microorganisms to prevent 

crop damage. He disclosed that he knew a public defender in Yolo County where the 

case was being tried. She was originally his kickboxing instructor, but they had since 
5

become friends and he said he knew her “fairly well.” He admitted having lunch with her 

the previous day, and also that he had recently attended her baby shower. He estimated 

he saw her about once a week, and disclosed that she visited his home. 

The public defender had discussed her work with D.J., although she did not 

disclose specific details of her cases to him. She had also told him about different 

attorneys in the Public Defender’s office as well as the District Attorney’s office. She 

had never mentioned the prosecutor assigned to try defendant, however. 

D.J.’s public defender friend told him that “she would never go to the dark side,” 

which D.J. explained meant that she would never become a district attorney. Following 

up on this statement, the prosecutor asked whether because he was purportedly from “the 

dark side” that D.J. believed the charges were somehow contrived or that his ability to 

listen to the evidence and apply the law would be affected. D.J. responded that the term 

“dark side” was her term not his, and that he could make a decision based on the facts of 

the case. 

D.J. conceded that he was biased or prejudiced about firearms and that he strongly 

believed the Second Amendment should be revoked. Despite his dislike of guns, D.J. 

said this bias would not prevent him from following the judge’s instructions. In probing 

this topic further, the prosecutor asked whether there were any other biases, besides his 

bias against the Second Amendment, of which they should be aware. D.J. responded: 

“No, I think that’s about it, you know, based on what I know about this case, that would 

be [the] only thing.” A short time later, the prosecutor exercised a peremptory challenge 

excusing D.J. 

Following the questioning of seven other prospective jurors and more peremptory 

challenges from both the prosecution and defense, S.L. was called into the jury box. 

Before inquiring about biographical information, the court asked whether any of the new 

potential jurors, including S.L., had any responses to or concerns about the issues raised 

by any previous questions posed by the court or the attorneys during voir dire. S.L. did 
6

not express any concerns with any prior questions or topics, nor did he offer any reason 

why he could not be impartial if picked for the jury. 

S.L. explained that he had graduated from high school and owned a travel agency. 

He had no prior jury service and said there was “absolutely no reason why [he could not] 

be fair.” 

When it was counsel’s turn to question the new panel members, defendant’s 

counsel asked if there was anything anyone would like to say to respond to one of his 

questions. No one answered, and defendant’s counsel then said he had no more

questions. Sharpe’s counsel also had no questions for the new group of potential jurors. 

The prosecutor asked S.L. whether he could listen to testimony from a witness 

who had visited a male prostitute and judge their credibility fairly. S.L. responded that he 

“definitely” could listen to such testimony without prejudging the witness. S.L. also 

responded “no” when asked by the prosecutor whether he believed that persons engaged 

in illegal activities deserve what they get for engaging in such activities. He said, “yes” 

when asked whether if selected he could share his opinion about the facts of the case, 

work with others in applying those facts to the law, and use his common sense. A short 

time later, the prosecutor peremptorily excused S.L. 

Following S.L.’s excusal, Sharpe’s counsel made a Wheeler motion, arguing the 

prosecutor had systematically used his peremptory challenges to excuse the only two 

openly gay men in the jury venire. Defendant’s counsel joined in the motion. While 

Sharpe’s counsel acknowledged that D.J. had apparently been good friends with the Yolo 

County public defender, he nonetheless argued that he could see no other reason why he 

or S.L. were excused except for them being openly gay men. 

Although the court was not sure whether sexuality was a proper subject for a 

Wheeler motion, he allowed the motion “out of an abundance of caution. . . .” The 

prosecutor then gave his reasons for striking both potential jurors. 
7

According to the prosecutor, he excused D.J. based on his close relationship with 

the Yolo County public defender. He noted that D.J. had recently gone to her baby 

shower and that she had discussed the personality traits of several district attorneys in the 

prosecutor’s office with him. He also cited D.J.’s statement that the public defender 

considered district attorneys as “the dark side,” and stated that he did not believe the 

People could get a “fair shake in the case” from D.J. 

He excused S.L. based on his demeanor. The prosecutor said that when 

defendant’s counsel got up, he observed that S.L. changed his body posture, leaned 

forward, and seemed to be more attentive. In contrast, when he spoke with him, the 

prosecutor perceived that S.L. seemed to be leaning back more and that his answers were 

very short and not descriptive. Neither defendant’s counsel nor Sharpe’s counsel 

contradicted the prosecutor’s description of S.L.’s demeanor. 

After offering the above reasons, the prosecutor then added that in a case like this 

where the victim was “not out of the closet and actually was untruthful with the police 

about the extent of his relationship with a male prostitute,” that he believed an openly gay 

person might hold a biased view of the testimony of such a witness because the witness 

was willing to lie about or not be open regarding his sexuality. Sharpe’s counsel 

responded, “Under that justification, anyone who is openly gay automatically that serves 

as a purpose for the DA to kick them, their logic seems to be backwards.” 

The court denied the Wheeler motion. Citing D.J.’s close personal relationship 

with the public defender, his conversations with her about members of the District 

Attorneys’ office as well as the Public Defender’s office, and the “dark side” comment, 

the court found the prosecutor was amply justified in excusing D.J. for nondiscriminatory 

reasons. The court also accepted the prosecutor’s demeanor-based observations 

regarding S.L., stating: “With regard to [S.L.], the observations of body posturing, his 

answers being short and not descriptive, I don’t find that that would signify a wholesale 

basis on prosecution’s part of excluding those who are openly or even gay.” 
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2. The Verdict

The jury convicted defendant of all counts except the pimping charge. It also 

found true an arming allegation attached to the attempted robbery charge and a firearm 

use allegation attached to the assault with a semiautomatic firearm charge, while finding 

the other alleged firearm enhancements not true. Defendant was sentenced to six years in 

state prison as follows: for the count 2 assault charge, the low term of three years plus 

three years for the attached section 12022.5, subd. (a) firearm enhancement. The court 

sentenced defendant to concurrent terms of 16 months for the count 1 attempted robbery 

charge and the count 5 carrying a loaded firearm with the intent to commit a felony 

charge. The court stayed the sentences on the count 3 shooting at an occupied motor 

vehicle offense, the count 4 drawing or exhibiting a firearm against a person in a motor 

vehicle charge, and the section 12022, subd. (a)(1) firearm enhancement attached to 

count 1. 

DISCUSSION

I

Batson/Wheeler Challenge

Defendant contends the trial court erred in denying his Batson/Wheeler motion 

because, in his view, the prosecutor impermissibly excused two openly gay jurors based 

solely on their sexual orientation thereby denying him his constitutional rights to due 

process, equal protection, and a fair and impartial jury. We note that an objection under 

Wheeler also preserves a Batson claim on appeal. (People v. Lenix (2008) 44 Cal.4th 

602, 610, fn. 5 (Lenix).)

A. General Principles for Evaluating Peremptory Challenges

Both the state and federal Constitutions prohibit using peremptory challenges to 

remove prospective jurors based solely on group bias. (Wheeler, supra, 22 Cal.3d at 
9

p. 272; Batson, supra, 476 U.S. at p. 84.) “It is well settled that ‘[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.’ ” (People v. Hamilton (2009) 45 Cal.4th 863, 898 (Hamilton); Wheeler, 

supra, 22 Cal.3d at p. 272.) “Such a practice also violates the defendant’s right to equal 

protection under the Fourteenth Amendment to the United States Constitution.” 

(Hamilton, at p. 898; Batson, supra, 476 U.S. at p. 88.) 

Although the United States Supreme Court has yet to address whether Batson 

extends to sexual orientation, the Ninth Circuit held in SmithKline Beecham Corp. v. 

Abbott Labs. (9th Cir. 2014) 740 F.3d 471, 484 (SmithKline), that equal protection 

prohibits peremptory strikes based on sexual orientation under Batson. In doing so, the 

court relied heavily on the Supreme Court’s decision in United States v. Windsor (2013) 

--U.S.-- [186 L.Ed.2d 808], which held that the Defense of Marriage Act’s definition of 

marriage as excluding same sex partners violated equal protection and due process. 

Similarly, our colleagues in the Fourth District have found that excluding gay men and 

lesbians on the basis of group bias violates the California Constitution. (People v. Garcia

(2000) 77 Cal.App.4th 1269, 1275, 1280-1281 (Garcia) [noting that lesbians and gay 

men share a history of persecution comparable to that of Blacks and women].) Like 

Garcia and SmithKline, we, too, find that excluding prospective jurors solely on the basis 

of sexual orientation runs afoul of the constitutional principles espoused in 

Batson/Wheeler.

To determine whether a prosecutor impermissibly used peremptory challenges to 

remove prospective jurors based on a group bias such as sexual orientation, courts engage 

in a three-part analysis. (Hamilton, supra, 45 Cal.4th at pp. 899-900.) A defendant must 

first make a prima facie case by demonstrating that the facts give rise to an inference of 
10

discriminatory purpose. (People v. Cornwell (2005) 37 Cal.4th 50, 66 (Cornwell), 

disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 

(Doolin).) If that showing is made, the burden next shifts to the prosecution to explain its 

challenge on the basis of permissible, group-neutral justifications. (Id. at pp. 66-67.) If 

such an explanation is offered, the trial court then must decide whether defendant has 

established purposeful group discrimination. (Id. at p. 67; Johnson v. California (2005) 

545 U.S. 162, 168 [162 L.Ed.2d 129, 138] (Johnson).) 

Because the prosecutor gave reasons for his peremptory challenges, we proceed 

directly to the second and third steps of the Batson/Wheeler analysis and determine 

whether the trial court erred in concluding that the proffered reasons were 

nondiscriminatory. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1106, disapproved 

on other grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) 

“ ‘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.’ ” (Hamilton, supra, 45 Cal.4th at p. 901.) A prosecutor’s 

justification, moreover, need not support a challenge for cause (Batson, supra, 476 U.S. 

at p. 97), and even a trivial reason, a hunch, or an arbitrary exclusion, if genuine and 

neutral, will suffice. (Hamilton, at p. 901.) 

We review a trial court’s determination regarding the sufficiency of a prosecutor’s 

justifications for exercising peremptory challenges with great restraint. (People v. 

Thomas (2011) 51 Cal.4th 449, 474.) The trial court’s determination is a factual one, and 

as 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 when they are supported by substantial evidence. (Hamilton, supra, 45 Cal.4th at 

pp. 900-901; Thomas, at p. 474.) In essence, the issue is whether the trial court finds the 

prosecutor’s explanation to be credible, based on factors such as the reasonableness of the 

explanation, the prosecutor’s demeanor, and the trial court’s own observations of the voir 
11

dire. (Lenix, supra, 44 Cal.4th at p. 613.) With these principles in mind, we turn to the 

specific peremptory challenges under review.

B. The Peremptory Challenges of Prospective Jurors D.J. and S.L.

The prosecutor stated that he challenged D.J. based on his close personal 

relationship with a Yolo County public defender who had discussed other attorneys’ in 

the prosecutor’s office and had referred to his office as the “dark side.” Given these 

facts, the prosecutor believed he could not get a “fair shake” from D.J. The prosecutor 

explained that he excused S.L. based on his short answers to his questions and his 

demeanor towards defense counsel, which the prosecutor perceived as more favorable 

than when he questioned S.L. 

The prosecutor then proffered a third reason, apparently applicable to both D.J. 

and S.L., that as openly gay men, he believed they might be biased against the 

prosecution’s main witness, who had visited a gay male prostitute but lied about it to 

police and who was not otherwise living an openly gay lifestyle. 

The first two reasons given--that D.J. had a close personal relationship with a 

public defender that may have made him less sympathetic to the prosecution and that S.L. 

had an unfavorable demeanor--are clearly permissible because they do not facially invoke 

group bias. (Lenix, supra, 44 Cal.4th at p. 623 [perceived bias against prosecution may 

be legitimate reason to strike potential juror]; see also id. at p. 613 [“A prospective juror 

may be excused based upon facial expressions, gestures, hunches, and even for arbitrary

or idiosyncratic reasons”]; People v. Reynoso (2003) 31 Cal.4th 903, 924-925 

[acknowledging that a prosecutor can lawfully peremptorily excuse prospective juror 

where he “observed the potential juror glare at him, or smile at the defendant or defense 

counsel”].) The third reason--the assumption that openly gay men may harbor a bias or 

hostility towards a witness who was not openly gay--is troubling, however.
12

Defendant argues the proffered reason is outrightly discriminatory against openly 

gay persons, and, thus, it does not constitute a neutral explanation for excusing these two 

jurors. The reason, in his view, is no different from a similar one rejected in Batson: a 

prosecutor cannot assume a prospective juror would be more partial to a defendant of the 

same race. (Batson, supra, 476 U.S. at p. 97 [recognizing that the Equal Protection 

Clause “forbids the States to strike black veniremen on the assumption that they will be 

biased in a particular case simply because the defendant is [B]lack”].)

We are not entirely persuaded, however, that defendant has fully characterized the 

nature of the prosecutor’s challenge. The record, we believe, can also be read to indicate 

a concern not about sexual orientation, but rather a concern about an underlying attitude 

or belief regarding truthfulness. The reason for the challenge, then, is arguably more 

nuanced than defendant contends. 

A challenge based solely on a prospective juror’s membership in a particular 

group is different from a challenge “ ‘which may find its roots in part [in] the juror’s 

attitude about the justice system and about society which may be [group] related.’ ” 

(Hamilton, supra 45 Cal.4th at pp. 901-902.) In Hamilton, for example, the California 

Supreme Court upheld a peremptory challenge where the prosecutor said one of the 

reasons he struck the prospective juror was because he had “ ‘considerable sympathy for 

Black people on trial’ and thought the justice system was unfair to Blacks.” (Hamilton, 

supra, 45 Cal.4th at p. 901.) In finding substantial evidence supported the challenge, the 

court implicitly rejected the defendant’s argument that the reason was not race neutral but 

rather based on race itself. (Id. at pp. 901-902.) The court found the juror’s responses to 

several questions on the juror questionnaire form indicated that the prospective juror 

harbored a skepticism regarding the fair treatment of Blacks within the criminal justice 

system, thus supporting the prosecutor’s concerns, even if tangentially related to race. 

(Id. at p. 902.)
13

Likewise, in People v. Martin (1998) 64 Cal.App.4th 378, 385 (Martin), the court 

found that the peremptory challenge of a juror on the basis of the juror’s relevant 

personal values is not improper even though those views may be founded in the juror’s 

religious beliefs. There, the prosecutor struck a Jehovah’s Witness because, in his 

experience, they had a hard time with criminal trials as “ ‘they couldn’t judge anybody at 

all.’ ” (Id. at p. 381.) Although the prospective juror “did not express actual reservations 

about her ability to deliberate,” the court nevertheless found that “[t]he prosecutor’s 

perception that the juror’s religious views might render her uncomfortable with sitting in 

judgment of a fellow human being was a specific bias related to the individual juror’s 

suitability for jury service” sufficient to support the strike. (Id. at p. 384.)

In Hernandez v. New York (1991) 500 U.S. 352, 372 [114 L.Ed.2d 395, 414]

(Hernandez), the United States Supreme Court affirmed the trial court’s factual finding 

that the prosecutor’s reason for striking two Latino jurors was race-neutral and genuine. 

The prosecutor said he excused the jurors because their demeanor and specific responses 

caused him to doubt their ability to defer to the official translation of the Spanishlanguage testimony anticipated from various trial witnesses. (Id. at pp. 356-357 (plurality 

opinion).) The fact that the prosecutor’s reasoning might disproportionately affect 

prospective Latino jurors did not render the reason nonneutral. (Id. at pp. 361-362.) 

In her concurring opinion, Justice O’Connor observed that the prosecutor’s 

peremptory challenges “may have acted like strikes based on race, but they were not 

based on race. No matter how closely tied or significantly correlated to race the 

explanation for a peremptory strike may be, the strike does not implicate the Equal 

Protection Clause unless is it based on race.” (Hernandez, supra, 500 U.S. at p. 375, 

O’Connor, J., concurring in judgment.) She also noted that Batson “does not require that 

the [prosecutor’s] justification be unrelated to race. Batson requires only that the 

prosecutor’s reason for striking a juror not be the juror’s race.” (Ibid.) 
14

In this case, the prosecutor was clearly concerned about how potential jurors 

would relate to or judge the credibility of someone who had lied about certain aspects of 

his life as had the prosecution’s main witness. He asked whether potential jurors would

automatically disregard the believability of persons who “may be liars, may be cheaters 

on other people in their own lives.” Defense counsel asked similar questions regarding 

lying and the different motivations for lying. The topic of truthfulness appeared 

important to both sides, the prosecutor could have genuinely been concerned with 

potential jurors’ beliefs regarding a witness’s purported truthfulness or, more 

appropriately, lack of truthfulness that was related to the facts presented by this specific 

case. 

The prosecutor, moreover, specifically questioned prospective jurors on whether 

“anybody [had] an automatic reaction where they would vote guilty or not guilty because 

some of the people involved in this case, either witnesses or people who are accused are 

homosexual.” No one responded in the affirmative. One inference from this line of 

questioning is that the prosecutor sought to ferret out any biases for or against gay 

persons, and not that he was trying to oust all gay people from serving on the jury. This 

is especially so since the victim had visited a gay male prostitute, and the defendant was 

the prostitute’s former boyfriend. (Hernandez, supra, 500 U.S. at p. 370 (plurality 

opinion) [recognizing that the Latino ethnicity of the victims and prosecution witnesses 

tended to undercut any motive to exclude Latinos from the jury, a factor the trial court 

could have relied on in finding the prosecutor’s proffered reason was not race-based].) 

The prosecutor also asked whether the venire believed a person might be 

motivated to lie if he was not necessarily open about his sexuality. This question probed 

whether jurors could understand the motivation to lie under such circumstances and thus 

was an attempt to discern whether they would be empathetic to Jeffrey, the prosecution’s 

primary witness. 
15

As far as we can tell from the voir dire transcript, however, the trial court never 

actually considered the prosecutor’s sexual orientation-related ground. Although we 

generally defer to a trial court’s factual findings under Batson/Wheeler (Hamilton, supra, 

45 Cal.4th at pp. 900-901), because the court did not address the reason we do not simply 

presume the court found it neutral and nondiscriminatory. (See e.g., Snyder v. Louisiana 

(2008) 552 U.S. 472, 479 [170 L.Ed.2d 175, 182] (Snyder) [court would not presume trial 

court relied on demeanor-based reason offered by the prosecutor to uphold challenge 

where the record did not show that the trial judge actually made a determination 

concerning the prospective juror’s demeanor]; Thaler v. Haynes (2010) 559 U.S. 43, 48-

49 [175 L.Ed.2d 1003, 1008] (Thaler) [explaining Snyder as follows: “We concluded [in 

Snyder] that the record refuted the explanation that was not based on demeanor and, in 

light of the particular circumstances of the case, we held that the peremptory challenge 

could not be sustained on the demeanor-based ground, which might not have figured in 

the trial judge’s unexplained ruling”].) Given the evidence in the record, and in light of 

the important constitutional rights at stake (Miller-El v. Dretke (2005) 545 U.S. 231, 238

[162 L.Ed.2d 196, 212] [“When the government’s choice of jurors is tainted with [] bias, 

that ‘overt wrong . . . casts doubt over the obligation of the parties, the jury, and indeed 

the court to adhere to the law throughout the trial. . . .’ ”]), we err on the side of 

constitutional caution by finding that the prosecutor’s third reason was sexual orientationbased as defendant argues. 

This conclusion does not end our inquiry, however. Instead, it compels us to 

examine how to evaluate a Batson/Wheeler challenge when a party gives both 

permissible and impermissible reasons for exercising a strike. Although other 

jurisdictions have considered the issue, we are not aware of, and the parties have not 

cited, any published United States Supreme Court or California appellate court case 

deciding the matter. (See e.g., Snyder, supra, 552 U.S. at p. 485 [discussing but not 

deciding whether mixed-motive analysis applies in Batson context]; People v. Schmeck 
16

(2005) 37 Cal.4th 240, 276-277 (Schmeck) [declining to address whether a mixed-motive 

analysis provided the proper analytical framework when a prosecutor relies in part on an 

impermissible class bias because the prosecutor’s reasons were not pretextual], abrogated 

on other grounds by People v. McKinnon (2011) 52 Cal.4th 610, 637-638; People v. Fiu 

(2008) 165 Cal.App.4th 360, 397, fn. 49 [finding defendant’s mixed-motive argument 

moot because the court was not persuaded that any of the three reasons the prosecutor 

proffered were race-based].) 

Defendant urges us to adopt a per se rule of unconstitutionality. He contends that 

when a party offers multiple rationales for a peremptory strike, some of which are 

permissible and one of which is not, the taint from the impermissible reason mandates 

reversal and essentially moots any other neutral reason given. 

Several state jurisdictions have adopted this approach, which is known as the “per 

se” or “tainted” approach. (See e.g., McCormick v. State (Ind. 2004) 803 N.E.2d 1108, 

1112-1113 [collecting cases adopting the tainted approach].) Under the per se approach, 

“a racially discriminatory peremptory challenge in violation of Batson cannot be saved 

because the proponent of the strike puts forth a nondiscriminatory reason.” (State [South 

Carolina] v. Shuler (2001) 344 S.C. 604, 616 [545 S.E.2d 805, 811]; see also State v. 

King (Wis.Ct.App. 1997) 215 Wis.2d 295, 307 [572 N.W.2d 530, 535] [“where the 

challenged party admits reliance on a prohibited discriminatory characteristic . . . a 

response that other factors were also used is [in]sufficient rebuttal under the second prong 

of Batson”].) 

Still other jurisdictions, primarily federal, have adopted a mixed-motive or dual 

motivation analysis from other nonBatson equal protection decisions. (See e.g., Howard 

v. Senkowski (2d Cir. 1993) 986 F.2d 24, 27 (Howard); Gattis v. Snyder (3d Cir. Del. 

2002) 278 F.3d 222, 233; Jones v. Plaster (4th Cir. 1995) 57 F.3d 417, 420-422; United 

States v. Darden (8th Cir. 1995) 70 F.3d 1507, 1530-1532; Wallace v. Morrison (11th 

Cir. 1996) 87 F.3d 1271, 1274-1275.) Under the mixed-motive approach, “[o]nce the 
17

claimant has proven improper motivation, dual motivation analysis is available to the 

person accused of discrimination to avoid liability by showing that the same action would 

have been taken in the absence of the improper motivation that the claimant has proven.” 

(Howard, supra, 986 F.2d at p. 27.) Stated differently, “after the defendant makes a 

prima facie showing of discrimination, the state may raise the affirmative defense that the 

strike would have been exercised on the basis of the []neutral reasons and in the absence 

of the discriminatory motive. If the state makes such a showing, the peremptory 

challenge survives constitutional scrutiny.” (Gattis, supra, 278 F.3d at p. 233.)

The Ninth Circuit has adopted a third approach known as the substantial 

motivating factor approach. (See Cook v. LaMarque (9th Cir. 2010) 593 F.3d 810, 814-

815 (Cook).) Relying on language in the Supreme Court’s decision in Snyder, the Cook 

court expressly declined to adopt the mixed-motive analysis for Batson cases and instead 

limited its inquiry to “whether the prosecutor was ‘motivated in substantial part by 

discriminatory intent.’ ” (Id. at p. 815.) “To determine whether race was a substantial 

motivating factor--that is, whether the defendant has shown ‘purposeful discrimination’ 

at Batson’s third step--the trier of fact must evaluate ‘the persuasiveness of the 

justification[s]’ offered by the prosecutor.” (Ibid.) The test, in essence, is stricter than 

the mixed-motive analysis because it does not permit the prosecutor to establish the 

affirmative defense that he would have challenged the juror even absent the 

discriminatory basis. (See Kesser v. Cambra (9th Cir. Cal. 2006) 465 F.3d 351, 376, 

Berzon, J., concurring opn. [explaining that on a direct appeal she might hold that the 

Batson standard should be more onerous than ordinary equal protection jurisprudence].)

In deciding which of the three approaches should apply here, we are guided by 

United States Supreme Court precedent as well as California case law in other contexts. 

Such cases lead us to conclude that neither the per se approach nor the substantial 

motivating factor approach are appropriate. Instead, we conclude that a court should 
18

utilize the mixed-motive approach to determine the constitutionality of a peremptory 

strike whenever a party gives both neutral and nonneutral reasons for the strike. 

The United States Supreme Court’s decision in Rice v. Collins (2006) 546 U.S. 

333, 336 [163 L.Ed.2d 824, 830] (Rice) convinces us that the per se approach does not 

apply when evaluating such challenges. In that case, the prosecutor gave several raceneutral reasons for striking an African-American juror including that he wanted to obtain 

gender balance on the jury. (Id. at p. 340.) On a habeas petition, the Ninth Circuit found 

the gender justification undermined the prosecutor’s credibility regarding the other raceneutral reasons offered for the strike thus rendering the trial court’s factual finding of no 

pretext unreasonable. (Ibid.) 

After first acknowledging that discrimination in the jury selection process based 

on gender violates the Equal Protection Clause (Rice, supra, 546 U.S. at p. 340, citing 

J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127 [128 L.Ed.2d 89]), the Supreme Court 

nevertheless concluded that the Ninth Circuit had “assigned the gender justification more 

weight than it can bear.” (Rice, at pp. 340-341.) The courted noted that, “[t]he 

prosecutor provided a number of other permissible and plausible race-neutral reasons, 

and [the defendant] provide[d] no argument why this portion of the colloquy 

demonstrates that a reasonable factfinder must conclude the prosecutor lied about the eye 

rolling and struck [the juror] based on her race.” (Id. at p. 341.) Had the per se approach 

applied, the Supreme Court would have found the improper gender justification 

controlling even if the other reasons given were race-neutral. It did not. 

We also reject the approach adopted by the Ninth Circuit in Cook. (Cook, supra, 

593 F.3d at pp. 814-815.) The Ninth Circuit cited Snyder to support its decision to reject 

the mixed-motive analysis (ibid.), characterizing the high court’s opinion as “declining to 

adopt” the mixed-motive approach. (Id. at p. 814.) We do not read Snyder so broadly. 

Rather than rejecting the mixed-motive analysis as Cook implies, Snyder merely 

found that it “need not decide” the issue. (Snyder, supra, 552 U.S. at p. 485 [“In other 
19

circumstances, we have held that, once it is shown that a discriminatory intent was a 

substantial or motivating factor in an action taken by a state actor, the burden shifts to the 

party defending the action to show that this factor was not determinative. [Citation.] We 

have not previously applied this rule in a Batson case, and we need not decide here 

whether that standard governs in this context”].) This was because the court found that 

the reasons proffered by the prosecutor were pretextual and not supported by the record; 

thus, the court had no occasion to consider the governing standard in a dual motivation 

case where the prosecutor offers both permissible and impermissible reasons for a strike. 

(Id. at pp. 484-485; Palmer v. GTE California Inc. (2003) 30 Cal.4th 1265, 1278 

[“ ‘ “Language used in any opinion is of course to be understood in the light of the facts 

and the issue then before the court, and an opinion is not authority for a proposition not 

therein considered” ’ ”].)

Snyder, moreover, recognized that, at a minimum, a party defending a peremptory 

challenge motivated in substantial part by a discriminatory factor must show that the 

factor was not determinative. (Snyder, supra, 552 U.S. at p. 485 [“For present purposes, 

it is enough to recognize that a peremptory strike shown to have been motivated in 

substantial part by discriminatory intent could not be sustained based on any lesser 

showing by the prosecution”].) In light of the circumstances presented in Snyder, 

“including absence of anything in the record showing that the trial judge credited the 

claim that Mr. Brooks was nervous, the prosecution’s description of both of its proffered 

explanations as ‘main concern[s],’ [citation], and the adverse inference [of discriminatory 

intent following the proffer of a pretextual reason] . . . the record [did] not show that the 

prosecution would have pre-emptively challenged Mr. Brooks based on his nervousness 

alone.” (Ibid.) 

The above discussion, we believe, illustrates that the mixed-motive approach can 

be successfully applied in the Batson/Wheeler context even though admittedly there may 

be some difficulty in determining the “subtle question of causation.” (Snyder, supra, 552 
20

U.S. at p. 486; see also Khan v. State (Md. Ct. Spec. App. 2013) 74 A.3d 844, 852, fn. 3 

[discussing practical application problems of determining but for causation for 

peremptory challenges].) 

The mixed-motive approach is also consistent with United States Supreme Court 

equal protection precedent in other nonBatson contexts as well as other California equal 

protection case law. (See e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle (1977) 

429 U.S. 274, 287 [50 L.Ed.2d 471, 483-484] (Mount Healthy) [district court should have 

determined whether the board of education could show by a preponderance of evidence 

that it would have reached the same decision not to rehire a teacher who engaged in 

constitutionally protected speech in the absence of the teacher’s protected conduct]; see 

also Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1977) 429 U.S. 252, 271

[50 L.Ed.2d 450, 468] [plaintiffs failed to carry their burden of showing that a 

discriminatory purpose was a substantial motivating factor in an agency’s decision to 

deny a rezoning application]; Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 211 

(Harris) [former employee not entitled to damages or reinstatement when a jury finds 

that unlawful discrimination was a substantial motivating factor in employee’s 

termination but the employer proves it would have made the same decision absent such 

discrimination; former employee may be entitled to declaratory or injunctive relief to stop 

discriminatory practices].) And Batson itself states that, “[a] recurring question in these 

[jury discrimination] cases, as in any case alleging a violation of the Equal Protection 

Clause, was whether the defendant had met his burden of proving purposeful 

discrimination on the part of the State.” (Batson, supra, 476 U.S. at p. 90; italics added.) 

As Senkowski recognized, Batson thus “plac[ed] the issue squarely within the tradition of 

equal protection jurisprudence.” (Senkowski, supra, 986 F.2d at p. 27.) 

Applying that analysis here, it is not apparent from the transcript whether the trial 

court ever considered the prosecutor’s sexual orientation-based reason let alone 

concluded that it was a motivating but not determinative factor in the decision to strike 
21

D.J. and S.L. To properly resolve the issue, then, we must remand the case for further 

proceedings so the trial court may apply a mixed-motive analysis to the peremptory 

challenges. On remand, the prosecutor shall have the opportunity to show that he would 

have stricken both jurors even without considering their sexual orientation. (See Mount 

Healthy, supra, 429 U.S. at p. 287; Harris, supra, 56 Cal.4th at p. 211].) If the 

prosecutor makes the necessary showing, the challenges stand. If not, the judgment must 

be reversed. (Snyder, supra, 552 U.S. at p. 486 [reversed and remanded after finding 

Batson violation].)

II

Instructional Error

Defendant contends the court erred in instructing the jury on attempted robbery. 

He claims CALCRIM No. 460, the pattern jury instruction defining attempt, included an 

impermissibly vague definition of the crime’s actus reus element and created a mandatory 

presumption of intent thereby lessening the prosecution’s burden of proof. We disagree.

A court has a sua sponte duty to instruct on the general principles of law relevant 

to the issues raised by the evidence in a criminal case. (People v. Breverman (1998) 

19 Cal.4th 142, 154.) That obligation means instructing on all elements of a charged 

offense (People v. Cummings (1993) 4 Cal.4th 1233, 1311), including “the intent 

necessary to commit the offense and the union between that intent and the defendant’s act 

or conduct. [Citations.]” (People v. Alvarado (2005) 125 Cal.App.4th 1179, 1185.) 

A particular instruction “ ‘may not be judged in artificial isolation . . . .’ ” (Estelle 

v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399] (Estelle).) Instead, “[o]n 

review, we examine the jury instructions as a whole, in light of the trial record, to 

determine whether it is reasonably likely the jury understood the challenged instruction in 

a way that undermined the presumption of innocence or tended to relieve the prosecution 

of the burden to prove defendant’s guilt beyond a reasonable doubt. [Citation.]” (People 
22

v. Paysinger (2009) 174 Cal.App.4th 26, 30 (Paysinger).) A party, moreover, “ ‘may not 

complain on appeal that an instruction correct in law and responsive to the evidence was 

too general or incomplete unless the party has requested appropriate clarifying or 

amplifying language.’ ” (People v. Jones (2013) 57 Cal.4th 899, 969.) 

Before considering defendant’s contention, we first address the People’s argument 

that defendant forfeited his instructional challenge by failing to object below. While 

defendant acknowledges the People’s forfeiture argument, he does not address it. 

It is undisputed that defendant did not object to the instruction as given. There is 

also evidence in the record that defense counsel may have even requested the instruction. 

When the court mentioned CALCRIM No. 460, for example, defendant’s counsel stated, 

“We want it . . . ,” and “[i]t’s to be included. . . .” 

“Generally, a party forfeits any challenge to a jury instruction that was correct in 

law and responsive to the evidence if the party fails to object in the trial court.” (People 

v. Franco (2009) 180 Cal.App.4th 713, 719.) Furthermore, when defense counsel 

deliberately requests a particular instruction the invited error doctrine bars an argument 

on appeal that the instruction was erroneous. (People v. Wader (1993) 5 Cal.4th 610, 

657-658 (Wader); People v. Lucero (2000) 23 Cal.4th 692, 723.) 

We may, however, review any instruction given, even though no objection was 

made below, if the substantial rights of the defendant were affected. (§ 1259.) 

“Ascertaining whether claimed instructional error affected the substantial rights of the 

defendant necessarily requires an examination of the merits of the claim--at least to the 

extent of ascertaining whether the asserted error would result in prejudice if error it was.” 

(People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Courts have also recognized 

that a defendant who is barred from raising instructional error by the invited error 

doctrine may still claim he received ineffective assistance of counsel. (Wader, supra, 

5 Cal.4th at pp. 657-658.) To determine whether defendant’s substantial rights were 

affected and to forestall a potential ineffective assistance claim in a subsequent habeas 
23

petition (People v. Salcido (2008) 44 Cal.4th 93, 152 [recognizing ineffective assistance 

claims often more appropriately litigated on habeas corpus]), we turn to defendant’s 

instructional error challenge.

Penal Code section 21a provides that “[a]n attempt to commit a crime consists of 

two elements: a specific intent to commit the crime, and a direct but ineffectual act done 

toward its commission.” (§ 21a.) CALCRIM No. 460 is the pattern jury instruction for 

an attempt. Based on CALCRIM No. 460, the court instructed the jury as follows: “The 

defendants are charged in Count 1 with attempted robbery.

“To prove that the defendant is guilty of this crime, the People must prove that: 

[¶] 1. The defendant took a direct but ineffective step toward committing robbery; and 

[¶] 2. The defendant intended to commit robbery. 

“A direct step requires more than merely planning or preparing to commit robbery 

or obtaining or arranging for something needed to commit robbery. A direct step is one 

that goes beyond planning or preparation and shows that a person is putting his or her 

plan into action. A direct step indicates a definite and unambiguous intent to commit 

robbery. It is a direct movement towards the commission of the crime after preparations 

are made. It is an immediate step that puts the plan in motion so that the plan would have 

been completed if some circumstance outside the plan had not interrupted the attempt. 

“A person who attempts to commit robbery is guilty of attempted robbery even if, 

after taking a direct step towards committing the crime, he or she abandoned further 

efforts to complete the crime or if his or her attempt failed or was interrupted by someone 

or something beyond his or her control. On the other hand, if a person freely and 

voluntarily abandons his or her plans before taking a direct step toward committing the 

robbery, then that person is not guilty of the attempted robbery.

“To decide whether the defendant intended to commit robbery, please refer to the 

separate instructions I’ll give you on that crime.” 
24

The court then instructed the jury with CALCRIM No. 1600, the pattern jury 

instruction for robbery. The court stated in relevant part: “To prove the elements of 

robbery, a violation of Penal Code section 211, the People must prove that: [¶] 1. The 

defendant took property that was not his own; [¶] 2. The property was taken from 

another person’s possession and immediate presence; [¶] 3. The property was taken 

against that person’s will; [¶] 4. The defendant used force or fear to take the property or 

to prevent the person from resisting; and [¶] 5. When the defendant used force or fear to 

take the property, he intended to deprive the owner of it permanently or to remove it from 

the owner’s possession for so extended a period of time that the owner would be deprived 

of a major portion of the value or enjoyment of the property. 

“The defendant’s intent to take the property must have been formed before or 

during the time he used force or fear. If the defendant did not form this required intent 

until after using the force or fear, then he did not commit the robbery. . . .” 

Defendant first argues that CALCRIM No. 460 is impermissibly vague because it 

does not adequately define the actus reus of an attempt. He complains it deprived him of 

due process because the instruction’s definition of “direct step[]” is, in essence, not a 

bright line rule clearly delineating between mere preparation and an overt act towards a 

robbery. According to defendant, the concept of “a direct but ineffective step” is a 

“content-less variable[] on a shifting spectrum of conduct” that allowed the jury to form 

“arbitrary and subjective impressions as to what might constitute non-preparatory but 

ineffectual, direct steps.” 

To support his vagueness argument, defendant cites cases observing that it 

sometimes can be difficult to discern when preparation ends and attempt begins for 

purposes of an attempt crime. (See e.g., People v. Watkins (2012) 55 Cal.4th 999, 1021

[“the act must represent ‘ “some appreciable fragment of the crime” ’ ”; People v. 

Superior Court (Decker) (2007) 41 Cal.4th 1,8 [“As simple as it is to state the 

terminology for the law of attempt, it is not always clear in practice how to apply it. As 
25

other courts have observed, ‘ “[m]uch ink has been spilt in an attempt to arrive at a 

satisfactory standard for telling where preparation ends and attempt begins” ’ ”].) But 

simply because there may be difficulty in determining whether some hypothetical act 

constitutes a direct step towards a robbery does not render the instruction vague. (See 

e.g., People v. Morgan (2007) 42 Cal.4th 593, 606 [statute is not void despite difficulty in 

determining whether some marginal act is covered by its language] (Morgan).)

As the Supreme Court has recognized, “ ‘[t]he law is replete with instances in 

which a person must, at his peril, govern his conduct by such nonmathematical standards 

as “reasonable,” “prudent,” “necessary and proper,” “substantial,” and the like. Indeed, a 

wide spectrum of human activities is regulated by such terms. . . .’ ” (Morgan, supra, 

42 Cal.4th at p. 606.) “ ‘Yet standards of this kind are not impermissively vague, 

provided their meaning can be objectively ascertained by reference to common 

experiences of mankind.’ ” (Ibid.) 

The same reasoning applies to CALCRIM No. 460’s definition of a “direct step,” 

which we conclude is not impermissibly vague. The instruction makes clear that a 

“direct step” is one that “immediate[ly]” puts a prior plan to commit an offense into 

motion. This language is sufficiently definite to allow the jury to decide between 

activities related to formulating or preparing the plan and those “immediately” putting the 

plan, once devised, “into action.” (Morgan, supra, 42 Cal.4th at pp. 606-607 [“in the 

context of our simple kidnapping statute, where the adjective ‘substantial’ modifies the 

noun ‘distance,’ the word ‘substantial’ means a ‘significant amount’ as contrasted with a 

distance that is ‘trivial,’ and that the phrase ‘substantial distance’ meets the constitutional 

requirement of reasonable certainty”]; see also Coolidge v. Standard Acci. Ins. Co. (1931) 

114 Cal.App. 716, 721-722 [interpreting the term “immediately” to mean “promptly 

without unnecessary delay”].)

“[W]e need not address defendant’s perfunctory, undeveloped claim [he] set forth 

in the footnote” in his opening brief concerning unanimity. (People v. Carroll (2014) 
26

222 Cal.App.4th 1406, 1412, fn. 5; see also Evans v. Centerstone Development Co. 

(2005) 134 Cal.App.4th 151, 160 [appellate court may disregard points raised in a 

footnote rather than being property presented under a discrete heading with appropriate

analysis].)

Defendant next complains that the language in CALCRIM No. 460 stating, “[a] 

direct step indicates a definite and unambiguous intent to commit robbery” essentially 

creates a presumption that he possessed the specific intent to commit the robbery. This 

improper presumption, in turn, unconstitutionally relieved the State of the burden to 

prove beyond a reasonable doubt every element of the charged attempted robbery 

offense. 

Defendant cites Carella v. California (1989) 491 U.S. 263, 264 [105 L.Ed.2d 218, 

221] (Carella), where the court improperly instructed the jury with mandatory 

presumptions regarding the intent to commit fraud by theft and embezzlement. In that 

case, the “jury was told first that a person ‘shall be presumed to have embezzled’ a 

vehicle if it is not returned within 5 days of the expiration of the rental agreement; and, 

second, that ‘intent to commit theft by fraud is presumed’ from failure to return rented 

property within 20 days of demand.” (Id. at p. 265.) 

While the “mandatory” instructions in Carella “directly foreclosed independent 

jury consideration of whether the facts proved established certain elements” of the 

charged offenses (Carella, supra, 491 U.S. at p. 266), CALCRIM No. 460, as given here, 

does no such thing. Rather than imposing a mandatory presumption on the jury, 

CALCRIM No. 460 merely provides that a “direct step” towards a robbery “indicates” an 

intent to commit a robbery. The words “presume” and “indicate” are not synonymous.

“The word ‘indicate’ is defined to mean, ‘To point out or to; to direct to a 

knowledge of; . . . to be an index, sign or token of; to betoken,’ and among its synonyms 

are ‘evidence, evince, manifest.’ ” (People v. Smith (1939) 36 Cal.App.2d Supp. 748, 

751, citing Webster’s New International Dict. (2d Ed. 1938).) The word “presume,” by 
27

contrast, means “to assume as true in the absence of proof to the contrary.” (Random 

House Webster’s College Dictionary (2d Ed. 1997) p. 1031.)

The language in CALCRIM No. 460 defining what constitutes a “direct step,”

moreover, cannot be read in isolation. We must view the instruction as a whole, together 

with the other instructions given by the court. (Estelle, supra, 502 U.S. at p. 72; 

Paysinger, supra, 174 Cal.App.4th at p. 30.) Notably, CALCRIM No. 460 also 

specifically states, “[t]o decide whether the defendant intended to commit robbery, please 

refer to the separate instructions I’ll give you on that crime.” The court then instructed 

the jury with CALCRIM No. 1600 concerning robbery. That instruction, in turn, 

provides in relevant part that to be guilty of robbery defendant had to intend to deprive a 

person of his property using force or fear, and that if he formed the intent to take the 

property after using the force or fear, rather than forming the intent before or during the 

time he used force or fear, he did not commit a robbery. 

Thus, unlike defendant argues, the jury was told that to determine intent it had to 

apply CALCRIM No. 1600, and not simply presume without actually deciding the intent 

issue. “Jurors are presumed able to understand and correlate instructions and are further 

presumed to have followed the court’s instructions.” (People v. Sanchez (2001) 

26 Cal.4th 834, 852.) We presume the jury followed the court’s instructions here.

We also note that during deliberations the jury asked the court to clarify the 

difference between first and second degree robbery. After first explaining that defendant 

was charged with attempted second degree robbery, the court responded: “If you find 

that the People have proved beyond a reasonable doubt the elements of attempt (Jury 

Instruction 460), as well as the elements of robbery (Jury Instruction 1600), then the 

crime if proven in [count] 1 is attempted second-degree robbery.” This supplemental 

instruction further shows that the jury was not simply instructed to presume defendant’s 

intent from CALCRIM No. 460, but rather that it also had to consider CALCRIM No. 
28

1600 to determine whether the prosecution had met its burden of establishing the 

attempted robbery charge. 

CALCRIM No. 460 is not impermissibly vague, and it does not impose a 

mandatory presumption regarding a defendant’s mental state. The court, therefore, did 

not err in giving the instruction. 

DISPOSITION

The judgment is conditionally reversed. The cause is remanded to the trial court 

to conduct a hearing at which the court shall determine whether the prosecutor’s sexual 

orientation-based reasons for his challenge to D.J. and S.L., while a factor, were not 

determinative and that there were neutral and nondiscriminatory reasons supporting the 

challenges. If the trial court finds the latter, the judgment shall be reinstated as of the 

date of the trial court’s ruling to that effect. If the trial court finds that the prosecutor’s 

sexual orientation-based reasons were determinative, that is, there were no supportable 

neutral and nondiscriminatory reasons for the challenges, the trial court will order a new 

trial. 

 HULL , J.

We concur:

 BLEASE , Acting P. J.

 DUARTE , J.