Filed 7/31/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

TRAVIS MITCHELL HICKS,

Defendant and Appellant.

 D081981

 (Super. Ct. No. RIF1800868)

APPEAL from a judgment of the Superior Court of Riverside County, 

Stephen J. Gallon, Judge. Reversed and remanded.

Arielle Bases, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Robin 

Urbanski, Donald W. Ostertag, and Juliet W. Park, Deputy Attorneys 

General, for Plaintiff and Respondent.

A jury convicted Travis Mitchell Hicks of attempted murder and 

assault with a semiautomatic firearm, among several other offenses and 

enhancements. The convictions stemmed from a shooting that took place 

after a confrontation at a bar between Hicks and the victim. On appeal from 
2

that verdict, Hicks, who is African-American, argues the trial court violated 

his constitutional rights under Batson v. Kentucky (1986) 476 U.S. 79

(Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) when it 

overruled his counsel’s objection to the prosecutor’s use of a peremptory 

challenge against an African-American prospective juror. As we shall 

explain, we agree the court erred when it overruled the defense objection. 

Accordingly, the judgment is reversed and the matter is remanded for a new 

trial. 

FACTUAL AND PROCEDURAL BACKGROUND

On February 15, 2018, around midnight, the victim went to a bar in 

Moreno Valley with several friends. He was extremely intoxicated when he 

encountered Hicks, and the two men became involved in an argument. 

Witnesses overheard the men make gang-related references, followed by two 

loud gunshots within seconds of each other. Hicks testified in his own 

defense and told the jury the victim, who was not armed, threatened to shoot 

him several times and that he shot the victim in self-defense. Hicks shot the 

victim in his right arm and back, paralyzing him from the waist down. 

Hicks fled the scene, but was detained the following day. He initially 

denied shooting the victim, but eventually admitted his involvement to 

investigators. Thereafter, the Riverside County District Attorney filed an 

information charging Hicks with attempted murder (Pen. Code,1 §§ 664, 187, 

subd. (a); count 1); assault with a semiautomatic firearm (§ 245, subd. (b); 

count 2); possession of a firearm by a prohibited person (§ 29800, subd. (a)(1); 

count 3); and possession of ammunition by a prohibited person (§ 30305, 

subd. (a); count 4). 

1 All further statutory references are to the Penal Code unless otherwise 

indicated.
3

As to count 1, the information alleged that Hicks personally inflicted 

great bodily injury (§§ 12022.7, subd. (a), 1203.075, subd. (a)) and that he 

personally and intentionally discharged a firearm and proximately caused 

great bodily injury to another person who was not an accomplice 

(§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)). As to count 2, the information 

alleged that Hicks inflicted great bodily injury causing the victim to suffer 

paralysis (§ 12022.7, subd. (b)) and that he personally inflicted great bodily 

injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). The information also 

alleged that Hicks had a prior conviction for committing assault with a 

semiautomatic firearm (§§ 245, subd. (b), 667.5, subd. (b)), which qualified as 

a serious felony (§ 667, subd. (a)) and a serious violent felony (§§ 667, 

subds. (c) & (e)(1), 1170.12, subd. (c)(1)). 

After a six-day trial, the jury found Hicks guilty of all counts and found 

true all of the enhancement allegations as to counts 1 and 2. In a separate 

trial, the court found the prior conviction allegations true. The court 

sentenced Hicks to state prison for a determinate sentence of 12 years 

8 months plus an indeterminate sentence of 14 years to life. Hicks filed a 

timely notice of appeal. 

DISCUSSION

Hicks’s only contention on appeal is that by allowing the prosecutor’s 

peremptory challenge of an African-American juror, the court violated his 

right “ ‘to trial by a jury drawn from a representative cross-section of the 

community under article I, section 16 of the state Constitution’ ” and “ ‘ “to 
4

equal protection under the Fourteenth Amendment.” ’ ”2 (People v. Taylor

(2010) 48 Cal.4th 574, 611.) In response, the Attorney General asserts that 

substantial evidence supported the trial court’s decision to allow the 

peremptory challenge finding that the prosecutor’s stated reasons for striking 

the juror were valid and race neutral.

I

Additional Background

During the general voir dire of the jury panel, the juror in question 

fielded two questions from trial counsel. The prosecutor asked her whether 

she could convict the defendant, if the evidence showed his guilt beyond a 

reasonable doubt, even if she did not like the victim of the crime. She 

responded that whether she liked the victim would not influence her decision 

and explained that as a former prison nurse, she made a conscious decision 

not to look at the reasons for her patients’ incarceration because she did not 

want that information to influence the care she provided. Later, the 

prosecutor noted that the juror had stated in her juror questionnaire 

responses that she had both positive and negative feelings about the criminal 

justice system, and asked the juror to explain. The juror then asked if she 

could discuss her answer in private. She also stated that she could set aside 

her feelings and she had the ability to focus on the task at hand, and not 

bring her feelings into her role as juror. 

2 In his initial opening brief, Hicks asserted that the court’s ruling 

allowing the prosecutor’s peremptory challenge violated Code of Civil 

Procedure section 231.7. That statute, however, took effect after the jury was 

empaneled in Hicks’s trial and is not applicable to his case. As a result, we

permitted Hicks to file a supplemental opening brief and the Attorney 

General to file a supplemental respondent’s brief. 
5

After the session of questioning concluded, counsel joined the juror in 

chambers with the judge outside the presence of the other panelists. The 

juror explained that she had two felony convictions, grand theft and perjury,

which occurred seven years earlier. She did not want to disclose this 

information in front of the other prospective jurors because she feared it 

would bias them against her. She also stated that she had served on a jury 

before, and had been a witness both for the defense and the prosecution in 

past criminal cases. She explained that her felony convictions would not 

color her decision making as a juror. When the court asked her if she felt she 

was treated fairly by the justice system, she answered yes, and stated that 

she could be impartial. The prosecutor then noted that on her questionnaire 

she stated something along the lines that “justice had been served” in her 

case. The juror responded that being convicted of the crimes was the 

negative she referred to in her questionnaire, but that it was “one of life’s 

lessons” and she had learned from it and moved on. 

When it came time to exercise peremptory strikes, the prosecutor used 

a challenge to remove the juror. Hicks’s defense counsel then moved to 

prevent the challenge on the grounds it was discriminatory under Batson, 

supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258. Defense counsel noted 

that Hicks is African-American, and this juror was one of only two AfricanAmericans in the jury pool at that time. Counsel explained, “I don’t know if 

the record is clear, but my client is African-American and the victim is also 

African-American. And going back over [the juror’s] questionnaire and her 

answers to questions during voir dire, including back here in chambers, she 

was very clear that she could be fair. She had experience with the criminal 

justice system from pretty much all sides of it. ... She seems like an excellent 
6

juror. She presented as an excellent juror, and there was simply nothing 

more to justify a strike.” 

In response, the prosecutor stated his reasoning “was one, that she did 

disclose she was convicted of grand theft. And I know that she states that 

justice was served for her. And while I agree that she does have some 

experience on both sides, I felt the way she talked about her experiences, she

was rather too opinionated about the way she was explaining things, and I 

felt like that would interfere with the ability to work with other jurors and 

would always just come from a—well, I did—I had this experience and I had

that experience. So that’s really my reason for exercising the peremptory.” 

The court stated it would allow the peremptory challenge: “The court 

feels that the stated reason is acceptable to the court that a juror was 

convicted of grand theft. And so that would be a race-neutral reason for a 

peremptory challenge. The challenge will be allowed.” Defense counsel then 

noted that the conviction was not the “stated reason,” rather “it was more the 

opinionated ... way [the juror] stated her opinions.’ The prosecutor clarified,

“It is a concern, Your Honor, because that’s something that would, I guess, 

cloud her view of things, was her own negative experience of having gone 

through the justice system and having been convicted. And it wasn’t that 

long ago. It was about six years ago.” The court then allowed “the excusing 

of that juror for the stated reasons.” 

II

Legal Standards

“Both the state and federal Constitutions prohibit the use of 

peremptory strikes to remove prospective jurors on the basis of group bias. 

(Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276–277.)” 

(People v. Scott (2015) 61 Cal.4th 363, 383 (Scott).) “The discriminatory use 
7

of peremptory challenges harms not only defendants but also ‘the excluded 

jurors and the community at large,’ as it ‘forecloses a significant opportunity 

to participate in civic life’ [citation] and ‘ “undermine[s] public confidence in 

the fairness of our system of justice.” ’ [Citation.] ‘The exclusion by 

peremptory challenge of a single juror on the basis of race or ethnicity is an 

error of constitutional magnitude requiring reversal.’ ” (People v. Silas (2021) 

68 Cal.App.5th 1057, 1067–1068.)

To determine if a preemptory challenge is valid and race neutral, the 

trial court conducts the now familiar Batson/Wheeler inquiry, which “consists 

of three distinct steps. First, the opponent of the strike must make out a 

prima facie case by showing that the totality of the relevant facts gives rise to 

an inference of discriminatory purpose in the exercise of peremptory 

challenges. Second, if the prima facie case has been made, the burden shifts 

to the proponent of the strike to explain adequately the basis for excusing the 

juror by offering permissible, nondiscriminatory justifications. Third, if the 

party has offered a nondiscriminatory reason, the trial court must decide 

whether the opponent of the strike has proved the ultimate question of 

purposeful discrimination.” (Scott, supra, 61 Cal.4th at p. 383.) 

“When the trial court solicits an explanation of the challenged excusals

without first indicating its views on the prima facie issue, we may infer an 

implied prima facie finding. ... Once an implied prima facie finding has been 

made, that issue becomes moot, and the only question remaining is whether 

the individual justifications were adequate.” (People v. Arias (1996) 13 

Cal.4th 92, 135; see also Scott, supra, 61 Cal.4th at p. 387, fn. 1 [“When a 

trial court solicits an explanation of the strike without first declaring its 

views on the first stage, we infer an ‘implied prima facie finding’ of 
8

discrimination and proceed directly to review of the ultimate question of 

purposeful discrimination.”].)

Here, the court implicitly found Hicks established a prima facie case of 

racial discrimination. We, therefore, proceed to the third step of the 

Batson/Wheeler inquiry and analyze whether the court properly accepted the 

prosecutor’s proffered race neutral reasons. (Scott, supra, 61 Cal.4th at 

p. 387, fn. 1; People v. Hensley (2014) 59 Cal.4th 788, 802 (Hensley).) 

“ ‘At the third stage of the [Batson/Wheeler] inquiry, “the issue comes 

down to whether the trial court finds the prosecutor’s race-neutral 

explanations to be credible. Credibility can be 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.” [Citation.]’ [Citation.] Implausible or fantastic 

justifications offered at the second stage may not be sufficiently credible to 

pass muster at stage three. [Citation.] ‘In assessing credibility, the court 

draws upon its contemporaneous observations of the voir dire.’ [Citation.] 

This assessment may also take into account ‘the court’s own experiences as a 

lawyer and bench officer in the community, and even the common practices of 

the advocate and the office that employs him or her.’ ” (People v. Winbush

(2017) 2 Cal.5th 402, 434 (Winbush); see People v. Gutierrez (2017) 2 Cal.5th 

1150, 1158–1159 (Gutierrez).) “This portion of the Batson/Wheeler inquiry 

focuses on the subjective genuineness of the reason, not the objective 

reasonableness.” (Gutierrez, at p. 1158.) Importantly, “[w]hen they assess 

the viability of neutral reasons advanced to justify a peremptory challenge by 

a prosecutor, both a trial court and reviewing court must examine only those 

reasons actually expressed.” (Id. at p. 1167.) 
9

“When a reviewing court addresses the trial court’s ruling on a 

Batson/Wheeler motion, it ordinarily reviews the issue for substantial 

evidence.” (Gutierrez, supra, 2 Cal.5th at p. 1159.) “ ‘We review a trial 

court’s determination regarding the sufficiency of a prosecutor’s justifications 

for exercising peremptory challenges “ ‘with great restraint.’ ” [Citation.] 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.’ ” (Winbush, supra, 2 Cal.5th at p. 434; 

see Gutierrez, at p. 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.’ ” (Hensley, supra, 59 

Cal.4th at p. 803.)

III

Analysis

Here, the record shows that the court relied on two reasons to find that 

the prosecutor’s use of the peremptory challenge against this juror was race 

neutral. First, the prosecutor stated the juror’s prior felony convictions were 

a negative experience that impacted the juror’s ability to be impartial. 

Second, the prosecutor asserted the juror was too opinionated, which would 

interfere with her ability to work with other jurors. The trial court accepted 

these reasons as valid and race neutral. We conclude these findings were not 

supported by the evidence before the court.

A

With respect to the felony convictions, Hicks first argues that the 

juror’s convictions are not a proper basis for a peremptory challenge in light 

of Senate Bill No. 310 (Sen. Bill 310), which amended Code of Civil Procedure 

section 203 to allow individuals who have been convicted of a felony to serve 
10

as jurors. Hicks also contends that to the extent the court’s ruling was based 

on the juror’s own negative experience with the justice system, insufficient 

evidence supported this finding. The People respond that Hicks forfeited his

claim based on Senate Bill 310 because it was not raised below, and that 

sufficient evidence supported the court’s finding that the juror’s personal 

experience with the justice system could cloud her ability to serve on the jury. 

As an initial matter, we agree with Hicks that his failure to specifically 

reference Senate Bill 310 when he asserted his Baston/Wheeler motion did 

not forfeit his ability to raise the law on appeal. Hicks’s trial counsel was not 

required to explicitly state the law that was in effect at the time; rather, it is 

presumed the court and the prosecution were aware of the fact that a felony 

conviction no longer precluded an individual from jury service. (See People v.

Mosley (1997) 53 Cal.App.4th 489, 496 [“The general rule is that a trial court 

is presumed to have been aware of and followed the applicable law.”].)

Senate Bill 310 was enacted to address the discriminatory effect of 

prohibiting prior felons from serving on a jury—especially on AfricanAmerican men. (Assem. Comm. on Judiciary, Analysis of Sen. Bill No. 310 

(2019–2020 Reg. Sess., June 18, 2019, p. 5.) Under former California law,

individuals who had suffered a prior felony conviction were prohibited from

serving on a jury. (Sen. Comm. on Public Safety, Analysis of Sen. Bill 

No. 310, April 2, 2019, p. 2.) However, effective January 1, 2020, Senate Bill

310 amended Code of Civil Procedure section 203 to allow individuals who 

have been convicted of a felony to serve on juries so long as they are not 

(1) currently incarcerated in any prison or jail, (2) currently on parole, postrelease community supervision, felony probation, or mandated supervision 

for the conviction of a felony, or (3) currently required to register as a sex 
11

offender based on a felony conviction. (Code Civ. Proc., § 203, subd. (a)(9), 

(10), (11).)

As the People point out, however, while Senate Bill 310 sought to 

“promote fairness and legitimacy in California’s jury system by ensuring a 

more accurate cross section of the community,” the author of the bill also 

made clear that the legislation “preserve[d] the existing right of Judges, 

District Attorneys, and the defense counsels to dismiss any potential jurors 

from a jury pool through the voir dire process.” (Assem. Com. on Judiciary, 

Rep. on Sen. Bill No. 310 (2019–2020 Reg. Sess.) June 25, 2019, p. 4.) Thus, 

while the juror was not prohibited from serving on the jury because of her 

prior felony conviction, the prosecutor was also not prohibited from exercising

a peremptory challenge to dismiss her so as long as it was not based on group 

bias. (See People v. Lomax (2010) 49 Cal.4th 530, 575 [a “criminal conviction 

[i]s a valid, race-neutral reason for the” dismissal of a prospective juror].)

This leads us to the prosecutor’s proffered race-neutral reason that the 

juror’s negative experience with the justice system interfered with her ability 

to serve on the jury. Contrary to the People’s assertion, there was no 

evidence in the record to support the trial court’s finding that the juror’s 

conviction clouded her ability to serve. Rather, during voir dire of the juror in 

the judge’s chambers, she explained that the only negative aspect of 

experience was the simple fact that she had been convicted of a felony. 

Specifically, the juror explained that on her juror questionnaire she wrote 

that “justice was served” for her and that because she had worked for the 

prison system and gone through the justice system herself, it “was ironic to 

do both.” She stated the experience of going through the system was negative 

because “no one wants to go through being convicted. No one wants to do 
12

that. So that was the negative part.” She then stated that it was a long time 

ago, and that “it has no bearing on the case.”

While we are mindful that we must always defer to the trial court’s 

credibility determinations, nothing stated by the juror during voir dire or by 

the court or counsel provides any basis to support the court’s finding that the 

juror’s experience as a convicted felon would interfere with her jury service. 

Notably, nothing in the record identified any characteristic that was observed 

by the court or counsel to support its finding that the challenge was raceneutral. To the contrary, during voir dire the juror stated multiple times that 

she could remain impartial and that her experience with the justice system in 

different capacities improved her ability to be neutral and unbiased. We 

agree with Hicks that this record does not support the court’s finding that 

this juror’s prior felony conviction was a race-neutral reason for the 

prosecutor’s peremptory challenge. (See People v. Silva (2001) 25 Cal.4th 

345, 385 [“ ‘The trial court has a duty to determine the credibility of the 

prosecutor’s proffered explanations’ [citation], and it should be suspicious 

when presented with reasons that are unsupported or otherwise 

implausible”]; and People v. Miles (2020) 9 Cal.5th 513, 539 (Miles) 

[“ ‘ “[w]hen the prosecutor’s stated reasons are either unsupported by the 

record, inherently implausible, or both, more is required of the trial court 

than a global finding that the reasons appear sufficient.” ’ ”].)

B

The other, and perhaps primary, reason provided by the prosecutor in 

support of the challenge was that the juror was “too opinionated.” As Hicks 

points out in his briefing, “ ‘a problematic attitude’ has been historically 

associated with improper discrimination in jury selection.” Recent enacted 
13

legislation overhauling the procedure used to determine if a peremptory 

challenge is unconstitutional highlights this problem. 

Although not applicable in this case, Code of Civil Procedure 

section 231.7, sets forth the Legislature’s express findings “that peremptory 

challenges are frequently used in criminal cases to exclude potential jurors 

from serving based on their race, ethnicity, gender, gender identity, sexual 

orientation, national origin, or religious affiliation, or perceived membership 

in any of those groups, and that exclusion from jury service has 

disproportionately harmed African Americans, Latinos, and other people of 

color.” (Assem. Bill No. 3070 (2019–2020 Reg. Sess.) § 1(b), italics added.) 

The new law states that “[t]he existing procedure for determining whether a 

peremptory challenge was exercised on the basis of a legally impermissible 

reason has failed to eliminate ... discrimination,” and thus “designates

several justifications as presumptively invalid.” (Ibid.) Included among 

those presumptively invalid reasons are “[e]xpressing a distrust of or having 

a negative experience with law enforcement or the criminal legal system,” 

and whether “[t]he prospective juror exhibit[s] either a lack of rapport or 

problematic attitude, body language, or demeanor.” (Code Civ. Proc., § 231.7, 

subds. (e)(1), (g)(1)(B), (g)(2).) 

The new law does not apply in this case, but it does inform the 

Batson/Wheeler analysis. The suspect reasons for using a peremptory 

challenge that were identified by the Legislature echo case law holding that

“explanations which focus upon a venireperson’s body language or demeanor 

must be closely scrutinized because they are subjective and can be easily used 

by a prosecutor as a pretext for excluding persons on the basis of race.” 

(People v. Harris (1989) 129 Ill.2d 123, 176; see also Harris v. Hardy (7th Cir. 
14

2012) 680 F.3d 942, 965 [“Demeanor-based explanations for a strike are 

particularly susceptible to serving as pretexts for discrimination.”].) 

Although the prosecutor stated his view that the juror would be too 

opinionated because of her experience with the justice system, there is no 

evidence of this character trait in the record. During voir dire, the juror

expressed that she could remain neutral and had experience doing so as a 

prison nurse. In addition, the juror made no comments that suggested she 

was more opinionated than other jurors who remained on the jury. For 

example, Alternate Juror 1 expressed an opinion in favor of law enforcement 

and showed a strong opinion of how jurors should behave. The alternate 

explained that when serving on a jury in a prior trial, he had witnessed other 

jurors refusing “to make a ruling because there was no photographic evidence 

of the crime,” which he found “ridiculous.” Alternate Juror 1 stated he could 

put his bias aside. The challenged juror, in contrast, made no statement in 

favor of the defense or the prosecution, and stated only that she would judge 

the case on the evidence presented. This discrepancy in treatment suggests 
15

that the peremptory challenge at issue here was pretextual.3 (See Gutierrez, 

supra, 2 Cal.5th at p. 1173 [“comparative analysis may be probative of 

purposeful discrimination at Batson’s third stage,” though “[t]he individuals 

compared need not be identical in every respect aside from ethnicity”].)

Crucially, no evidence in the record before this court supports the trial 

court’s determination that the prosecutor’s assertion that the juror was too 

opinionated was race neutral.4 In addition, the trial court accepted the 

3 The Attorney General asserts, “a prosecutor may excuse a juror based 

on their sincere belief that the juror is too opinionated or would be unable or 

unwilling to deliberate with fellow jurors.” In support of the assertion, he

cites Miles, supra, 9 Cal.5th 513 and People v. Gutierrez (2002) 28 Cal.4th 

1083. In Miles, the court concluded that the prospective juror’s explicit

statement in his juror questionnaire that he was a leader because he 

preferred his own opinion over those of others supported the challenge based 

on the prosecutor’s proffered reason that the juror “might have difficulty 

considering other opinions and deliberating with fellow jurors—particularly 

given that [the panel member] had not worked with a group of people to 

make a decision before.” (Miles, at p. 553.) Likewise, in People v. Gutierrez,

supra, at page 1125, the prospective juror at issue expressly “commented that 

he would not be influenced by anyone’s opinion but his own.” Unlike the 

jurors at issue in these cases, here, there was no evidence showing that the 

juror was opinionated in such a way. To the contrary, she expressed that her 

past experiences would not color her consideration of the evidence in this 

case. 

4 The Attorney General points out that the prosecutor’s acceptance of 

another African-American juror in this case supports a showing of good faith 

by the prosecutor. We agree this fact “ ‘lessen[s] the strength of any inference 

of discrimination that the pattern of the prosecutor's strikes might otherwise 

imply.’ (People v. Reed (2018) 4 Cal.5th 989, 1000.) But accepting one juror 

of a particular group does not necessarily mean another juror of the same 

group was not dismissed due to membership in the same group. There could 

be reasons why one juror appears favorable to the party, while the other juror 

is nonetheless stricken precisely because of his or her group.” (People v. 

Collins (2021) 60 Cal.App.5th 540, 554.)
16

prosecutor’s stated reasons without itself discussing the juror’s demeanor or 

testimony during voir dire, leaving this court with no basis to evaluate 

whether such factors were relevant to its decision to deny Hicks’s 

Batson/Wheeler motion. (See Snyder v. Louisiana (2008) 552 U.S. 472, 479 

[finding Batson error where “the record [did] not show that the trial judge 

actually made a determination concerning [the prospective juror’s]

demeanor”].) On this record, we agree with Hicks that insufficient evidence 

supported the trial court’s finding that the prosecutor’s stated reasons for his 

peremptory challenge of this juror were race neutral. 

DISPOSITION

The judgment is reversed and the matter is remanded for a new trial at

the election of the District Attorney. 

McCONNELL, P. J.

I CONCUR:

RUBIN, J.

I CONCUR IN THE RESULT:

O’ROURKE, J.