Filed 4/4/22 (see attached dissent)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

SALVADOR SOLORIO SALINAS,

Defendant and Appellant.

 B307985

 (Los Angeles County

 Super. Ct.

No. TA148640)

APPEAL from an order of the Superior Court of Los 

Angeles County, Kelvin Filer, Judge. Reversed and remanded.

Tracy J. Dressner, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Dana Ali, Supervising Deputy 

Attorney General, Stacy S. Schwartz and Joseph P. Lee, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

At defendant and appellant Salvador Salinas’s 

(defendant’s) criminal trial, the prosecution used five of the eight 

peremptory challenges it exercised to remove Black women from

the jury panel—including a prospective juror who was a sales 

manager, a crime victim herself, the grandchild of a retired police 

officer, a friend or acquaintance of “a lot” of law enforcement 

officers, and a prior member of a criminal jury in another case 

that reached a verdict. The United States Supreme Court 

recognized in Batson v. Kentucky (1986) 476 U.S. 79 (Batson) that 

there can be no dispute peremptory challenges “permit[ ] ‘those to 

discriminate who are of a mind to discriminate’” (id. at 96), and 

the high court more recently re-emphasized that striking even a 

single prospective juror for a discriminatory purpose is 

constitutionally intolerable (Foster v. Chatman (2016) 578 U.S. 

488, 499 (Foster)). For reasons we shall detail, the record reveals 

the prosecution’s decision to bar the above-described Black 

woman from jury service is inconsistent with the guarantees of 

our federal and state constitutions.

I

The Los Angeles County District Attorney charged 

defendant with murder for killing a man having an affair with 

defendant’s wife. At trial, the prosecution presented evidence 

that defendant beat the victim with a metal pipe shortly after 

seeing the victim rendezvous with defendant’s wife in a motel 

room. The jury found defendant guilty of second degree murder 

(not first degree, as the prosecution argued), and the trial court 

sentenced defendant to 15 years to life in prison. Voir dire of the 

prospective trial jurors, which is our focus in this appeal and the 

procedural summary that immediately follows, proceeded over 
3

the course of the first two days of defendant’s trial in early 

February 2020.

The trial court conducted voir dire of the jury panel in 

groups of 21. The court itself initially solicited general 

background information (e.g., marital status, occupation, prior 

jury service) from the prospective jurors and questioned them

about whether anyone had negative experiences with law 

enforcement officers or had friends or family who worked in law 

enforcement. The court then permitted the attorneys to voir dire 

the group. After attorney voir dire and challenges for cause, the 

trial court invited the parties to exercise peremptory challenges 

until 10 of the original group of 21 had been dismissed. At that 

point, additional prospective jurors were called from the panel to 

again comprise a group of 21, and the newly-called prospective 

jurors were questioned in the same manner.

There were at least four Black women in the first group of 

21 prospective jurors: prospective juror number 3505 (Juror 

3505), prospective juror number 5542 (Juror 5542), prospective 

juror number 8832 (Juror 8832), and prospective juror number 

8061 (Juror 8061).

1

Juror 3505 was employed as a recruiting trainer in the 

financial services industry and married with two children. She 

previously served on a criminal jury, she had never been the 

victim of a crime, and her hobbies included golf and ministry 

work. When the trial court generally informed the prospective 

jurors that some evidence may be admitted at trial for a limited 

1 We will return to the point later, but we have only limited 

information concerning the race and gender composition of the 

jury panel as a whole because the parties and the trial court did 

not make a comprehensive record.
4

purpose, Juror 3505 asked whether that meant they were not 

supposed to use “reasonable deduction.” The court clarified that 

“reasonable deduction” and use of common sense was permitted, 

and Juror 3505 said she understood and decided to ask the 

question “[b]ecause I can think for myself.” When the court 

asked Juror 3505 if she could “commit[ ]” to following the court’s 

instructions, she responded, “I’ll attempt to.” Later, when the 

court questioned the jury about any negative experiences with 

law enforcement, Juror 3505 said she was given a traffic ticket

over 10 years earlier and fought the ticket in court. Juror 3505 

said she thought the officer who wrote the ticket lied under oath 

and the judge who decided the matter was unfair for believing 

the testimony of the officer instead of her. When asked whether 

this experience left her with any “ill feelings towards law 

enforcement in general,” Juror 3505 demurred, explaining she 

could be a fair and impartial juror in defendant’s case and 

clarifying she “just . . . d[id]n’t believe everything everyone says” 

as a result of the traffic ticket experience.2

Juror 5542 was a single college student who had never been 

the victim of a crime and never served on a jury. Her hobbies 

were shopping, watching television, and “going out.” In response 

to questions from the trial court, Juror 5542 said she was 

2 The trial court told Juror 3505 that she would be asked “to 

consider only the evidence that comes from this [witness] stand 

and follow only [the court’s] instructions on the law, not because 

they’re coming from [the court], but [because] that’s what the law 

is . . . .” The court asked Juror 3505 whether she thought she 

could do that, and when Juror 3505 said she believed she could, 

the trial judge agreed, saying, “I think you can. I believe we’re on 

the same page.”
5

studying to be a paralegal, wanted to go to law school, and hoped 

to be a criminal defense lawyer. The court then asked questions 

to verify Juror 5542 would not be biased against the prosecution 

because of her interest in doing defense work, and Juror 5542 

repeatedly affirmed she could be fair to both sides at trial.

Juror 8832 was an eighth grade teacher and married with 

two children. Her hobbies included reading and going to church. 

She had never served on a jury and, in response to a question 

from the court about whether she had been a victim or witness to 

a crime, she said she had because of a “crisis in Nigeria.” Juror 

8832 did not elaborate, but she did confirm the experience would 

not affect her ability to evaluate the evidence in defendant’s case.

Juror 8061 is the prospective juror we described at the 

outset of our opinion. She was a national sales manager for a 

credit card company and her hobbies included puzzles, shopping, 

and singing. She previously served on a jury that reached a 

verdict in a criminal case. She reported she was the victim of an 

assault in college (20 years earlier) and testified at her assailant’s 

trial; when asked by the court if the experience left her with any 

“ill feelings” toward defense attorneys, Juror 8061 said “none

whatsoever.” Regarding friends and family in law enforcement, 

Juror 8061 said her grandfather was “retired L.A.P.D.,” her best 

friend was a security guard who had applied to work as a deputy 

sheriff, and she had “a lot” of acquaintances who were police 

officers because she worked with them “as an auto broker.”

After the trial court completed its initial examination of the 

first group of prospective jurors, the attorneys for the defense

(defendant was tried with a co-defendant) began their voir dire. 

Following initial questioning about the doctrine of self-defense, 

the defense questioned individual prospective jurors who 
6

disclosed they had friends or family in law enforcement. Juror 

8061 (the sales manager) said she did not think she had any bias 

and did not regularly speak to the people she knew in law 

enforcement about their cases. Juror 8061 was also asked 

whether she had any bad feelings about her prior jury service and 

she said she had none at all. In addition, the defense asked Juror 

8061 whether she thought a defendant must have done 

something wrong by virtue of being in court facing a criminal 

charge; she answered “[n]o, not necessarily.”

When it came time for the prosecution’s voir dire, the 

prosecutor asked the prospective jurors to consider a hypothetical 

scenario that we will recount at length because the prosecutor

would later rely on colloquy concerning the hypothetical to excuse 

Juror 8061. The prosecutor said: “Now, let’s say you have a mom 

and you have a son. Okay. It’s a summer day. And the son is 

about five years old. And he tells his mom, hey, mom can we go 

swimming? And the swimming is in one of those kiddie pools you 

buy at Toys R Us. [¶] . . . [¶] The mom fills it up. Mom says, 

okay. Go get your swim trunks on, your goggles, get your 

floaties, come back outside. He runs in, gets dressed, comes back 

outside. And they’re about to walk outside, but the mom is, like, 

oh shoot. I forgot my cellphone. Wait right here. Don’t go in the

pool. Do not go in the pool. [¶] So she goes back. She gets her 

cellphone. She comes back. Her son is not standing there, but 

he’s standing about ten feet away. Okay. There’s little footprints 

on the ground that are wet and he’s soaking wet.”

The prosecution asked, “Just from those facts what is the 

most reasonable answer,” and first called on Juror 3505 to 

answer. Juror 3505 answered, “He got in the pool.” The 

prosecution then turned to another Black female prospective
7

juror, Juror 8832, and asked if she believed the same thing. She 

said yes.

After posing the question to two additional prospective 

jurors (who gave the same answer), the prosecution then asked 

another question of all the prospective jurors based on the same 

hypothetical: “Who here thinks it’s possible his neighbor, the 

kid’s neighbor, jumped over the fence, grabbed him, put him in 

the pool, dragged him, pulled him aside? Raise your hand if you 

think that’s a possibility.” At least seven prospective jurors 

raised their hand,3 including Juror 8061 and Juror 3505. The 

prosecution then asked, “now, based on the facts I gave you, just 

based on the facts, what is the reasonable answer of the 

[prospective jurors] who raised their hand?” Juror 3505 said, 

“Well, for sure he was probably wet from the pool” but added, 

“now the question becomes how did he become wet.” The 

prosecution responded: “Just on those facts alone, just on those 

facts alone the kid probably jumped in the pool himself, right? 

Because there wasn’t any fact that the guy jumped over the fence 

and then there wasn’t a factual scenario where an alien grabbed 

him, put him in the pool, right? We don’t believe that, right? [¶] 

So the reason I’m telling you this hypothetical is because 

anything is possible, but my job is to prove to you beyond a 

reasonable doubt. Not all doubt. A reasonable doubt. [¶] So 

everybody that raised your hand, will it change your answer 

when I say what is the reasonable answer here?”

3 The prosecution identified seven prospective jurors on the 

record by seat number. One of the prospective jurors that raised 

his hand was in seat 19 and was ultimately seated on the trial 

jury as juror number 3.
8

Juror 8061 then responded, asking the prosecutor to 

confirm he wanted to know what the reasonable answer was. 

When the prosecution affirmed that was indeed the question, 

Juror 8061 said, “The reasonable answer is that he got in the 

pool. I don’t know that for a fact. I’m assuming the sprinklers 

could have c[o]me on.” The prosecution responded, “Based on the 

factual stuff, I didn’t give you any of that stuff.” When Juror 

8061 replied she was thinking anything could have happened, the 

prosecution conceded, yes, anything could have happened, but 

asked Juror 8061 what the reasonable answer was. Juror 8061 

then repeated what she said earlier: the reasonable answer was 

that the boy got in the pool.

After further voir dire by the prosecution, including 

additional hypothetical scenarios involving marital infidelity and 

principles of aiding and abetting, the prosecution asked the 

prospective jurors to raise their hands if they promised to “follow 

the law and execute based on that” rather than letting sympathy 

or emotions influence their verdict. Believing that Juror 8832 

and another prospective juror in seat number nine had not raised 

their hands, the prosecution inquired further. The prosecution 

asked Juror 8832 if she would use emotions and sympathy and 

she responded, “I wouldn’t say emotion, sympathy.” The 

prosecution then called on the prospective juror in seat nine and 

s/he said, “You never know how the people inside the room [are]

going to react, too. So basically on that you have to.” The 

prosecution asked “other than that,” can you still follow the law 

and return a verdict regardless of how you feel about the case 

emotionally; the prospective juror in seat nine said yes.4

4 The prosecution asked this same question of three other

prospective jurors, including Juror 3505. All responded yes.
9

With attorney voir dire of the first group of prospective 

jurors complete, the trial court invited the parties to begin 

exercising peremptory challenges, starting with the prosecution.5

 

The prosecution first struck Juror 3505. After two additional 

peremptory strikes, including the prospective juror in seat nine, 

the prosecution’s next two peremptory strikes were used against 

Juror 5542 and Juror 8832.

When the prosecution asked the court to excuse Juror 8832, 

the defense made a Batson motion at sidebar.6

 The defense 

represented, without dispute, that three of the prosecution’s 

peremptory challenges had been exercised against Black women,

and the defense argued this pattern of strikes warranted

compelling the prosecution to state its reasons for excluding the 

Black women prospective jurors.

7

 The trial court agreed, 

explaining that just by the “sheer number” of strikes used against 

Black women it would “require the People to provide a race 

neutral reason for the use of those peremptories.” The 

prosecution then articulated a statement of reasons on the 

record.

5 Because the only challenges to peremptory strikes in this 

case were made by the defense, we focus our attention on the 

peremptory challenges used by the prosecution.

6 Such motions are often referred to as Batson/Wheeler

motions to account for our Supreme Court’s holding in People v. 

Wheeler (1978) 22 Cal.3d 258 (Wheeler) that, like Batson, 

prohibits discrimination on the basis of race in jury selection. For 

simplicity, we use “Batson motion” as shorthand.

7 The defense also represented, again without dispute, that

the prosecution’s two other peremptory challenges were exercised 

against Hispanic males.
10

As to Juror 3505 (the prosecution’s first strike), the 

prosecutor stated he believed she “asked a lot of questions that 

were basically contrary to what I believed or contrary to our 

positions.” The prosecutor additionally opined Juror 3505 was 

“aggressive” because “she said ‘I can think for myself’ especially 

when she was being questioned.” Commenting further, the 

prosecutor mentioned Juror 3505 had a negative experience with 

law enforcement and “became emotional” about the officer that 

she believed “lied against her.” The prosecutor also mentioned

“[o]ne of the other reasons that [he] did end up kicking her,” 

namely, his belief that Juror 3505 raised her hand and said 

“anything is possible” in response to his pool hypothetical.

As to Juror 5542 (the prosecutor’s fourth strike), the 

prosecutor referenced her desire to do criminal defense work and 

stated this indicated she would be biased toward defendant and 

unfavorable toward law enforcement and the prosecution.

Finally, as to Juror 8832, the prosecutor stated the reason 

he excused her was because she did not raise her hand when he 

sought a commitment that prospective jurors would not resort to 

sympathy or emotion in deciding the case. The prosecutor also

mentioned his perception of Juror 8832’s demeanor, stating she 

and the prospective juror in seat nine were sitting with their 

arms crossed looking at him in what he described as a “defensive 

posture.”

At the conclusion of the prosecutor’s statement of reasons, 

the trial court denied the Batson motion. The court stated: “All 

right. So [the prosecutor’s] recitation of the responses is 

accurate, and I will find the People have provided specific race 

neutral reasons for the peremptory challenges . . . .”
11

Jury selection continued thereafter, with the trial court 

calling several additional prospective jurors from the jury panel 

to again comprise a group of 21 and replace those that had been 

excused. The court proceeded in the same fashion by first 

questioning the newly called prospective jurors and then 

permitting attorney voir dire.

There was at least one additional Black woman among the 

10 additional prospective jurors called to join the new group of 

21: prospective juror number 5064 (Juror 5064). Because it will 

be pertinent to our discussion later in this opinion, we will also 

briefly recount the particulars of another prospective juror—

initially sitting in seat number 17 and ultimately seated on the 

trial jury—whose race is not revealed by the record.

Juror 5064 was a single woman employed by Coca-Cola 

whose hobbies included watching sports. She previously served 

on a criminal jury in a domestic violence case that did not reach a 

verdict, but she expressed no reservations about serving as a 

juror in defendant’s case as a result of her prior jury experience. 

When asked about prior negative experiences with law 

enforcement, Juror 5064 described an incident during her earlier 

service in the military when, while in uniform, she was held at 

gunpoint by White police officers at a gas station in the Riverside 

area (who were reported to have said “we don’t like your kind 

over here”). According to Juror 5064, the police permitted her to 

leave after she called her military commander and she later filed 

a complaint against the officers (she was unaware of whether or 

how the complaint was resolved). The trial court asked Juror 

5064 if she would be able to be fair to the parties in this case 

notwithstanding that experience and she said she said she would.
12

The juror in seat 17 was a married retiree with two 

children. He previously served twice on criminal juries in 

attempted murder cases and both juries reached verdicts (the 

juror revealed, before the court could stop him, that the verdicts 

were guilty verdicts). The juror in seat 17 also reported he had 

twice been the victim of a crime, once when someone tried to 

break into his house when he was out of state and another time 

when his truck was vandalized. When asked, he told the court 

there was nothing about either experience that would cause him 

to hold it against either the defense or the prosecution.

During attorney voir dire of the second group of 21

prospective jurors, the prosecutor returned to the pool

hypothetical he used with the first group. After confirming the 

new prospective jurors recalled the facts of the hypothetical, the 

prosecutor called on the juror in seat 17, apparently believing it 

looked like he (the juror) was about to say something. The juror 

said, “Well, if you want me to say something, I will. So you found 

the child wet. You sure it didn’t rain?” The prosecutor responded 

he “didn’t give you that fact,” and a longer exchange between the 

juror in seat 17 and the prosecutor ensued in which the juror 

twice said anything was possible but ultimately agreed the child 

probably jumped in the pool.8

8 This was the full exchange: “[Prosecutor]: I think—I didn’t 

give you that fact did I? Just checking. [¶] So no other possible 

answer? [¶] [Prospective Juror]: Anything is possible. That’s 

what you said. [¶] [Prosecutor]: No. I didn’t say that. Not on 

that. The reason why I said it is—anything is possible but with 

the facts that I gave you, the reasonable answer is what? [¶] 

[Prospective Juror]: Anything can happen. It’s possible. [¶] 

[Prosecutor]: No. No. In terms of the facts I gave you 

surrounding that particular case. The kid went in the pool, 
13

The prosecutor and the juror in seat 17 later had another 

exchange concerning the prosecutor’s voir dire about infidelity. 

The prosecutor asked whether anyone agreed or disagreed with 

the statement that a person who found out about infidelity could 

use physical force “regardless of the situation.” The juror in seat 

17 responded, “It depends.” Asked to elaborate, the juror 

mentioned sometimes people’s emotions “take over their mental 

state” and “that’s why people hurt people.” The prosecutor 

inquired whether that meant emotion was an excuse to use 

physical violence, and the juror responded, “[n]ot in general, but 

when you ask that it can happen, you know, they’re just human 

beings” before subsequently clarifying that he thought using 

physical force was not okay “[u]nder the law.”

Once attorney voir dire of the second group of prospective

jurors was complete, the trial court entertained challenges for 

cause. The prosecution expressed concern about Juror 5064 (the 

former military service member), believing her experience with 

the police at the gas station in Riverside would impact how she 

viewed law enforcement and “would be an issue especially in this 

case.” The trial court disagreed and declined to excuse Juror 

5064 stating, “I think she’s a strong juror. She said upfront she 

didn’t like the way she was treated. She reported it, dealt with 

it[,] but she also understands that that situation has nothing to 

do with the current case.”

Following challenges for cause, the parties again exercised

peremptory challenges. After first striking another prospective

juror, the prosecution used a peremptory challenge to excuse 

right? [¶] [Prospective Juror]: Yeah. He probably jump[ed] in 

the water.”
14

Juror 5064. Then, after asking the trial court for a momentary

pause in the proceedings, the prosecution used its next 

peremptory challenge to strike Juror 8061, the sales manager

with friends and family in law enforcement who was part of the 

initial group of prospective jurors called. This triggered a second 

Batson motion from the defense.

At sidebar, the defense emphasized the prosecution struck 

two more Black female prospective jurors since the prior Batson

motion. The defense did not vigorously contest the prosecution’s 

strike of Juror 5064, stating the prosecution may have been 

concerned about her experience with the police in Riverside even 

though it seemed she could be fair. But the defense did 

strenuously object to the challenge to Juror 8061. The trial court 

required the prosecutor to state the reason why he struck that 

prospective juror.

This, verbatim, is the entirety of the prosecutor’s 

explanation: “The reason I dismissed her, Your Honor, was in 

regards to her responses when I gave the hypothetical in regards 

to the reasonable versus possible. She did give pushback on what 

she stated was possible. And I tried to explain the reasonable 

issue. She basically tried to explain it away saying anything is 

possible. And that was one of the reasons why. [¶] This case—

obviously we’re dealing with reasonable as opposed to possible, 

and a juror who thinks of other possible answers away from the 

facts I think would present an issue. And that was the reason 

why I kicked her.”

Without inviting a reply from the defense, the trial court 

ruled as follows: “All right. I mean, I didn’t keep those exact 

notes, but I do remember her response along those lines. So I’ll 

indicate that the People have provided a race neutral reason for 
15

excusing that particular juror and deny the Batson . . . motion at 

this time.” The court noted for the record that at the time of the 

prosecutor’s strike of Juror 8061 there were “two Black females 

and one other Black male at least who are in the [jury] box . . . .” 

The court did not, however, describe the race or gender 

composition of the jury panel as a whole, nor did the court 

identify which of the prospective jurors that remained in the 

“box” were Black such that we might determine whether any or 

all were ultimately seated on the jury.

Although the trial court had already made its ruling on the 

Batson motion, the defense interjected with further argument 

anyway. The defense emphasized there were other prospective 

jurors who responded similarly to the prosecution’s pool 

hypothetical but were not stricken by the prosecution. The 

defense further argued Juror 8061 had not in fact said she “was 

only going to look towards the possible,” and the defense 

explained the hypothetical itself “opened up for [the prospective 

jurors] to think of the possible.” With these points made, the 

defense said “submitted” and the trial court’s only response was 

to say “[a]ll right.”

Once Batson proceedings at sidebar concluded, the trial 

court excused Juror 8061 and proceeded with jury selection. The 

prosecution exercised no further peremptory challenges (twice 

accepting the panel as constituted) and the defense exercised 

three. After voir dire of several additional prospective jurors 

called by the trial court from the jury panel, and excusal of one 

for cause, the parties then stipulated to accept the jury as then 

constituted, including designating three alternate jurors. As 

already mentioned in passing, the aforementioned juror in seat 
16

17 (the married retiree) was seated on the trial jury as juror 

number 7.

II

The Equal Protection Clause of the United States 

Constitution and the California Constitution’s guarantee of a jury 

drawn from a representative cross-section of the community 

prohibit parties from using peremptory challenges to strike a 

prospective juror because of his or her race. (Batson, supra, 476 

U.S. at 89; People v. O’Malley (2016) 62 Cal.4th 944, 974

(O’Malley).) Ordinarily, courts determine whether these 

constitutional rights have been violated by employing a threestage burden shifting procedure: the moving party must first 

establish a prima facie case of discrimination by showing the 

totality of the relevant facts gives rise to an inference of 

discriminatory purpose; the burden then shifts to the party using 

the peremptory challenge to come forward with a race-neutral 

explanation for striking the prospective juror(s) in question; and 

a court then considers whether the prosecution’s stated

justification is credible and whether, in light of all relevant 

circumstances, the defendant has shown purposeful race

discrimination. (People v. McDaniel (2021) 12 Cal.5th 97, 122

(McDaniel); O’Malley, supra, at 974.) In an appeal like this, 

where the trial court required the prosecution to state its reasons 

for exercising peremptory challenges, we skip the first two steps 

and move straight to considering the credibility of the 

prosecution’s stated reasons and whether the record as a whole 

reveals a discriminatory motive for removing even a single 

prospective juror. (McDaniel, supra, at 122; People v. Baker

(2021) 10 Cal.5th 1044, 1076 [“Because the trial court found a 
17

prima facie case of racial discrimination and the prosecutor 

stated a reason for the strikes at issue, the question before us is 

whether defendant has shown it ‘“more likely than not”’ that at 

least one of the ‘“challenge[s] was improperly motivated”’”] 

(Baker); see also Foster, supra, 578 U.S. at 499.)

As we go on to explain, the record does reveal such an 

improper motivation for the strike of Juror 8061. Ordinarily, we 

accord due deference to a trial court’s denial of a Batson motion, 

but that deference is not warranted here because the trial court 

did not make a reasoned effort (we have no doubts about the 

court’s sincerity) to evaluate the nondiscriminatory justification

the prosecutor offered for striking Juror 8061. (McDaniel, supra, 

12 Cal.5th at 122.) So we undertake our own review of the record

and see evidence indicating Juror 8061 was more likely than not 

excused at least because of her race (and maybe even because of 

her race and gender, given the facts of defendant’s offense): the 

“sheer number,” as the trial court itself put it, of peremptory 

challenges directed at Black women prospective jurors; Juror 

8061’s background that by all appearances would make her an 

ideal juror for the prosecution; the obviously pretextual reason

given by the prosecution for excusing Juror 8061; and the 

prosecutor’s on-the-record statement that another Black female

prospective juror was “aggressive” because she said she could

think for herself. That between one and three Black people may

have remained on the jury after the prosecution withstood the 

two Batson motions does not dispel the conclusion we draw; the 

United States and California constitutions prohibit not only 

efforts to exclude one race entirely but also subtler yet

discernable efforts to obtain a racially composed jury that is 
18

better to an attorney’s liking. (See, e.g., People v. Snow (1987) 44 

Cal.3d 216, 225.)

A

At the third stage of Batson review, “courts look to all 

relevant circumstances bearing on the issue of discrimination. 

[Citation.] Relevant circumstances may include the race of the 

defendant, the ultimate racial composition of the jury, the 

pattern of strikes, and the extent or pattern of questioning by the 

prosecutor during voir dire. [Citations.] A court may also 

consider the fact that the prosecutor impermissibly struck other 

jurors ‘for the bearing it might have upon the strike’ of the 

challenged juror. [Citation.] The high court has also held that 

comparative juror analysis may be probative of purposeful 

discrimination at Batson’s third stage. [Citation.]” (McDaniel, 

supra, 12 Cal.5th at 122; see also Baker, supra, 10 Cal.5th at 

1080 [the race of the defendant or victim and a challenged

prospective juror need not be identical; “a litigant may raise a 

Batson/Wheeler objection regardless of the race of the defendant 

or the victim”]; People v. Smith (2018) 4 Cal.5th 1134, 1148 

[“‘[E]vidence of comparative juror analysis must be 

considered . . . even for the first time on appeal if relied upon by 

the defendant [if] the record is adequate to permit the urged 

comparisons’”].)

Our ability to undertake this third stage review is made 

more difficult because the parties and the trial court did not 

make a robust record when the Batson issues were raised. Our 

Supreme Court has emphasized that making an adequate record 

may be “onerous,” but “the obligation to avoid discrimination in 

jury selection is a pivotal one” and “[i]t is the duty of courts and 
19

counsel to ensure the record is both accurate and adequately 

developed.” (Baker, supra, 10 Cal.5th at 1080.) We nonetheless 

do not have a record of the overall racial composition of either the 

jury panel or the trial jury that was seated, nor do we know the 

race of prospective jurors who were not individually discussed 

during Batson proceedings at sidebar. That is unfortunate. But 

the deficiencies in the record do not make our task impossible. 

As we shall explain, even with the information that is lacking, we 

still see good evidence establishing it is more likely than not that 

Juror 8061 was stricken because of her race.

In undertaking that evidentiary review, the ordinary 

deference given to a trial court’s ruling is unwarranted here. 

(See, e.g., McDaniel, supra, 12 Cal.5th at 122 [“We defer to a trial 

court’s ruling only if the court has made a ‘“sincere and reasoned 

effort to evaluate the nondiscriminatory justifications offered”’ by 

the prosecutor”].) That is so for several reasons.

First, at the time the defense objected to the strike of Juror 

8061 (which came quite some time after the key moments when

she was the focus of individual voir dire), the trial court 

acknowledged on the record that it “didn’t keep those exact notes” 

and mustered a recollection of her responses as recounted by the 

prosecution as being only “along those lines.” The absence of a 

precise recollection that both of these comments reveal is reason 

not to accord ordinary deference—particularly when, as we will 

explain, the trial transcript demonstrates the prosecution’s 

recollection of Juror 8061’s responses was inaccurate.

Second, the trial court gave the defense no opportunity to 

respond to the prosecution’s proffered nondiscriminatory reason 

for striking Juror 8061 before making its ruling. Then, when the 

defense interjected with argument anyway to point out (correctly, 
20

as we will explain) that other prospective jurors responded to the 

prosecution’s pool hypothetical in a similar manner but were not 

stricken, the trial court undertook no follow up whatsoever. That 

again is reason not to defer. (See, e.g., McDaniel, supra, 12 

Cal.5th at 123 [“In Gutierrez, we distinguished ‘neutral reasons 

for a challenge [that] are sufficiently self-evident, if honestly 

held, such that they require little additional explanation’ from 

situations where ‘it is not self-evident why an advocate would 

harbor a concern.’ ([People v. Gutierrez (2017) 2 Cal.5th 1150,

1171 (Gutierrez)].) In the latter instances, particularly where ‘an 

advocate uses a considerable number of challenges to exclude a 

large proportion of members of a cognizable group,’ the court 

must ‘clarif[y] why it accepted the . . . reason as an honest one.’ 

(Ibid.)],” cleaned up;9 People v. Hardy (2018) 5 Cal.5th 56, 76-77

9 Justice Kim’s dissenting opinion cites People v. Miles (2020) 

9 Cal.5th 513, 542 (Miles) to claim a cursory finding by a trial 

court will suffice unless the race-neutral reason the prosecutor 

offers is “inherently implausible.” Miles cites Gutierrez for that 

proposition, and Gutierrez in turn cites People v. Silva (2001) 25 

Cal.4th 345 (Silva). (Miles, supra, at 539; Gutierrez, supra, 2 

Cal.5th at 1171; Silva, supra, at 386.) The better reading of Silva

and Gutierrez, however, is that a trial court is excused from 

making specific findings or questioning an attorney making a 

peremptory challenge when the attorney’s reason is supported by 

the record and inherently plausible—not that specific findings 

are necessary only when the proffered reason is inherently 

implausible. (Silva, supra, at 386 [“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”]; Gutierrez, supra, at 1171 [“Yet when it is not 

self-evident why an advocate would harbor a concern, the 

question of whether a neutral explanation is genuine and made 

in good faith becomes more pressing. That is particularly so 
21

(Hardy); see also People v. Lenix (2008) 44 Cal.4th 602, 624

[“[C]omparative juror evidence is most effectively considered in 

the trial court where the defendant can make an inclusive record, 

where the prosecutor can respond to the alleged similarities, and 

where the trial court can evaluate those arguments based on 

what it has seen and heard”].)

Third and finally, the on-the-record ruling the trial court 

made after the prosecution stated its ostensible reason for 

striking Juror 8061 reveals a misapprehension of the governing 

legal framework. (Baker, supra, 10 Cal.5th at 1078 [“Deference 

may also be inappropriate when the court evinces a 

misunderstanding of the legal inquiry”].) When the prosecutor 

stated he excused Juror 8061 solely because of her response to his 

pool hypothetical, the trial court said, in pertinent part, “I do 

remember her response along those lines. So I’ll indicate that the 

people have provided a race neutral reason for excusing that 

particular juror and deny the Batson . . . motion at this time.” 

That, however, is not an evaluation of the genuineness of the 

prosecutor’s reason for striking Juror 8061, which is the ultimate 

touchstone of a Batson inquiry.10 (Id. at 1076 [question of 

when, as here, an advocate uses a considerable number of 

challenges to exclude a large proportion of members of a 

cognizable group”].)

As we shall explain, the prosecutor’s reason in this case 

does not even reach the plausible threshold; the idea that Juror 

8061’s response to the esoterically framed pool hypothetical could

further be deemed an inherently plausible reason for excluding 

her from jury service beggars belief.

10 The trial court similarly ruled on the first Batson motion 

(“So [the prosecutor’s] recitation of the responses is accurate, and 

I will find the People have provided specific race neutral reasons 
22

whether discrimination has been shown ordinarily depends on 

the “‘subjective genuineness’” of race-neutral reasons]; Hardy, 

supra, 5 Cal.5th at 76 [“‘At the third step of the Batson/Wheeler

analysis, the trial court evaluates the credibility of the 

prosecutor’s neutral explanation’”].) It is instead merely an 

affirmation (albeit a mistaken one) that the prosecutor 

remembered and articulated what Juror 8061 said during voir 

dire. But Batson proceedings are neither memory competitions 

nor assessments of note-taking prowess. So far as the record 

reveals, the trial court held the prosecution to a far lower burden 

than the law requires (mere recollection, not genuine motivation), 

and this is a further reason why commonly warranted deference 

is inappropriate and we instead rely on our own independent 

review of the record. (Gutierrez, supra, 2 Cal.5th at 1159; cf. 

People v. Battle (2021) 11 Cal.5th 749, 772 [undertaking de novo 

review where it was unclear from the record whether the trial 

court applied the appropriate legal standard].)

B

One indisputable fact is immediately apparent from this

record: the prosecution used a sizeable number of its peremptory 

challenges to remove Black women from the jury panel. Of the 

eight peremptory challenges exercised by the prosecution, five (or 

62.5 percent) were used to strike Juror 3505, Juror 5542, Juror 

8832, Juror 5064, and Juror 8061. This percentage does not 

alone make out a Batson violation, of course, because there could 

for the peremptory challenges . . . .”), and the similar rulings 

illustrate there is a legal problem, not simply an unartfully 

articulated rationale. 
23

be legitimate nondiscriminatory reasons for the strikes and the 

record does not disclose the overall racial composition of the jury 

panel.11 At the same time, however, this is an easily seen pattern 

that is explainable by reliance on race (and gender) conscious 

jury selection, and the evidentiary value of the sizeable number 

of strikes remains relevant at Batson’s third stage. (Miller-El v. 

Cockrell (2003) 537 U.S. 322, 340; McDaniel, supra, 12 Cal.5th at 

122). Put more succinctly, the relatively high number of strikes 

used against a protected group like the one here means we should 

be especially attuned to the reasons the prosecution gave for 

peremptory challenges that fell so heavily against Black women.

The law governing evaluation of a prosecutor’s proffered 

reasons for exercising a peremptory challenge is straightforward. 

“[W]hen illegitimate grounds like race are in issue, a prosecutor 

simply has got to state his reasons as best he can and stand or 

fall on the plausibility of the reasons he gives. A Batson

challenge does not call for a mere exercise in thinking up any 

rational basis.” (Miller-El v. Dretke (2005) 545 U.S. 231, 252 

11 In People v. Rhoades (2019) 8 Cal.5th 393, 429 (Rhoades), 

our Supreme Court did not conclude the prosecution’s use of four 

out of eight peremptory challenges against Black women gave

rise to an inference of discrimination when considering the 

“totality of the circumstances”—which in that case included 

obvious race-neutral reasons for the prosecution’s peremptory 

challenges (strong views against the imposition of the death 

penalty). (Id. at 424, 429-432.) Unlike Rhoades, the prosecution 

here used over half of its peremptory challenges against Black 

women and the circumstances are quite different: there are no 

race-neutral reasons, obvious or otherwise, that would explain 

the prosecution’s strike of Juror 8061.
24

(Miller-El II); accord, Miles, supra, 9 Cal.5th at 542; Gutierrez, 

supra, 2 Cal.5th at 1170.)

Here, the prosecutor expressed no concerns about Juror 

8061, e.g., demeanor, that cannot be gleaned from a review of the 

trial transcript. Rather, the prosecutor articulated only one 

reason for excluding her that we have already quoted in full: 

Juror 8061’s reaction to his pool hypothetical. The prosecutor 

said Juror 8061 gave “pushback on what she stated was possible,” 

and when he “tried to explain the reasonable issue” she “basically 

tried to explain it away saying anything is possible.”

The prosecutor’s recollection of Juror 8061’s response to the 

hypothetical, however, is not accurate, and the inaccuracy is all 

the more striking because the prosecutor asked the court for a 

pause in the proceedings that gave him time to reflect before 

peremptorily challenging Juror 8061. To review, this is what 

happened. Juror 8061 asked the prosecutor if he wanted to know 

what was the reasonable conclusion to draw from the 

hypothetical, he said he did, and the very first words out of her 

mouth were precisely the answer the prosecutor claimed he was 

hoping to hear: Juror 8061 said, “The reasonable answer is that 

he got in the pool.”12 Juror 8061 then added that she did not 

12 Justice Kim states Juror 8061 agreed the reasonable 

answer was that the child got in the pool only “after a back-andforth with the prosecutor” and Justice Kim similarly refers to 

Juror 8061’s “ultimate” agreement with the prosecutor on the 

reasonable answer. These statements give the impression that 

Juror 8061’s agreement about the reasonable answer was 

somehow begrudging. We have reproduced what the trial 

transcript reflects, and it is inconsistent with Justice Kim’s 

characterization.
25

know that “for a fact” because the sprinklers could have come on, 

but that observation (distinguishing the reasonable from the 

possible) was consistent with how the prosecutor framed the 

hypothetical in the first place: he told the prospective jurors that 

“anything [wa]s possible” but his job was to prove it to the jury 

beyond a reasonable doubt, not all doubt. Notwithstanding his

own framing, however, the prosecutor responded to Juror 8061’s

qualification of her answer by saying he “didn’t give [her] any of 

that stuff,” by repeating (curiously enough) that “[a]nything could 

have happened,” and by again asking what the “reasonable 

answer” was. Juror 8061 then repeated without qualification 

what she first said: the child got in the pool.

The prosecutor’s claim that this exchange (in which Juror 

8061 gave him the answer he wanted and acknowledged the same 

qualification he already acknowledged) reflects “pushback” by 

Juror 8061 does not square with the record. It instead reads as 

reaching—i.e., as the prosecutor’s belief Juror 8061 said 

something different than she did because the prosecutor did not 

want her on the jury—and it stands as significant evidence of 

discriminatory intent. (See, e.g., Silva, supra, 25 Cal.4th at 385 

[“Although an isolated mistake or misstatement that the trial 

court recognizes as such is generally insufficient to demonstrate 

discriminatory intent [citation], it is another matter altogether 

when, as here, the record of voir dire provides no support for the 

prosecutor’s stated reasons for exercising a peremptory challenge 

and the trial court has failed to probe the issue [citations]”].)

The pretextual quality of the prosecutor’s stated reason for 

striking Juror 8061 becomes even more obvious when we look to 

the voir dire of two prospective jurors who the prosecutor did not

peremptorily challenge and who were ultimately seated on the 
26

jury: the juror in seat 19 among the first group of prospective 

jurors examined and the juror in seat 17 among the second group. 

When the prosecutor first asked for a show of hands for any 

prospective juror who believed it was possible that the 

hypothetical child’s neighbor jumped over the fence and dragged 

the child in the pool, the juror in seat 19 was among the 

prospective jurors who raised their hands. But the prosecutor did 

not ask that juror any follow up questions about the hypothetical, 

much less object to that juror serving on the trial jury. Later, 

when the prosecutor returned to the pool hypothetical with the 

second group of prospective jurors, the juror in seat 17 engaged in 

what is fairly described as pushback against the prosecutor’s 

view of the hypothetical—certainly far more than Juror 8061 

did.13 Yet the prosecution did not peremptorily challenge the 

juror in seat 17 either, and he too was seated on the trial jury.

Because the trial court and the parties did not make a 

record of the race of prospective jurors who reacted to the pool 

hypothetical (despite a defense objection on this specific ground), 

we do not know the race of the jurors in seats 17 or 19. This 

limits to a degree the strength of the inference we can draw from 

a comparison with Juror 8061, but it does nothing to undermine 

the comparative value for the key purpose for which we make the 

comparison, namely, to show that the prosecutor’s reason for 

excusing Juror 8061 was obviously pretextual. If the prosecutor 

were so concerned with Juror 8061’s response to the hypothetical 

that it was the sole reason he struck her, the prosecutor should 

have been even more concerned about the juror in seat 17 making 

13 The juror in seat 17 also expressed some ambivalence about 

the use of physical force by people who learn of infidelity.
27

it on the jury and the prosecutor would have at least questioned

the juror in seat 19 about the hypothetical before permitting him 

to be seated as a trial juror. (See, e.g., Miller-El II, supra, 545 

U.S. at 244 [“In light of [the prospective juror’s] outspoken 

support for the death penalty, we expect the prosecutor would 

have cleared up any misunderstanding by asking further 

questions before getting to the point of exercising a strike”].) The 

prosecutor, of course, did neither, and we draw the natural 

conclusion: the reason given for excusing Juror 8061 was mere 

makeweight.

At this point in our analysis, we accordingly have the 

following scenario: the prosecution struck five Black women from 

the jury panel and the prosecution’s only stated reason for 

striking one of the women, Juror 8061, does not hold up. We now 

add a further point looking at the matter from the opposite 

perspective: the facts in the record that suggest not only is there 

no valid reason explaining the prosecution’s strike of Juror 8061, 

there are several reasons why she “should have been an ideal 

juror in the eyes of a prosecutor . . . .” (Miller-El II, supra, 545 

U.S. at 247.) Juror 8061 had no prior negative experiences with 

law enforcement and she had family, a best friend, and “a lot” of 

acquaintances who worked in law enforcement. (See, e.g., People 

v. Chism (2014) 58 Cal.4th 1266, 1321 [prospective juror’s strong 

ties to law enforcement suggested he would be a favorable juror 

for the prosecution].) She also had been a crime victim herself, 

she had managerial experience at work, and she had previously 

served on a criminal jury that reached a verdict.14 With limited 

14 We, of course, cannot be certain what the verdict was, but 

her prior jury service was at least an indication that the 

prosecution should be relatively less concerned about a hung jury 
28

time for voir dire, parties may sometimes feel compelled to rely 

on legally permissible generalizations even though there is a risk 

they might not hold in any individual case; from that perspective, 

it does not get much better for the prosecution than a prospective 

juror like Juror 8061. Yet the prosecution still excluded her.

What we have already said is enough, but in assessing the 

existence of purposeful discrimination against Juror 8061 we also 

find some relevance in the prosecutor’s reference to Juror 3505 as 

“aggressive” when stating the reasons why he challenged her. 

(Batson, supra, 476 U.S. at 97 [“[T]he prosecutor’s questions and 

statements during voir dire examination and in exercising his 

challenges may support or refute an inference of discriminatory 

purpose”]; see also McDaniel, supra, 12 Cal.5th at 122 [courts 

may consider a prosecutor’s strike of other prospective jurors for 

the bearing it might have on the strike of the challenged 

prospective juror].) We do not believe use of the word 

“aggressive” should always or even frequently be understood to 

be a stereotype-laden term; there are surely some number of 

Black women in this state who could be fairly described, without 

suspicion (or negative connotation), as aggressive based on their 

behavior. Prosecutors should not feel as if they must adhere to 

an unwritten speech code when explaining the reasons for their 

peremptory challenges. In other words, context matters. Here, 

however, the context for the prosecutor’s remark does arouse

suspicion because the record indicates the prosecutor labelled

Juror 3505 aggressive merely for saying, in response to a 

question from the court (not the prosecutor himself), that she 

than it would be for a prospective juror who had never before 

served on a criminal jury.
29

could think for herself. If professing an ability to think for one’s 

self is enough to be dubbed “aggressive,” we think there is likely

a problem, albeit one that lies with the person hearing the 

comment, not the one making it.

Considering the totality of what we have discussed—

including pattern, pretext, and prosecution-friendly 

background—we are convinced Juror 8061’s exclusion from jury 

service is more likely than not attributable to unconstitutional 

discrimination.15 In reaching that conclusion, we have given due 

consideration to the trial court’s statement that there were still 

three Black people “in the box” at the time of the prosecutor’s 

strike of Juror 8061. That not all Black prospective jurors were 

stricken, however, is not dispositive. (McDaniel, supra, 12 

Cal.5th at 122; People v. Arellano (2016) 245 Cal.App.4th 1139, 

1168 [reversing for Batson error even where the record 

“implie[d]” two Black prospective jurors were ultimately seated 

on the jury].) A prosecutor’s acceptance of a jury with at least 

some Black members can sometimes dispel the existence of a 

15 The dissent spends noticeably little time addressing

whether the record shows, more likely than not, that race 

motivated the peremptory challenge to Juror 8061. Instead, it 

focuses on our conclusion that the trial court did not make a 

reasoned effort to evaluate the genuineness of the prosecution’s 

reason for striking Juror 8061. Even taking the dissent on its

own narrow terms, the conclusion it reaches is belied by its own 

analysis: by acknowledging that she relies on an “implied

finding” (post, page 5, italics added) that the prosecutor was 

credible, Justice Kim concedes the trial court’s ruling does not do 

what our Supreme Court says it must to warrant deference in a 

case like this, i.e., evaluate the subjective genuineness of the 

prosecutor’s reason.
30

discriminatory motive, but in this case such acceptance is equally 

consistent with a judgment by the prosecution that it could afford 

to press no further with additional strikes of Black prospective 

jurors—lest it become objectively undeniable that purposeful 

discrimination was occurring. We accordingly believe the 

prosecution’s possible acceptance of some Black jurors in this case 

is not especially probative. The Batson framework is designed to 

ferret out purposeful discrimination, which is often difficult to 

prove (see, e.g., People v. Bryant (2019) 40 Cal.App.5th 525, 544 

(conc. opn. of Humes, J.)), and the prosecution’s strike of Juror 

8061 is simply inexplicable on grounds other than her 

membership in a legally protected category.

C

In holding the prosecution’s strike of Juror 8061 violated 

Batson and Wheeler and their progeny, we of course do not 

thereby brand the trial prosecutor an evil person. Some bias can 

be implicit. Discrimination can arise from a mistaken hope for a 

perceived competitive advantage rather than Jim Crow racial 

animus. But race should never motivate excusing a prospective 

juror from jury service. The constitutional rights that make up a 

significant part of the fabric of our democracy simply will not 

abide it. (Smith v. Texas (1940) 311 U.S. 128, 130 [“For racial 

discrimination to result in the exclusion from jury service of 

otherwise qualified groups not only violates our Constitution and 

the laws enacted under it but is at war with our basic concepts of 

a democratic society and a representative government”], fn. 

omitted.) The remedy for the violation of such rights is reversal 

without any need to show prejudice, followed by the opportunity 

for retrial before an appropriately selected impartial jury. 
31

(Rivera v. Illinois (2009) 556 U.S. 148, 161; Silva, supra, 25 

Cal.4th at 386; Wheeler, supra, 22 Cal.3d at 283; People v. 

Cisneros (2015) 234 Cal.App.4th 111, 120.)

DISPOSITION

The judgment is reversed and the matter is remanded for 

retrial, assuming the People so elect.

CERTIFIED FOR PUBLICATION

BAKER, J.

I concur:

RUBIN, P. J.
People v. Salvador S. Salinas

B307985

KIM, J., Dissenting

I respectfully dissent. The trial court presided over the 

jury selection process for two days, during which it denied an 

initial Batson/Wheeler1 motion based on the prosecutor’s 

peremptory challenges to three Black female jurors. Later in the 

proceedings, defendant made a second Batson/Wheeler motion 

challenging the excusal of another Black woman, Juror No. 8061. 

The court denied that motion, finding that “the [prosecutor]

provided a race[-]neutral reason for excusing that particular juror 

. . . .” The majority reverses the judgment by independently 

reviewing the record to conclude that the prosecutor was not 

credible when he provided a race-neutral explanation for his use

of a peremptory strike to excuse Juror No. 8061 and thereby 

violated Batson/Wheeler and their progeny. In my view, the 

record does not support the majority’s conclusion that the court 

failed to make a “‘“sincere and reasoned effort to evaluate the 

nondiscriminatory justifications offered”’ by the prosecutor” such 

that an independent credibility finding is appropriate. (People v. 

McDaniel (2021) 12 Cal.5th 97, 122.)

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

v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
2

According to the majority, “[t]he absence of a precise 

recollection [revealed by the trial court’s comments] is reason not 

to accord ordinary deference” to the court’s credibility finding. 

The majority views the record of the colloquy between Juror No. 

8061 and the prosecutor as inconsistent with the court’s stated 

recollection that the juror’s response to the swimming pool 

hypothetical was “along [the] lines” recited by the prosecutor. 

But that is not how I read the record.

The colloquy with Juror No. 8061 began with her seeking 

clarification of the question the prosecutor wanted answered 

concerning the swimming pool hypothetical. She asked, “What’s 

the reasonable answer?” In response, the prosecutor repeated, 

“What’s the reasonable answer?” The juror then replied, “The 

reasonable answer is that [the boy] got in the pool.” But she 

immediately qualified her response by adding that she did not 

“know that for a fact” and included an assumption, not stated in 

the hypothetical, that “the sprinklers could have c[o]me on.”

Juror No. 8061’s response prompted the prosecutor to 

admonish her to confine her answer to the facts of the 

hypothetical. He then asked the juror, ““[Y]ou think the 

sprinklers—” but she interrupted by volunteering that “anything 

could have happened.” It was only after the prosecutor again 

asked the juror for the reasonable answer under the facts of the 

hypothetical that she responded, “[The boy] got in the pool.”

During the second Batson/Wheeler motion, the prosecutor 

explained, “The reason I dismissed [Juror No. 8061] . . . was in 

regards to her responses when I gave the [swimming pool] 

hypothetical in regards to the reasonable versus possible. She 

did give pushback on what she stated was possible. And I tried to 

explain the reasonable issue. She basically tried to explain it 
3

away saying anything is possible. And that was one of the 

reasons why. [¶] This case—obviously we’re dealing with 

reasonable as opposed to possible, and a juror who thinks of other 

possible answers away from the facts I think would present an 

issue. And that was the reason why I kicked her.” In response, 

the trial court said, “I mean, I didn’t keep those exact notes. But 

I do remember her response along those lines.”2

In light of the colloquy, the prosecutor’s explanation of his 

reason can fairly be read as generally consistent with his brief 

and somewhat ambiguous exchange with Juror No. 8061. The 

swimming pool hypothetical was meant to illustrate for the jury 

panel the difference between a reasonable doubt, under the 

applicable burden of proof, and a doubt based on speculation or 

matters outside the evidence. Given the juror’s responses, the 

prosecutor may have believed that she might entertain a doubt 

based on speculation (anything could have happened) or matters 

outside the evidence (the sprinklers could have come on). Thus, 

his explanation of why he excused her—out of concern that, 

notwithstanding her ultimate agreement on the reasonable 

2 The majority interprets the trial court’s acknowledgement 

that it did not “keep those exact notes” (italics added) to mean 

that it did not take notes. But the court’s statement could 

alternatively mean that (1) during the prosecutor’s explanation, 

the court took the time to review its own notes to ensure the 

accuracy of the prosecutor’s recollection of the colloquy; and (2) 

although the court’s notes did not mirror the prosecutor’s 

recollection of the colloquy, they were generally consistent with 

the prosecutor’s brief recitation of his exchange with the juror. 

Thus, the court’s acknowledgement does not, as the majority 

concludes, show that the court abdicated its responsibility to 

conduct a reasoned evaluation of the prosecutor’s justification.
4

answer, she might misapply the reasonable doubt standard—

finds support in our limited record.

Moreover, the trial court’s recollection that the juror’s 

responses were “along [the] lines” of those recited by the 

prosecutor was, in my view, accurate. The court’s ultimate 

finding that the prosecutor’s explanation was genuine is therefore 

entitled to deference because it was based, not solely on the 

prosecutor’s recollection, but rather upon a “sincere and reasoned 

effort” to evaluate the prosecutor’s explanation for the strike.

As the colloquy shows, after a back-and-forth with the 

prosecutor, Juror No. 8061 agreed that the reasonable answer, 

based solely on the facts of the hypothetical, was that the boy got 

into the pool. Thus, a successful challenge to the juror for cause 

would have been unlikely. But, “[s]o long as prosecutors are not 

motivated by discriminatory intent, they can strike prospective 

jurors for any reason—including for reasons that don’t 

necessarily justify a challenge for cause.” (People v. Battle (2021) 

11 Cal.5th 749, 779 (Battle).)

I also disagree with the majority’s second reason for 

independently evaluating the credibility of the prosecutor’s 

justification: the trial court’s failure to provide the defense an 

opportunity to address the justification and its failure to follow 

up when the defense ultimately did respond. “‘“‘“[T]he trial court 

is not required to make specific or detailed comments for the 

record to justify every instance in which a prosecutor’s raceneutral reason for exercising a peremptory challenge is being 

accepted by the court as genuine.”’”’ (People v. Vines (2011) 51 

Cal.4th 830, 848 . . . .) However, ‘“[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 
5

global finding that the reasons appear sufficient.”’ (People v. 

Gutierrez (2017) 2 Cal.5th 1150, 1171 . . . (Gutierrez).)” (People v. 

Miles (2020) 9 Cal.5th 513, 539.) In my view, the prosecutor’s 

stated reason, that he was concerned that the juror might not 

follow the law on reasonable doubt, is supported by the record 

and not inherently implausible.

My disagreement with the majority extends to its third 

reason for declining to defer to the trial court’s credibility finding: 

the court misapprehended the governing legal framework for 

evaluating Batson/Wheeler challenges. As support for that 

conclusion, the majority cites the court’s “along those lines” 

statement as evidence of its belief that (1) it was only required to 

determine whether the prosecutor’s recollection was accurate; 

and (2) it was not obligated to determine whether the 

prosecutor’s proffered reason was genuine. But this is not a case 

in which intervening decisional authority makes it difficult for us 

to “be sure from the record that the trial court applied the 

appropriate standard,” such that we should “conduct our own 

independent review.” (Battle, supra, 11 Cal.5th at p. 772.) To the 

contrary, the court’s “duty to determine if the defendant has 

established purposeful discrimination,” as the third and final step 

in the Batson/Wheeler inquiry (Batson, supra, 476 U.S. at p. 98), 

has been clear since the decision in Batson. Under these 

circumstances, we presume that the court was aware of and 

followed the governing legal framework for determining such 

challenges. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)

Accordingly, on this record, I would defer to the trial court’s 

implied finding that the prosecutor was credible when he 

proffered a race-neutral reason for his exercise of a peremptory 

challenge to Juror No. 8061. The “trial court enjoys a relative 
6

advantage vis-à-vis reviewing courts, for it draws on its 

contemporaneous observations when assessing a prosecutor’s 

credibility. [Citation.]” (Gutierrez, supra, 2 Cal.5th at p. 1159.) 

Thus, we should defer to trial court’s credibility determinations 

“‘“in the absence of exceptional circumstances.”’” (People v. Lenix

(2008) 44 Cal.4th 602, 614.) “Experienced trial lawyers recognize 

what has been borne out by common experience over the 

centuries. There is more to human communication than mere 

linguistic content. On appellate review, a voir dire answer sits on 

a page of transcript. In the trial court, however, advocates and 

trial judges watch and listen as the answer is delivered. Myriad 

subtle nuances may shape it, including attitude, attention, 

interest, body language, facial expression and eye contact. ‘Even 

an inflection in the voice can make a difference in the 

meaning. . . .’ ‘[T]he manner of the juror while testifying is 

oftentimes more indicative of the real character of his opinion 

than his words. That is seen below, but cannot always be spread 

upon the record.’ [Citation.]” (Id. at p. 622.) Based on our 

record, there are no exceptional circumstances warranting a 

departure from this traditional rule of deference.

The majority’s conclusion that the prosecutor’s exercise of 

the peremptory challenge was racially motivated demonstrates 

the inherent limitations of exercising an independent review on a 

record such as this. For instance, the majority observes that the 

prosecutor did not exercise peremptory challenges to either the 

juror in seat 19 (among the first group of prospective jurors 

examined) or the juror in seat 17, who later engaged in 

“pushback” with the prosecutor about the swimming pool 

hypothetical. But, as the majority concedes, the record does not 

reveal the race of these jurors, which illustrates why a finding of 
7

a racial motivation for the contested strike is not supported by 

the record.

Finally, I am unpersuaded by the majority’s finding of 

racial motivation based on its conclusion that Juror No. 8061’s 

answers supported an inference she would have been an ideal 

prosecution juror. “[J]ust because the record reveals that [the 

juror] had much to commend her” does not mean that the 

prosecutor’s reasons for excusing her were pretextual or that the 

trial court erred in denying defendant’s Batson/Wheeler motion. 

(Battle, supra, 11 Cal.5th at p. 779.)

In my view, the trial court did not err in denying 

defendant’s Batson/Wheeler motions as to Juror No. 8061 or the 

other jurors who were subjects of those motions and did not 

violate defendant’s confrontation clause rights by admitting his 

codefendant’s statements to the police― arguments raised by 

defendant that the majority does not reach. I would therefore 

affirm the judgment.

KIM, J.