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Filed 12/19/23 P. v. Nazareta CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FOUR

THE PEOPLE,

Plaintiff and 

Respondent,

v.

SAM ELLIOTT NAZARETA,

Defendant and 

Appellant.

 A162377

 (Contra Costa County

 Super. Ct. No. 51820497)

Sam Elliott Nazareta appeals after a jury convicted him of 

first degree murder. He contends the prosecution violated 

Batson-Wheeler by using a peremptory challenge to dismiss a 

juror because of the juror’s race or ethnicity.1 We agree and will 

reverse the judgment.2

BACKGROUND

The prosecution charged Nazareta, along with co-defendant 

Christova Topete, with murdering Joseph W. The prosecutor also 

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

(1978) 22 Cal.3d 258.

2 As the Attorney General did not timely file a respondent’s 

brief, we decide this appeal based on Nazareta’s opening brief.
2

charged Topete with a special allegation of personal use of a 

firearm and firearm-related offenses. After a month-long trial in 

August and September 2020, the jury found the special allegation 

was true and both defendants guilty as charged. The trial court 

sentenced Nazareta to 25 years to life in prison and Topete to 50 

years to life in prison.

The trial court conducted jury voir dire between August 5 

and August 14, 2020. The trial court did not use a jury 

questionnaire because of concerns about transmission of COVID19. It chose instead to give the parties twice as much time during 

voir dire to examine the jurors. After reviewing for hardships, 

each day the court asked a panel of 20 jurors some preliminary 

questions for about an hour or an hour and a half, and then 

turned over the rest of each day to allow the parties to question 

the panel.

During the trial court’s voir dire of juror A., A. stated that 

he was an IT analyst for UCSF and his spouse was a data 

manager for Contra Costa County.3 He had two sons, ages 20 

and 21, both of whom were students. He had never been on a 

jury before. Neither A. nor anyone close to him had been 

involved in a criminal matter, and he did not have any close 

family or friends in law enforcement. He did not have any strong 

feelings about guns or any of the concepts the trial court had 

3 The reporter’s transcript generally refers to jurors by last 

name. In the interests of protecting their privacy, we refer to 

them by their last initial. (Cal. Rules of Court, rule 8.90(b)(10).)
3

explained, such as the presumption of innocence, the burden of 

proof, or the jury’s role.

Topete asked A. what his children were studying, and A. 

responded, “Computer science and undeclared.” A. clarified that 

his spouse’s data management work for the county did not 

involve the court. Topete then asked, “And I wrote down that 

you’re an IT analyst. Who are you analyzing? Other employees 

or data? Or what are you doing?” A. replied, “Both data and 

desktop support.” A. later affirmed to Topete that he could follow 

the rule that a jury cannot consider the fact that a defendant 

chooses not to testify.

During the prosecutor’s questioning, A. said that he had 

lived in Contra Costa County for five years and in Alameda 

County before that. He did not have any problems with the 

concepts of aiding and abetting, two examples of which the 

prosecutor had provided. A. had no problem with needing to use 

circumstantial evidence to figure out what someone was thinking. 

He would evaluate a witness with a different lifestyle, such as 

one who used drugs or had a criminal history, just like all other 

witnesses.

The prosecutor then asked, “Anything else in your 

background?” A. replied, “Nothing else.”

During his portion of voir dire, Nazareta asked whether A. 

would commit to applying the judge’s rules critically and 

dispassionately, despite the fact that the case involved someone’s 

death. A. said, “I will. Happy to serve.” A. also said he could 

apply circumstantial evidence to determine whether the mental 
4

state of an aider and abettor had been proven beyond a 

reasonable doubt. He committed to voting accordingly if the 

circumstantial evidence had a reasonable conclusion that pointed 

to not guilty.

Following voir dire, the prosecutor used her first 

peremptory challenge on juror D., her eighth on juror L., and her 

fifteenth on A.

After the prosecutor excused A., Nazareta objected based 

on Batson-Wheeler. His counsel stated that Nazareta is Filipino, 

as are D., L., and A., making A. the third challenge to a Filipino 

juror. Nazareta argued that A. did not give any answers that 

indicated a bias for either side. Given the number of challenges 

to jurors of the same race and ethnicity as himself and the 

circumstances of A.’s answers, Nazareta urged the court to draw 

an inference of discrimination. Topete joined the challenge.

The court stated that it did not know Nazareta was Filipino 

and could not tell from the jurors’ names whether they were 

Hispanic or Filipino. When the court asked the prosecutor 

whether there was anything she wanted to say about whether 

Nazareta had shown a prima facie case of discrimination, the 

prosecutor likewise said she did not know the three jurors were 

Filipino. Speaking without her notes, the prosecutor then briefly 

stated her reasons for challenging the three jurors. As to A., she 

said that she knew very little about him, he was not forthcoming 

with his answers, and he worked alone and not in a group. She 

said given the number of unknowns about A., the other jurors 
5

coming up, and the number of peremptory challenges she had, 

she chose not to roll the dice on someone she knew little about.

The court told the prosecutor to get her notes. When she 

returned, the court said that it accepted Nazareta’s 

representation that the three jurors were Filipino and would, for 

the purposes of the hearing, find that Nazareta had made a 

prima facie showing. The court then invited the prosecutor to 

finish her presentation with regard to the three jurors.

The prosecutor gave more detailed explanations of her 

reasons for excusing each of the three jurors at issue. As to A., 

the prosecutor said that he had lived in the county for five years 

and in Alameda County before that. She said A. worked in San 

Francisco as an analyst and worked alone and not in a group of 

people. The prosecutor described A. as “very, very vague in his 

answers” and said she knew “very, very little about him.” She 

excused him because he was vague and did not have a group 

mentality.

Nazareta noted that he had not objected to the excusal of D. 

and L., but he argued that A. being the third Filipino juror 

showed a pattern and the prosecutor’s reasons for excusing A. 

were vague and did not point to specific answers that A. gave. 

Topete added that A. was forthcoming and not vague, and the 

facts that his “profession was data and he works alone” were not 

sufficient to rebut the prima facie showing.

The court accepted the prosecutor’s race-neutral reasons for 

challenging D. and L. The court then turned to consider whether 

the challenge to A. was the beginning of a pattern or established 
6

a pattern. The court commented that there was not very much 

information about him, in contrast to other jurors with whom the 

parties spent more time. The court noted that A. had no prior 

jury service, he had no family or friends in law enforcement, no 

one close to him was involved in a criminal matter, and he had 

two children who were 20 and 21 years old. The court said the 

parties and court knew his occupation and how long he had been 

doing it. The trial court mentioned that A. was happy to serve. 

The court then concluded, “On this record, based on the Court’s 

information, I believe that -- or the Court will accept the 

prosecutor’s representations that this juror was excluded for a 

race-neutral reason, probably won’t accept this reason any more 

for a challenge to a Filipino juror.” The court noted that the jury 

at that point included two jurors with last names that could have 

been Hispanic or Filipino. The court therefore denied the 

defendants’ objection to the excusal of A. However, the 

prosecutor later excused one of the additional jurors the court 

had named.

DISCUSSION

“ ‘Peremptory challenges may not be used to exclude 

prospective jurors based on group membership such as race or 

gender.’ [Citations.] ‘Excluding even a single prospective juror 

for reasons impermissible under Batson and Wheeler requires 

reversal.’ [Citation.] When a party opposing a peremptory strike 

makes a prima facie case that the strike was motivated by 

impermissible discrimination (step 1), the proponent of the strike 

must offer a nondiscriminatory reason for that challenge (step 2). 
7

[Citation.] The question then becomes (step 3) whether the 

opponent of the peremptory challenge has shown it ‘ “more likely 

than not that the challenge was improperly motivated.” ’ ” 

(People v. Baker (2021) 10 Cal.5th 1044, 1071 (Baker).) Because 

the trial court found Nazareta established a prima facie case of 

discrimination and the prosecutor stated her reasons for striking 

A., our review of the trial court’s ruling begins with the third 

Batson-Wheeler step. (People v. Smith (2018) 4 Cal.5th 1134, 

1147 [when trial court makes a prima facie finding of group bias 

and evaluates prosecutor’s reasons for challenge, “the adequacy 

of the prima facie showing becomes moot”].)

“ ‘The existence or nonexistence of purposeful racial 

discrimination is a question of fact.’ [Citation.] [¶] The answer to 

this factual question will ordinarily depend ‘on the subjective 

genuineness of the race-neutral reasons given for the peremptory 

challenge.’ [Citation.] A justification based on a 

mischaracterization of the record could reveal a discriminatory 

motive [citation], but might reflect a mere error of recollection 

[citations]. Likewise, a justification that is ‘implausible or 

fantastic . . . may (and probably will) be found to be pretext[ual],’ 

yet even a ‘silly or superstitious’ reason may be sincerely held. 

[Citations.] Of course, the factual basis for, and analytical 

strength of, a justification may shed significant light on the 

genuineness of that justification — and, thus, on the ultimate 

question of discrimination. [Citation.] But the force of the 

justification is significant only to the extent that it informs 

analysis of the ultimate question of discriminatory motivation.” 
8

(Baker, supra, 10 Cal.5th at pp. 1076–1077.) “A prosecutor’s 

positing of multiple reasons, some of which, upon examination, 

prove implausible or unsupported by the facts, can in some 

circumstances fatally impair the prosecutor’s credibility.” (People 

v. Smith, supra, 4 Cal.5th at pp. 1157–1158.) The credibility of a 

prosecutor’s race-neutral explanation can also be measured by 

the prosecutor’s demeanor and whether the prosecutor’s rationale 

is grounded in accepted trial strategy. (People v. Miles (2020)

9 Cal.5th 513, 539.)

Given the subjective nature of the third step BatsonWheeler inquiry, “ ‘[w]hen the trial court makes a sincere and 

reasoned effort to evaluate the [proffered] reasons, the reviewing 

court defers to its conclusions on appeal, and examines only 

whether substantial evidence supports them.’ ” (Baker, supra, 

10 Cal.5th at p. 1077.) But “[w]hen ‘the proffered reasons lack[ ] 

inherent plausibility or [are] contradicted by the record,’ the 

court’s failure to probe, or to explain, may eliminate the basis for 

deference.” (Id. at p. 1078.) “Deference may also be 

inappropriate when the court evinces a misunderstanding of the 

legal inquiry.” (Ibid.) Even when review is deferential, “that 

review remains a meaningful one.” (People v. Lenix (2008) 

44 Cal.4th 602, 621.) “When reasons are given for the exercise of 

challenges, an advocate must ‘stand or fall on the plausibility of 

the reasons he gives.’ [Citation.] The plausibility of those 

reasons will be reviewed, but not reweighed, in light of the entire 

record.” (Ibid.)
9

Nazareta argues the prosecution dismissed A. because he is 

Filipino.4 This case is somewhat unusual in that there is no 

evidence that A. is Filipino beyond Nazareta’s assertion to that 

effect. However, the record is nonetheless sufficient to support 

Nazareta’s Batson-Wheeler challenge. A party raising BastonWheeler need only make “ ‘as complete a record of the 

circumstances as is feasible’ ” and need not establish the race of a 

juror by direct question and answer. (People v. Motton (1985) 

39 Cal.3d 596, 603–604.) Additionally, a Batson-Wheeler

challenge to the dismissal of Hispanic jurors can be based on the 

last names of jurors where the last names indicate Spanish 

ancestry and there is no other information available. (People v. 

Ramirez (2022) 13 Cal.5th 997, 1087.) We apply the same 

principle to Nazareta’s allegation that D., L., and A. are Filipino. 

It makes no difference that the jurors’ last names could be 

consistent with either Hispanic or Filipino ancestry, as striking 

them for being Hispanic or Filipino would be equally 

impermissible.

I. Misunderstanding of legal inquiry

The prosecutor offered three reasons for striking A.: he 

worked alone, he was vague or not forthcoming in his answers, 

and the prosecutor knew little about him. Before examining each 

4 Nazareta also argues on appeal that the prosecution’s 

peremptory challenges to D. and L. were discriminatory. Because 

we agree with Nazareta as to A., we need not consider whether 

the challenges to D. and L. were also discriminatory. (Baker, 

supra, 10 Cal.5th at p. 1071 [“ ‘Excluding even a single 

prospective juror for reasons impermissible under Batson and 

Wheeler requires reversal’ ”].)
10

of these reasons and the trial court’s ruling, we note at the outset 

that the trial court misstated the nature of the legal inquiry. At 

the beginning of its ruling, the trial court said, “So to start with, I 

mean, looking at the first two jurors for which the defense claims 

that the pattern began, the Court cannot find that the pattern 

began with these jurors because there’s abundant reasons” to 

excuse them both. The trial court proceeded to explain why it 

believed the prosecutor had excused D. and L. for race-neutral 

reasons. The court concluded that it did not believe those two 

peremptory challenges “began a pattern.” The court then turned 

to “really consider whether or not the challenge to [A.] is the 

beginning of a pattern or establishes a pattern.”

Nazareta relied in part on the pattern of excluding D., L., 

and A. to make his prima facie showing. The trial court’s initial 

focus on whether the peremptory challenges to D. and L. 

demonstrated a pattern is therefore understandable. But the 

trial court’s continued focus on the existence of a pattern when it

proceeded to the third step of evaluating the prosecutor’s reasons 

for excusing A. was error. “[T]he ultimate issue to be addressed 

on a Wheeler-Batson motion ‘is not whether there is a pattern of 

systematic exclusion; rather, the issue is whether a particular 

prospective juror has been challenged because of group bias.’ ” 

(People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3, disapproved on 

other grounds by People v. Sanchez (2016) 63 Cal.4th 665, 686, 

fn. 13; accord, Johnson v. California (2005) 545 U.S. 162, 169, 

fn. 5 [Batson “declined to require proof of a pattern or practice” 

for a prima facie showing “because ‘ “[a] single invidiously 
11

discriminatory governmental act” is not “immunized by the 

absence of such discrimination in the making of other comparable 

decisions” ’ ”].) It may be difficult to make a prima facie showing 

of discrimination without evidence of a pattern. (Bell, at p. 598, 

fn. 3.) And because the ultimate burden of persuasion as to 

discrimination remains with the defendant (Johnson, at pp. 170–

171), evidence of a pattern could remain relevant at the third 

Batson-Wheeler step. But the question to be answered is still 

whether the prosecution impermissibly excused a juror based on 

membership in a cognizable group, which can be shown without 

proof of a pattern. The trial court’s framing of the issue as 

whether the prosecutor’s peremptory challenge to A. began or 

established a pattern of discrimination was therefore incorrect.

People v. Arellano (2016) 245 Cal.App.4th 1139

demonstrates that the trial court could have sustained Nazareta’s 

Batson-Wheeler objection to A. even without proof of a pattern. 

The trial court there found a prima facie showing of 

discrimination where the prosecutor excused all three AfricanAmerican female jurors, but the trial court believed the 

prosecutor’s race-neutral reasons and denied the defendant’s 

Batson-Wheeler motions. (Id. at pp. 1152–1156.) The Court of 

Appeal agreed that the dismissal of the first two jurors was for 

race-neutral reasons but nonetheless reversed because the record 

did not support the prosecutor’s stated rationale for dismissing 

the third juror. (Id. at pp. 1168–1169.) Likewise here, even after 

finding that the challenges to D. and L. were legitimate, the trial 

court could have granted Nazareta’s Batson-Wheeler motion if the 
12

dismissal of A. was not race-neutral (as we conclude, post, it was 

not). The trial court’s continued search for proof of a pattern 

demonstrates a misunderstanding of the legal inquiry, so

deference to its ruling is not appropriate. (Baker, supra, 

10 Cal.5th at p. 1078.)

With this in mind, we turn to the prosecutor’s reasons and 

the trial court’s ruling.

II. Working alone

The prosecutor’s first rationale, that A. worked alone, has a 

basis in accepted trial strategy. A juror accustomed to working 

alone could be less willing to work together with the other 

members of a jury. But, as Nazareta points out, the record does 

not support the prosecutor’s statement that A. worked alone. The 

prosecutor asked many other jurors about group work but never 

raised the topic with A. A.’s only statements during voir dire that 

could bear on this issue came in response to Topete’s question, 

“And I wrote down that you’re an IT analyst. Who are you 

analyzing? Other employees or data? Or what are you doing?” 

A. responded, “Both data and desktop support.” This response to 

Topete’s compound question indicates at most that he did not 

analyze employees. It does not establish that A. did not work 

with other employees. A.’s work analyzing data and desktop 

support indicates nothing about whether he worked alone or as 

part of a team, as data analysis and desktop support could both 

involve collaboration or frequent interactions with others.

Misstatements like this can impair a prosecutor’s 

credibility and support an inference of discrimination. (Baker, 
13

supra, 10 Cal.5th at p. 1076 [“A justification based on a 

mischaracterization of the record could reveal a discriminatory 

motive”]; People v. Smith, supra, 4 Cal.5th at pp. 1157–1158.) 

However, we will not draw such an inference here because the 

prosecutor was not the only one who made the mistake. Topete 

also noted that A. worked alone. If Nazareta’s co-defendant also 

believed that A. worked alone, it makes it more likely that A.’s 

answer was simply hard to follow in the thick of voir dire and the 

prosecutor did not invent the issue as a pretext. The prosecutor’s 

misstatement is therefore equivocal and not necessarily 

indicative of bias. The prosecutor’s failure to question A. about 

his work is likewise not necessarily indicative of bias, since the 

prosecutor could have omitted the questions about group work 

because she believed Topete had already covered the subject with 

his questioning. As our Supreme Court has repeatedly held, a 

mischaracterization of the record, even when the trial court did 

not identify it as such, can be a simple mistake and not an 

indication of a discriminatory motive. (Baker, at p. 1076 [citing 

cases].)

III. Vague or not forthcoming

The prosecutor’s second rationale, that A. was vague or not 

forthcoming, also lacks support in the transcript of voir dire. 

Most of the questions asked of A. were yes or no questions or 

called for similarly short responses. A.’s answers, unsurprisingly, 

were brief and to the point, consisting of short phrases or 

sentences without elaboration. Since neither the court nor any of 

the parties asked A. questions that called for more detail or 
14

pressed him to flesh out any of his answers, the brevity of A.’s 

answers does not mean he was vague or not forthcoming. We 

recognize that unlike the prosecutor’s statement that A. worked 

alone, her impression of A. as being not forthcoming could have 

been based on observations of A.’s demeanor, which would not be 

reflected in the record on appeal. Had the trial court credited 

such a reason, this might have been sufficient, even though the 

trial court did not explicitly remark on anything unusual in A.’s 

demeanor during its summary of A.’s responses. (People v. 

Reynoso (2003) 31 Cal.4th 903, 926.) However, the trial court did 

not rely on A. being vague or not forthcoming when it denied 

Nazareta’s motion, so this rationale is not sufficient to support 

the prosecutor’s peremptory challenge.

IV. Lack of information

The trial court credited the prosecutor’s third reason, that 

she knew little about A., and this reason finds more support in 

the record. We will assume for the sake of argument that this 

rationale has a basis in accepted trial strategy, although we have 

discovered only one case that mentions a party excusing a juror 

for this reason. (Unzueta v. Akopyan (2022) 85 Cal.App.5th 67, 

74 [party in civil case excused juror in part because he “ ‘was 

completely unknown to me compared to the other jurors’ ”].) This 

rationale nonetheless requires reversal.

The trial court, Topete, and Nazareta followed the same 

approach in questioning A. as they had for the other jurors, 

asking about his occupation, his spouse’s occupation, his 

children’s studies, prior jury service, close friends or family in law 
15

enforcement or involved in criminal matters, ability to follow the 

jury’s role, ability to apply the concepts of circumstantial 

evidence and aiding and abetting, and strong feelings about guns, 

the role of a jury, or a defendant’s right not to testify. The 

prosecutor likewise asked A. most of the same questions she did 

of the other jurors, concerning his length of residence in Contra 

Costa County, ability to follow the concepts of aiding and abetting 

and circumstantial evidence, and willingness to believe witnesses 

who might have a criminal history or use drugs, but not his group 

work. A.’s responses to these various questions did not raise any 

obvious concerns, so there was no apparent reason for anyone to 

follow up with him to obtain more detail. As a result, if A. 

provided less material from which the prosecutor could evaluate 

him, that was because the prosecutor did not ask for more 

information from him and had no reason to.

The prosecution’s decision to excuse A. for lack of 

information is therefore concerning. A prosecutor does not have 

the luxury of unlimited time to spend on each juror and must 

instead evaluate scores of jurors in a short period. But if the 

prosecutor wanted to learn more about A., she could have easily 

asked him more questions. Additional questioning would have 

been particularly appropriate given that the trial court opted not 

to use a jury questionnaire and instead gave the parties twice as 

much time to conduct voir dire as it normally would have. Given 

her failure to examine A. in more detail, the prosecutor’s claim 

that she excused A. because she knew little about him is hard to 

credit and supports Nazareta’s contention that she was acting 
16

based on a hidden bias. (Baker, supra, 10 Cal.5th at p. 1083 

[“ ‘[u]nder certain circumstances perfunctory voir dire can be 

indicative of hidden bias’ [citation], particularly when there is a 

dearth of questioning ‘on a subject a party asserts it is concerned 

about’ ”]; cf. id. at p. 1085 [lack of additional questioning not 

illuminating where potential jurors filled out lengthy 

questionnaire and each side had only a few minutes to question 

jurors individually].)

The trial court did not ask the prosecutor why she did not 

question A. further or point out the disconnect between her 

questioning and her claimed concern over a lack of information. 

This alone would be enough to eliminate the basis for deference 

to its ruling. (Baker, supra, 10 Cal.5th at p. 1078 [“When ‘the 

proffered reasons lack[ ] inherent plausibility or [are] 

contradicted by the record,’ the court’s failure to probe, or to 

explain, may eliminate the basis for deference”].) But the trial 

court’s expression of doubt about the prosecutor’s stated 

rationale, combined with its failure to probe the prosecutor’s 

explanation, undermines all confidence in the trial court’s ruling. 

After the trial court agreed with the prosecutor’s assessment that 

there was not much information about A., it went on to remark

that it “probably won’t accept this reason any more for a 

challenge to a Filipino juror.” Nazareta cogently points out that 

if the trial court was unwilling to accept the stated reason again, 

it calls into serious question why the court accepted it as genuine 

even as to A. Considering the trial court’s reservations, it is 
17

unclear why it did not ask further questions of the prosecutor and 

delve further into her rationale.

Finally and most significantly, the trial court’s statement 

about not accepting the prosecutor’s rationale for another Filipino 

juror tips the scales towards reversal when considered in light of 

its earlier comment that it was considering whether the 

peremptory challenge to A. began or established a pattern. 

Taken together, these comments indicate the trial court did not 

believe the prosecutor’s stated rationale but denied Nazareta’s 

Batson-Wheeler motion anyway because the challenges to D. and 

L. were race-neutral and the challenge to A. was insufficient on 

its own to demonstrate a pattern. This is improper. “Excluding 

by peremptory challenge even ‘a single juror on the basis of race 

or ethnicity is an error of constitutional magnitude.’ ” (People v. 

Gutierrez (2017) 2 Cal.5th 1150, 1172.) The trial court erred in 

holding Nazareta to a higher standard of needing to demonstrate 

a pattern of discrimination, and the trial court’s evident lack of 

belief in the prosecutor’s reason should have resulted in the 

granting of Nazareta’s Batson-Wheeler motion.5

DISPOSITION

The judgment is reversed.

BROWN, P. J.

5 In light of this conclusion, we need not consider 

Nazareta’s additional argument that a comparative analysis of A. 

with seated non-Filipino jurors supports his contention that the 

prosecutor acted discriminatorily.
18

WE CONCUR:

STREETER, J.

GOLDMAN, J.

People v. Nazareta (A162377)