1

Filed 1/12/16 P. v. Little 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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, A140502

v. (Alameda County

Super. Ct. No. C171014)

DARVELLE B. LITTLE,

Defendant and Appellant.

______________________________________/

A jury convicted appellant Darvelle B. Little of assault with a semiautomatic 

firearm (Pen. Code, § 245, subd. (b)) and second degree robbery (Pen. Code, § 211) and 

found true various sentencing enhancement allegations. The trial court sentenced Little 

to state prison. Little appeals. He contends the court: (1) erred by declining to hold a 

hearing on his second People v. Marsden (1970) 2 Cal.3d 118 (Marsden) motion; (2) 

denied him his right to self-representation under Faretta v. California (1975) 422 U.S. 

806 (Faretta); and (3) erred by denying his Batson/Wheeler motion.

1

 

We reject Little’s second and third claims, but we agree the court erred by failing 

to allow Little to state his reasons for his dissatisfaction with trial counsel. We remand 

 

1

Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 

Cal.3d 258 (Wheeler), disapproved on another ground in Johnson v. California (2005) 

545 U.S. 162 (Johnson). Unless noted, all further statutory references are to the Penal 

Code.
2

the matter to the trial court to conduct a Marsden hearing on Little’s claim he was not 

being “represented right” and for such further proceedings as may be required. 

FACTUAL AND PROCEDURAL BACKGROUND

We provide an overview of the facts here and additional factual and procedural 

details in the discussion of Little’s specific claims.

Prosecution Evidence

In September 2012, Jonathan Chee attended a concert in Oakland with a group of 

friends, including Brahm Patterson. Chee and his friends drank beer, and smoked 

cigarettes and marijuana. Little — whom Chee did not know — approached Chee’s 

group. Little shared a joint with Chee, and asked him about obtaining marijuana. Chee 

told Little he could “‘get some’” marijuana for him. The two men exchanged telephone 

numbers. Throughout September 2012, Chee and Little exchanged calls and text 

messages “to deal with [the] marijuana.” 

On September 30, 2012 — and at Little’s request — Chee and Patterson drove to 

Oakland to sell Little half a pound of marijuana. When Chee and Patterson arrived at the 

appointed location, Little was not there. Little directed them to a second location, and 

then a third. When Chee and Patterson arrived at the third location, Chee saw Little. 

Little got into the backseat of Chee’s car and directed Chee to an alleyway. Chee drove 

to the alley, parked, and opened the trunk of the car. In the trunk was a black messenger 

bag containing a Ziploc bag full of marijuana and Chee’s personal items. 

When Chee opened the messenger bag to show Little the marijuana, Little drew a 

small, silver gun and pressed it into Chee’s right thigh. Little whispered “‘Either give me 

the weed, or I am going to shoot you’” and grabbed the strap of the messenger bag. Chee 

said, “‘Don’t take my black bag,’” and held onto it. The two men struggled over the 

messenger bag. Little shot Chee in the left leg and ran away with the Ziploc bag of 

marijuana. An ambulance took Chee to a hospital where he had surgery to repair damage 

to his femoral artery and a branch of his femoral vein. Without medical attention, Chee 

would have bled to death. 
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Little made numerous phone calls in jail. During one call, Little asked his friend 

to “[g]et rid” of his phone. In other calls, Little expressed anger upon learning the mother 

of his child had spoken to the prosecutor. 

Defense Evidence

Little admitted he was a drug dealer. He described meeting Chee, and their 

communication in the days preceding the incident. Chee agreed to sell Little a pound of 

marijuana. Little sold some of the marijuana, but owed Chee money. Little and Chee 

arranged to meet on September 30, 2012; Little would repay Chee, and Chee would 

provide Little with additional marijuana to sell. Chee parked his car in the alley and 

asked Little “for the money[.]” Little had the money but did not show it to Chee because 

he “wanted to make sure [Chee] still had the weed.” At that point, Chee began cursing at 

Little and demanding the money. Chee eventually showed Little the marijuana, which 

was in a Ziploc bag, wrapped in a t-shirt. As Little smelled the marijuana, he felt the bag 

jerk. Chee snatched the bag away from Little, pulled a “little silver gun” from his waist, 

and pointed it at Little. Chee said, “‘Fool. I am not playing with you. Give me my 

fucking money.’” 

Little thought Chee was going to shoot him, so he lunged for the gun. As the men 

struggled, the gun went off and Chee’s grip on the gun loosened. Little pushed Chee off 

of him and ran away; as he ran, he looked over his shoulder and saw Chee on the ground, 

pointing the gun at him. Little admitted disposing of his phone before he was arrested; he 

also explained the phone calls he made in jail. On cross-examination, Little admitted 

lying in a police interview. 

DISCUSSION

I.

The Court Erred by Failing to Allow Little to State Reasons 

for His Dissatisfaction with Trial Counsel

A. Background

On August 29, 2013, Little moved to substitute counsel pursuant to Marsden. At 

the Marsden hearing, Little complained his attorney had “waive[d] time[,]” had not filed 
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various motions, and had told Little he would “lose [his] case.” Defense counsel 

explained that he had waived time to conduct discovery, including subpoenaing Little’s 

cell phone records. Counsel noted he had filed a bail motion at Little’s request, and 

explained why he had not filed a motion to set aside the information, a motion to 

suppress, or a motion challenging the photographic lineup. Counsel also described the 

discovery he had given Little, who wanted “[w]hatever the DA has.” Finally, counsel 

noted he had discussed trial defenses with Little and advised him to consider a plea 

bargain because of the strength of the prosecution’s case and Little’s potential prison 

sentence. 

The court denied the Marsden motion. It concluded defense counsel had “been 

doing everything that a competent attorney could,” and had given Little a “candid 

assessment of the case.” The court explained defense counsel’s assessment of the case 

did not “mean that the attorney is not going to be competent in representing you. . . . [I]f 

you do decide to go to trial, I feel confident that [defense counsel] is going to 

competently represent you.” The court scheduled a pretrial hearing for September 17, 

2013. Trial was scheduled to begin on September 23, 2013. 

At the outset of the pretrial hearing on September 17, 2013, the judge said, “Mr. 

Little, I talk with lawyers. I don’t talk to folks that are represented by counsel.” Little 

said, “I’m not being represented” and defense counsel explained, “Your Honor, I think 

Mr. Little wants a Marsden motion.” The judge responded, “[h]e just had one. He’s not 

getting another one. He just had one.” When Little asked to address the court, the judge 

said, “No. You had one . . . not even three weeks ago[.]” Then Little asked, “Can I 

represent myself? I would rather represent myself.” The judge responded, “Do you want 

to do that? You can represent yourself. So before you do that, there is a form you have 

to fill out and I can give you that form but let me make a couple of comments about this. 

“You have a right under the constitution to represent yourself. My job is to make 

sure if you exercise that right you understand what you’re doing; that you’re doing it 

freely, voluntarily, and knowingly; that . . . you understand what you’re getting into; that 

you’re not doing it just because you’re annoyed with me, because you’re annoyed with 
5

the lawyer that you have that the Court feels is doing a good job for you because you’ve 

already had a hearing on this point. 

“And it’s not back and forth. . . . If you’re going to represent yourself, that’s it. 

You’re representing yourself all the way through to the end. There’s no take-backs. You 

are a grown man. I advise you of what the consequences are. If you make that decision, 

you rise or fall on it. There is no take-backs because we do not have time for that around 

here, you changing your mind, I want a lawyer back, now I don’t want a lawyer, 

depending upon how you feel at any given moment. 

“If you make the decision to represent yourself, then that’s going to be it. You’re 

going to be at trial, picking a jury, the D.A.’s making all sorts of motions and citing code 

sections, you won’t know what she’s talking about, and when you say to me or to my 

colleague who is dressed like me, I want my lawyer back, they’re going to say no. So I 

just want to make sure you understand that.

“If you have all that in mind and want to do that, that’s fine, but I don’t want you 

to say, No one told me that I couldn’t get my lawyer back when I wanted my lawyer 

back. So it is a very, very long ugly road to hoe by yourself, sitting there in a felony jury 

trial, picking a jury and fighting off these motions the D.A. is making about stuff you 

don’t even understand. People do it. They’re usually sorry. They do it in my court, they 

come over and they’re sorry—in my trial court and say, Judge, I decided I want a lawyer

and I say, No, remember we had that discussion with the judge, . . . If you make the 

decision, that’s it.

“So if you want to explore that further, representing yourself, I’m happy to give 

you the form and have you go over that so I can be assured you’re making the decision 

knowingly, intelligently, and voluntarily. Short of that, this is your lawyer. We already 

had a . . . hearing with you less than three weeks ago as to why [defense counsel] should 

be discharged. That judge denied it so those are your options. [Defense counsel] or 

yourself.” Little then requested a continuance to get “a real lawyer. I’m not being 

represented right.” The court responded, “You have a real lawyer . . . . an excellent 

lawyer who knows what he’s doing, who defends people in these courts every day and 
6

has done so for years.” The judge told Little he could hire another attorney, but that 

attorney would need to be ready for trial on Monday, September 23, 2013. Little said he 

would “have somebody . . . by Monday” but did not hire a new attorney.

B. The Court Erred by Failing to Allow Little to Explain Reasons for Being 

Dissatisfied with Trial Counsel

On appeal, Little contends the court erred by failing to conduct a second Marsden

hearing. According to Little, the judge “expressed hostility” toward his Marsden motion 

and “refused out of hand to hear it.” “When a defendant seeks new counsel on the basis 

that his appointed counsel is providing inadequate representation—i.e., makes what is 

commonly called a Marsden motion [citation]—the trial court must permit the defendant 

to explain the basis of his contention and to relate specific instances of inadequate 

performance.” (People v. Smith (2003) 30 Cal.4th 581, 604.) We agree with Little and

conclude the court erred by refusing to give him an opportunity to state reasons for his 

dissatisfaction with trial counsel. 

People v. Reed (2010) 183 Cal.App.4th 1137 (Reed) — not cited by Little — is 

instructive. In that case, the defendant filed two unsuccessful pretrial Marsden motions 

and a jury convicted him of various sex offenses. (Id. at pp. 1139, 1140-1141). At his

sentencing hearing, the defendant moved “for new trial on the grounds of incompetence 

of counsel.” (Id. at p. 1140.) Defense counsel stated the defendant was “asking me to 

ask the court to grant him a new trial based on my incompetence” and that counsel 

“cannot make it for him” and did not know what vehicle to use to make such a motion. 

(Id. at p. 1142.) Defense counsel later reiterated the defendant was “indicating to me he 

wants to bring that motion regarding my incompetence” but the trial court did not inquire 

into the basis for the defendant’s incompetence claim. (Id. at p. 1142.) Instead, the court 

stated: “any dialogue you may have had with your attorney, any preparation that may 

have taken place for your case is something that is not in the realm of things that I am 

privy to. . . . [¶] So, I am not in the position to evaluate whether she was effective counsel 

or not[.]” (Id. at p. 1143.) 
7

On appeal, we concluded the trial court was obligated to inquire into the basis for 

counsel’s alleged incompetence, and its failure to conduct such an inquiry was reversible 

error. (Reed, supra, 183 Cal.App.4th at p. 1148.) First, we determined the defendant’s 

“expressed desire to pursue a motion for new trial based on counsel’s incompetence, the 

fact that defense counsel said, ‘I cannot make it for him,’ and the context of [the 

defendant’s] prior unsuccessful Marsden motions, made it sufficiently clear that [the 

defendant] was in fact requesting substitute counsel to pursue the motion for new trial.” 

(Id. at pp. 1145-1146.) Next, we concluded the court’s “[f]ailure to undertake the 

‘imperative duty’ to make the requisite Marsden inquiries on such issues was error.” (Id.

at p. 1148.) As we explained, “[t]he trial court here made no inquiry at all. That lack of 

inquiry constitutes reversible error.” (Id. at p. 1145.) 

We then concluded the “complete absence of any record” required remand 

because we could not “determine from the silent record before us whether further inquiry 

would have led to a different result.” (Reed, supra, 183 Cal.App.4th at pp. 1148-1149, 

fn. omitted.) Other cases have reached similar results. (People v. Hill (2013) 219 

Cal.App.4th 646, 653 [“[b]ecause defendant might have been able to demonstrate that his 

attorney was not affording him adequate representation, the court’s failure to hold a 

hearing resulted in a record which precludes effective review, as was the case in 

Marsden”]; People v. Knight (2015) 239 Cal.App.4th 1, 3 [court’s failure to prevent the 

defendant “from fully articulating the reasons his counsel had been ineffective” required 

remand “for the limited purpose of conducting a Marsden hearing”].) 

As the Attorney General recognizes, a trial court’s failure to afford a defendant 

“an opportunity to state the reasons for his dissatisfaction with his attorney results in a 

record which is insufficient for meaningful review but the trial was otherwise free of 

error, it is appropriate to reverse the judgment and remand the cause for the limited 

purpose of conducting a postjudgment Marsden hearing. [Citations.]” (Hill, supra, 219 

Cal.App.4th at p. 653.) Here as in Reed, the court refused to allow Little to explain why 

he felt he was “not being represented” or not “being represented right.” On this silent 

record, we cannot conclude beyond a reasonable doubt a fully-articulated Marsden
8

motion would have been unsuccessful. (See People v. Knight, supra, 239 Cal.App.4th at 

p. 9.) “In light of that set of unique circumstances, we will reverse the judgment and 

remand the matter with directions to the trial court to conduct a posttrial Marsden hearing 

and to exercise judicial discretion to order a new trial, reinstate the judgment, or proceed 

otherwise as authorized by law.” (People v. Lopez (2008) 168 Cal.App.4th 801, 815.)

II.

Little’s Faretta Claim Fails 

Next, Little claims the court “incorrectly” advised him “that if he took on 

representing himself, he would never again be able to have the court appoint an attorney 

to represent him.” “‘A defendant in a criminal case . . . has the right to be represented by 

counsel at all critical stages of a criminal prosecution.’ [Citations.]” (People v. James

(2011) 202 Cal.App.4th 323, 328.) A defendant also “‘possesses the right to represent 

himself or herself. [Citation.]’ [Citation.]” (Id. at pp. 328-329.) When presented with a 

request for self-representation, the trial court must make the defendant “aware of the 

dangers and disadvantages of self-representation, so that the record will establish that ‘he 

knows what he is doing and his choice is made with eyes open.’ [Citation.]” (Faretta, 

supra, 422 U.S. at p. 835.) 

Here, the court did not — as Little claims — “unduly pressure[ ]” him into not 

pursuing his right to represent himself. “Rather, the court properly advised [Little] of the 

pitfalls of self-representation.” (People v. Jenkins (2000) 22 Cal.4th 900, 961 [trial court 

did not coerce the defendant into withdrawing Faretta motion].) Nor did the court 

“incorrectly advise” Little by telling him he could not change his mind during trial and 

request a lawyer. “‘A trial judge is not obligated to restore counsel if a Faretta defendant 

changes his mind in midtrial and no longer wants to represent himself. A request for 

restoration of the services of counsel is left to the sound discretion of the trial court . . .” 

(People v. Sullivan (2007) 151 Cal.App.4th 524, 555.)

Little’s reliance on U.S. v. Farias (9th Cir. 2010) 618 F.3d 1049 (Farias) does not 

alter our conclusion. In Farias, the district court told the defendant if he proceeded pro 

se, the court would not grant any additional time for him to prepare for a trial scheduled 
9

to start the next day. (Id. at pp. 1054-1055.) On appeal, the defendant argued the district 

court erred “by leading him to believe he would not have adequate time to prepare 

himself for trial which, . . . amounted to the outright denial of his request to proceed pro 

se.” (Id. at p. 1052.) The Ninth Circuit Court of Appeals agreed and concluded allowing 

the defendant only 24 hours to prepare for trial rendered the right to self-representation 

“‘meaningless.’” (Id. at p. 1054.) Little’s reliance on Farias is misplaced for at least two

reasons. First, we are not bound by lower federal court decisions. (People v. Williams 

(1997) 16 Cal.4th 153, 190.) Second, Farias is distinguishable. Here and in contrast to 

Farias, the court did not mislead Little or restrict the amount of time he would have to 

prepare for trial. We reject Little’s claim of Faretta error. 

III.

The Court Properly Denied Little’s Batson/Wheeler Motion

Little, an African-American, contends the prosecutor exercised a peremptory 

challenge to remove E.B., the only African-American prospective juror, because of her

race, and the court erred by denying his Batson/Wheeler motion. 

A. Background

During the court’s voir dire, E.B. stated she lived in Livermore and was retired 

from working at AT&T. She had never served on a jury, had “been the victim of a 

crime[,]” and had “close friends and associates” who were attorneys and police officers.

E.B.’s home and car were burglarized. When the prosecutor conducted voir dire, E.B. 

stated her husband was retired from working at the Alameda County Office of Education 

in “San Leandro at juvenile hall.” One of E.B.’s children was a social worker. 

The prosecutor used her ninth peremptory challenge to excuse E.B. and defense 

counsel made a Batson/Wheeler motion, arguing the evidence strongly suggested “race 

was a consideration” in excusing her. According to defense counsel, “nothing that [E.B.] 

disclosed . . . stands out . . . as somebody the prosecution would necessarily want to get 

rid of.” Defense counsel commented E.B. had a “stable family environment” and 

prosecution-friendly characteristics. At the court’s request, the prosecutor stated her 

reasons for excusing E.B. 
10

First, the prosecutor noted she had “no control” over jury pool composition and 

argued “courts do not hold against the government the fact that the [jury] panel lacked 

African-American members.” Second, the prosecutor explained she excused E.B. 

because: (1) she was late to court twice, on one occasion for 15 to 20 minutes, which 

showed a “disregard for the importance of this process[;]” (2) the occupations of E.B.’s 

husband and daughter “reflect[ed] an orientation toward rehabilitation and sympathy for 

defendants[;]”2(3) E.B. “constantly had her head in her hand” and showed “a lack of 

interest in the proceeding[;]” and (4) the prosecutor had a hard time reading E.B. and 

could “not get an emotional reaction from her at all[.]” 

In response, defense counsel argued he did “not observe any such gestures [or]

body language” by E.B. indicating she was disinterested, and that a Caucasian female 

juror appeared to be sleeping but the prosecutor “did not exercise a challenge against 

[her].” Defense counsel also argued E.B.’s tardiness did not necessarily indicate a lack of 

respect for the proceeding. After hearing additional argument, the court denied the 

Batson/Wheeler motion. In a thorough and detailed ruling, the court concluded Little 

made a prima facie case of racial discrimination, but the prosecutor had “legitimate and 

race neutral reasons” for excusing E.B., including her tardiness, which 

“inconvenience[d]” the parties and the jurors, and which “offended” the court. The court 

explained that its own observations “corroborate[d] and substantiate[d]” the prosecutor’s 

comments regarding E.B.’s demeanor; the court noted E.B.’s behavior and body language 

were legitimate and race neutral reasons to excuse her. Finally, the court determined the 

prosecutor’s concern about the professions of E.B.’s family members was legitimate and 

race-neutral. 

 

2

The prosecutor had excused a Caucasian juror for his lack of punctuality. She 

excused another Caucasian juror who had “worked in jails” and whose husband oversaw 

education in jails because of the possibility of bias or sympathy toward the incarcerated. 
11

B. Substantial Evidence Supports the Denial of Little’s Batson/Wheeler

Motion 

The test for analyzing Batson/Wheeler claims is well-established. “A party who 

excludes prospective jurors based on race violates the federal and state Constitutions. 

[Citation.] When examining allegations of such misconduct, there ‘is a rebuttable 

presumption that a peremptory challenge is being exercised properly, and the burden is 

on the opposing party to demonstrate impermissible discrimination.’ [Citation.] When a 

defendant claims a prosecutor has challenged a prospective juror based on an 

impermissible ground, the following procedures apply: ‘First, the defendant must make 

out a prima facie case “by showing that the totality of the relevant facts gives rise to an 

inference of discriminatory purpose.” [Citation.] Second, once the defendant has made 

out a prima facie case, the “burden shifts to the State to explain adequately the racial 

exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] 

Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . .

whether the opponent of the strike has proved purposeful racial discrimination.”’ 

[Citation.]” (People v. Hensley (2014) 59 Cal.4th 788, 802 (Hensley), quoting Johnson v. 

California, supra, 545 U.S. at p. 168.) “At this so-called third stage of the Batson

inquiry, the trial court often bases its decision on whether it finds the prosecutor’s raceneutral explanations for exercising a peremptory challenge are 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.”’ [Citations.]” (People v. Jones (2013) 57 Cal.4th 899, 

917.) 

“‘“Review of a trial court’s denial of a Wheeler/Batson motion is deferential, 

examining only whether substantial evidence supports its conclusions. [Citation.] ‘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
12

excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to 

evaluate the nondiscriminatory justifications offered, its conclusions are entitled to 

deference on appeal.’”’ [Citation.] ‘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.’ [Citation.]” (Hensley, supra, 59 Cal.4th at pp. 

802-803.) The parties agree “this is a step three case,” requiring us to analyze “whether 

the trial court properly accepted the race-neutral reasons given by the prosecutor.” 

(People v. Mai (2013) 57 Cal.4th 986, 1050.) 

We conclude the court made a sincere and reasoned attempt to evaluate the 

prosecutor’s nondiscriminatory justifications offered, and the court’s findings are 

supported by substantial evidence. (People v. Chism (2014) 58 Cal.4th 1266, 1316; 

People v. Huggins (2006) 38 Cal.4th 175, 227.) A prospective juror’s tardiness is a 

legitimate, race-neutral reason for excusing that juror. (People v. Davis (2008) 164 

Cal.App.4th 305, 313 [prosecutor had “plenty” of race-neutral reasons for excusing the 

prospective juror, including her lack of punctuality]; People v. Watson (2008) 43 Cal.4th 

653, 679 [record supported prosecutor’s conclusion that prospective juror was too 

immature and irresponsible, where the juror “had been late twice”].) Here, E.B. was late 

to court — on one occasion for 15 to 20 minutes — which inconvenienced the parties and 

the jurors, and showed a “disregard for the importance” of Little’s trial. 

Peremptory challenges are also properly made in response to “‘“bare looks and 

gestures,”’” or the demeanor of a prospective juror. (People v. Turner (1994) 8 Cal.4th 

137, 171, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 

5.) “Rigid jurors who appear emotionally detached and terse may be divisive during 

deliberations. They may not perform well as open-minded jurors willing and able to 

articulate their views and persuade others.” (Hensley, supra, 59 Cal.4th at p. 803.) Here, 

E.B.’s body language — observed by the prosecutor and the court — showed “a lack of 

interest in the proceeding” and was a legitimate, race-neutral reason for excusing her. 

Additionally, the prosecutor’s concern about the professions of E.B.’s family 

members, one who had worked in juvenile hall and the other as a social worker, was race-
13

neutral and had “‘‘some basis in accepted trial strategy’’” [citation] insofar as it stemmed 

from a concern about the general attitudes and philosophies persons in that profession 

might harbor.” (People v. Mai, supra, 57 Cal.4th at p. 1053 [social worker]; People v. 

Semien (2008) 162 Cal.App.4th 701, 708 [prosecutor excused pastor for a legitimate, 

race-neutral reason: he was “in the business of forgiveness”].)3 

We conclude the court properly denied Little’s Batson/Wheeler motion.

DISPOSITION

The judgment is reversed with directions to the trial court to conduct a posttrial

Marsden hearing into Little’s claims at the September 17, 2013 hearing that he was not 

“being represented” and “not being represented right” and to “exercise judicial discretion 

to order a new trial, reinstate the judgment, or proceed otherwise as authorized by law.” 

(People v. Lopez (2008) 168 Cal.App.4th 801, 815; see also People v. Reed (2010) 183 

Cal.App.4th 1137, 1149-1150.)

 

3

Little claims “comparative juror analysis demonstrates that the prosecutor’s 

reasons for challenging [E.B.]. were pretextual. [Citation.] The argument fails.” 

(Hensley, supra, 59 Cal.4th at p. 803.) “[F]or a comparison to be probative, jurors need 

not be identical in all respects, [citation] but they must be materially similar in the 

respects significant to the prosecutor’s stated basis for the challenge.” (People v. 

DeHoyos (2013) 57 Cal.4th 79, 107.) Significant differences existed between E.B. and 

prospective jurors numbers 1, 2, 6, 8, and 9. (People v. Vines (2011) 51 Cal.4th 830, 

852.) As a result, Little’s “proposed comparative juror analysis does not establish that 

the prosecutor’s reasons for excusing [E.B.] were pretextual.” (People v. DeHoyos, 

supra, 57 Cal.4th at p. 106.)
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_________________________

Jones, P.J.

We concur:

_________________________

Simons, J.

_________________________

Bruiniers, J.