People v. Arias

Filed 5/10/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

A164789

v.

DAVID G. ARIAS, (Alameda County

Super. Ct. No. 19-CR-010020)

Defendant and Appellant.

Defendant David Arias was tried for two counts of sexual abuse

committed against J. Doe, a child under 14 years old. During the trial, the

defense brought a Batson/Wheeler1 motion challenging the prosecutor’s

exercise of a peremptory strike against a prospective juror who was a Black

woman. After the trial court ruled that a prima facie case of discrimination

was established, the prosecutor gave three reasons for the strike. The court

then denied the motion without any discussion, stating only that it did not

“think the challenge was based on racial animus or bias.” The jury convicted

Arias of both charges, and he was sentenced to 15 years to life in prison.

We conclude that the trial court’s cursory denial of the Batson/Wheeler

motion was improper, because the prosecutor’s reasons for the strike do not

withstand scrutiny. The first reason was that the juror would “empathize”

more with defense experts than with a prosecution expert because her

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

22 Cal.3d 258.

1

educational background was similar to that of the defense experts. The

record belies this justification, however, because the prosecution expert’s

educational background was essentially the same as the defense experts’.

The second reason was that the juror had concerns about implicit bias and

unfairness in the criminal justice system. Although a recent statute

expressly renders such a reason presumptively invalid, the statute does not

apply to this case because the jury was selected before its effective date.

(Code Civ. Proc., § 231.7, subds. (e), (i).) But even though this reason was

facially race-neutral under then-governing law, it was nevertheless troubling,

and it did not independently justify the strike under the totality of the

circumstances. Finally, the last reason was that the juror was “pretty

opinionated” and might therefore be reluctant to deliberate. This concern

was unlikely to have actually motivated the strike, however, because it was

not applied to other potential jurors. Applying the governing Batson/Wheeler

framework, we conclude that the record lacks sufficient evidence on which

the trial court could have reasonably relied to accept the prosecutor’s reasons

for striking the juror without further probing and explanation. Because the

error was structural, we reverse.2

I.

FACTUAL AND PROCEDURAL

BACKGROUND

Arias began dating Doe’s mother and moved in with her, Doe, and Doe’s

younger brother when Doe was about four years old. The couple eventually

had a son together. They did not marry, but Doe called Arias her dad.

2 As a result, we need not address Arias’s numerous other claims,

including his claim that the trial court erred by denying his two motions

under the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1)

(RJA) alleging bias against Latinos.

2

In April 2019, when Doe was 11 years old and in sixth grade, she

reported to a school counselor that Arias had sexually abused her. At trial,

Doe described various sexual acts occurring during that school year,

including an incident in the bathroom when Arias forced her to touch his

penis and an incident in her bedroom when Arias licked her vagina while

holding her legs. Arias testified in his own defense and flatly denied ever

touching Doe sexually.

Arias was originally charged in July 2019, and he was tried in mid-

2021. The operative information alleged two felony counts, forcible lewd acts

upon a child under 14 years old and aggravated sexual assault (oral

copulation) of a child under 14 years old.3

Jury selection began in May 2021. During the process, the prosecutor

exercised a peremptory challenge against A.W., a Black woman. The trial

court found that a prima facie case of discrimination was established, but it

accepted the prosecutor’s reasons for the challenge without any assessment,

and it then denied the motion. The seated jury had one Black member, a

woman.

The jury convicted Arias of both charges. In March 2022, the trial

court sentenced him to 15 years to life for aggravated sexual assault and

imposed and stayed a term of 8 years to life for forcible lewd acts.

II.

DISCUSSION

A. The Batson/Wheeler Framework

“ ‘ “Both the federal and state Constitutions prohibit any advocate’s use

of peremptory challenges to exclude prospective jurors based on race.” ’

3 The charges were brought under Penal Code sections 288,

subdivision (b)(1) (forcible lewd acts), and 269, subdivision (a)(4) (aggravated

sexual assault).

3

[Citation.] ‘ “Doing so violates both the equal protection clause of the United

States Constitution and the right to trial by a jury drawn from a

representative cross-section of the community under article I, section 16 of

the California Constitution.” ’ ” (People v. Holmes, McClain and Newborn

(2022) 12 Cal.5th 719, 759–760 (Holmes).) The “ ‘[e]xclusion of even one

prospective juror for reasons impermissible under Batson and Wheeler

constitutes structural error’ ” and requires reversal. (People v. Krebs (2019)

8 Cal.5th 265, 292; People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)

A trial court’s consideration of a defendant’s Batson/Wheeler claim

proceeds in three steps. “ ‘ “First, the defendant must make a prima facie

showing that the prosecution exercised a challenge based on impermissible

criteria. Second, if the trial court finds a prima facie case, then the

prosecution must offer nondiscriminatory reasons for the challenge. Third,

the trial court must determine whether the prosecution’s offered justification

is credible and whether, in light of all relevant circumstances, the defendant

has shown purposeful race discrimination. [Citation.] ‘The ultimate burden

of persuasion regarding [discriminatory] motivation rests with, and never

shifts from, the [defendant].’ ” ’ ” (Holmes, supra, 12 Cal.5th at p. 760.)

Generally, we review a trial court’s denial of a Batson/Wheeler motion

“ ‘ “ ‘with great restraint,’ ” ’ ” considering “only whether substantial evidence

supports its conclusions.” (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).)

“ ‘We presume that a prosecutor uses peremptory challenges in a

constitutional manner and give great deference to the trial court’s ability to

distinguish bona fide reasons from sham excuses. [Citation.] So long as the

trial court makes a sincere and reasoned effort to evaluate the

nondiscriminatory justifications offered, its conclusions are entitled to

deference on appeal.’ ” (Id. at pp. 613–614.) “But when the prosecutor’s

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stated reasons are either unsupported by the record, inherently implausible,

or both, more is required of the trial court than a global finding that the

reasons appear sufficient.” (Silva, supra, 25 Cal.4th at p. 386.) In that

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

for [appellate court] deference.” (People v. Baker (2021) 10 Cal.5th 1044,

1078.)

Here, the trial court found that the defense made a prima facie showing

of discrimination, the prosecutor offered her reasons for striking A.W., and

the court accepted those reasons without comment and denied the

Batson/Wheeler motion. As a result, the issues on appeal are whether the

prosecutor’s reasons were facially neutral at the second stage of the analysis

and whether the court erred by uncritically crediting them at the third stage

of the analysis.

B. Additional Facts

A.W. was in her thirties and had a bachelor’s degree in business, a

master’s degree in counseling, and a Ph.D. in “higher education and

organizational change.” She worked at a major healthcare company where

she “design[ed] and execute[d] learning experience[s] for new [and] existing

employees.” In response to a question on the juror questionnaire asking for

the jurors’ “feelings about the criminal justice system,” she wrote, “It is a

system that has its benefits, such as providing a process that facilitates a

decision whether or not someone is innocent or guilty of a crime. However,

there are improvements that need to be made to ensure that individual[s] are

not falsely convicted of a crime that they did not commit[].”

A.W. was questioned on the second day of voir dire. The prosecutor

began by asking A.W. whether there was anything from the previous day’s

questioning “that stood out to [her] as new or different or anything [she]

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thought might be troubling that stuck in [her] mind.” A.W. replied, “Not so

much troubling. I think this process is fairly new. One thing that I did hear

over and over again was the one[-]person testimony and that being sufficient

or not, as well as the Me To[o] movement [that] came up quite a bit. The

position that I take is I’m coming in with a fresh, new lens, so I’m coming in

with an open mind. I don’t have an opinion either way. One thing I will say

is that everyone has unconscious bias and I think that’s something that I

would want to put out there in the beginning. And it’s hard to say check your

bias at the door especially if you don’t know what that is.”

The prosecutor acknowledged that A.W. had “a good point” and other

jurors had already raised “the idea of maybe having unconscious biases or

implicit biases.” The prosecutor said, “[W]e are asking you right now, are you

biased that you might not know,” and specifically asked whether A.W. “[felt]

one way or the other[,] whether it has to do with . . . the Me Too movement or

other feelings about the system,” such that it “would sort of tip [her] one way

or the other or might come up, as [she was] hearing evidence, and testimony

from kids about abuse.”

A.W. responded, “Not that I can say right now,” and asked the

prosecutor to clarify what she meant when she “talk[ed] about the system.”

When the prosecutor asked A.W. to explain further, A.W. responded, “So you

said is there anything . . . that struck me either way that might tip me in one

way or the other. Right now I could say no. I think that as a juror in terms

of the system that we have here, it’s not based upon what I feel. I will have,

if selected, 11 other peers around me to discuss the evidence in an objective

way . . . . So I think that because of that, I don’t think my opinion solely will

totally weigh heavily on the final decision.”

6

The prosecutor then asked whether A.W. was “open to the idea that

[she] might change [her] mind as [she was] deliberating with other jurors

about the verdict in this case.” A.W. said, “That’s a wonderful question. I

can’t say because . . . I’ve never gone through this before. One thing that I

will say is—my understanding is we have to make a decision based upon the

evidence . . . [and] argument that’s made. And I feel that if I’m selected and I

hear evidence that sways me one way or the other, I think for me, just

knowing who I am, . . . I’m going to stick to it.” The prosecutor asked

whether this characteristic “might interfere with [A.W.’s] ability to discuss

the case with other jurors as [they were] deliberating.” A.W. responded, “Not

necessarily because I’m coming in with an open mind. But I will voice . . . my

perception of the evidence that I hear.”

In addition, the prosecutor addressed A.W.’s opinion “that

improvements needed to be made in the criminal justice system,” asking

whether A.W. had “specific improvements in mind.” A.W. responded,

“Slowly. If you think of Plessy vs. Ferguson[4] and other

cases where a ruling was handed down or even when we have a

jury case and it would [be] overturn[ed], or the person was

exonerated, that right there is an indicator that there is a need

for improvement within the justice system, right?

“So I’m not saying we need to do an overhaul, but certainly,

if we’re thinking about justice and we’re thinking about making

sure that those who are innocent [aren’t] wrongly convicted, and

those who are guilty of a crime are rightly convicted, then we

have to scrutinize . . . the system and what we do. It shouldn’t be

. . . like oh, it’s working right now so, you know what, let’s keep it

as it is. It should be evaluated continually. . . . [T]hat’s what I

was trying to convey in the questionnaire.”

4 Plessy v. Ferguson (1896) 163 U.S. 537 (Plessy), which established the

segregationist separate-but-equal doctrine.

7

Arias’s trial counsel questioned A.W. more briefly. As relevant here,

counsel asked whether A.W. could promise she would not “compromise [her]

opinion just to appease other jurors,” and A.W. responded, “Oh, absolutely.”

After the prosecutor exercised a peremptory challenge against A.W.,

the defense made a Batson/Wheeler motion. Defense counsel believed “the

reason that [the prosecutor] kicked [A.W.] ha[d] to do with her race. And the

reason I say that is that all of [A.W.’s] answers were answers that were

similar to other people’s answers in terms of making sure that people don’t

have an unconscious bias in evaluating things in an objective manner. And

her personal experiences as a Black woman informed her answers.” Counsel

argued that if the prosecutor tried to justify the challenge based on what

A.W. said, “those are proxies for race because we need to have people who

have had a wide breadth of experience and mak[e] sure that our justice

system is fair.”

The trial court found that a prima facie case of discrimination was

established and asked the prosecutor to state her reasons for excusing A.W.

The prosecutor responded,

“The first thing that I noticed about [A.W.’s] questionnaire

was the fact that she possesses a Ph.D. in a soft science from

UCLA. She got her Ph.D. in higher education and organizational

change. The possession of . . . a doctorate degree, anything

higher than a master’s has been a concern of mine throughout

[the] case. I kicked [another prospective juror] because like

[A.W.], he too . . . had a degree in social psychology, a Ph.D.

“Given the testimony from [defense counsel’s] anticipated

expert witnesses who are Ph.D.’s in soft sciences themselves, I’m

concerned with jurors who may have a similar level of education

and may empathize with those experts. [¶] I’m also calling an

expert who has a Ph.D., but it’s in a different area. And it’s the

higher educational, soft science context that I’m concerned about.

Juris doctorate degrees also concern me which is why I kicked

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[two other prospective jurors]. I view [A.W.] as like them, in

possession of [a] high level of education. And the fact that . . . in

questioning, she raised concerns about implicit bias, subconscious

bias, concerns about innocent people in jail, and concerns about

false accusations. Those buzz words coupled with the higher

degree in the soft sciences also went into the reason for my kick.

“Other jurors have talked about those concepts as well and

I have not had a chance to kick them because, for example, [one

prospective juror] was excused for hardship and he, too—

although his doctorate degree was in chemistry. I’m concerned

about folks who may be too fixated on those concepts as a result

of their higher education.

“Another concern that I had about [A.W.] was the fact that

she says she’s pretty opinionated. And when she was questioned

by me and [defense counsel], she indicated that when she forms

an opinion, she holds it strongly and she didn’t see herself

changing her mind. She might not change her mind . . . [s]he told

[defense counsel] when she’s back there deliberating[. T]hat

contrasted with some of the other answers that the other jurors

have given that I haven’t kicked.”

The prosecutor argued that a prima facie case of discrimination was not

established because A.W. was the only Black woman she had excused,

whereas defense counsel had already “exercised two peremptories to kick two

Black women from this jury.” In conclusion, the prosecutor said, “For all of

those reasons, not [defense counsel’s] exercise of peremptories, but for the

reasons that I stated about my concerns about [A.W.] over education and

hyperawareness of potential for false accusations and potential unwillingness

to deliberate, was why I kicked her.”

The trial court then denied the Batson/Wheeler motion, stating, “All

right. Well, I am going to allow the challenge. I don’t think the challenge

was based on racial animus or bias.” The court did not otherwise explain its

ruling.

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C. The Prosecutor’s Reasons for Striking A.W. Were Facially Neutral.

Arias claims that one of the prosecutor’s reasons for excusing A.W.—

that she raised “concerns about implicit bias, subconscious bias, concerns

about innocent people in jail, and concerns about false accusations”—was not

facially “race-neutral” and thus did not pass muster at the second stage of the

Batson/Wheeler analysis. We disagree with him on this point.

As we have said, once a trial court concludes that the defendant has

made a prima facie showing of discrimination, “the burden shifts to the

[prosecutor] to give an adequate nondiscriminatory explanation for the

challenge[].” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez).) To

satisfy this requirement, “the [prosecutor] must provide ‘a “clear and

reasonably specific” explanation of [the prosecutor’s] “legitimate reasons” for

exercising the challenge[].’ ” (Ibid.) “ ‘ “[U]nless a discriminatory intent is

inherent in the prosecutor’s explanation,” ’ the reason will be deemed

neutral.” (Ibid.) Whether a given reason is facially neutral is a question of

law reviewed de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 198, fn. 9.)

Arias claims that the prosecutor’s concern about A.W.’s views on bias

and false accusations was not facially neutral, because A.W.’s “comments

were not abstract concerns about fairness; her explicit reference to Plessy v.

Ferguson showed she was concerned with the way the legal system

specifically discriminates against African[]Americans.”5 We disagree with

this interpretation of the record. The record shows that the main concern

5 Even if some of a prosecutor’s reasons are facially neutral, that does

not excuse reasons that are not facially neutral. (People v. Silas (2021)

68 Cal.App.5th 1057, 1101 (Silas); People v. Douglas (2018) 22 Cal.App.5th

1162, 1164–1165.) Thus, even though Arias challenges only one of the

prosecutor’s reasons for striking A.W., we still must determine whether that

reason is facially valid. (See Silas, at p. 1101.)

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about bias during voir dire was not with whether Arias would be subjected to

bias on account of being Latino, but instead with whether he would be

subjected to bias on account of being charged with a sexual crime against a

child. When the issue of implicit bias came up several times during voir dire,

the discussion focused on whether potential jurors were inclined to believe

sexual assault victims and children. The prosecutor’s questioning of A.W.

about bias was similarly focused. True, A.W. cited both Plessy and wrongful

accusations and convictions as examples of the need to consistently

reevaluate the justice system to ensure its fairness. And of course, Plessy

involved discrimination against Black people, and unfair prosecutions

sometimes result from racism. But A.W.’s concerns were not clearly race-

based, since the context in which she raised them involved whether jurors

would be biased against Arias because of the nature of the charged crimes.

Even if one of the prosecutor’s reasons for the strike had been that

A.W. was concerned about discrimination in the legal system against Black

people, that reason would pass muster under the law governing this case.

Although such a reason is presumptively invalid under current law (Code

Civ. Proc., § 231.7, subd. (e)(1)), it satisfies the Batson/Wheeler framework’s

“low bar . . . for whether a prosecutor’s explanation passes muster at the

second stage.” (Silas, supra, 68 Cal.App.5th at p. 1102.) As we noted in

Silas, our state Supreme Court indicated years ago that a prospective juror’s

“ ‘ “considerable sympathy for Black people on trial” and [belief that] the

justice system was unfair to Blacks’ ” is a race-neutral reason for exercising a

peremptory strike. (Ibid., quoting People v. Hamilton (2009) 45 Cal.4th 863,

899; see People v. Winbush (2017) 2 Cal.5th 402, 439 [“[s]kepticism about the

fairness of the criminal justice system to . . . racial minorities” is a “valid

race-neutral ground” for a peremptory challenge].) In doing so, the Court

11

distinguished between an impermissible “challenge based solely on the

prospective juror’s race” and a permissible “challenge ‘which may find its

roots in part [in] the juror’s attitude about the justice system and about

society which may be race related.’ ” (Hamilton, at pp. 901–902.)

Arias argues that Hamilton is distinguishable because “[i]n that case,

there was evidence the juror was not just concerned about racism in the legal

system but was actually biased towards Black defendants.” But the Supreme

Court did not rely on any such bias in deciding that the prosecution met its

burden at the second stage. Instead, the Court determined that “the trial

court reasonably could conclude” that the prosecutor’s reason for the strike

“was race neutral.” (People v. Hamilton, supra, 45 Cal.4th at pp. 901–902.) If

the Hamilton juror’s sympathy toward Black defendants and belief the justice

system was unfair to them is a race-neutral reason, we cannot see how the

prosecutor’s reasons for striking A.W. were not.

Arias also contends that in Silas, we concluded that “a juror’s belief

that ‘Black defendants tend to be sentenced more harshly’ is ‘an explicitly

race-tied view,’ and does not constitute a race-neutral reason for striking a

prospective juror.” (Quoting Silas, supra, 68 Cal.App.5th at p. 1099.) We

made the quoted statement when addressing a trial court’s first-stage ruling

that the defendants failed to establish a prima facie case of discrimination,

and we determined that the belief that Black defendants are sentenced more

harshly was not a “ ‘nondiscriminatory reason[] . . . that necessarily

dispel[led] any inference of bias.’ ” (Id. at p. 1096, quoting People v. Scott

(2015) 61 Cal.4th 363, 384.) We were careful to point out that even if reasons

for exercising a peremptory challenge are not “ ‘facially discriminatory’ such

that they ‘almost certainly raise an inference of discrimination’ ” at

Batson/Wheeler’s second stage, they can still be “sufficiently race related to

12

‘bolster’ an inference of discriminatory intent” at the first stage. (Silas, at

p. 1097, quoting Scott, at pp. 392, 390.) Silas does not support Arias’s claim

that the prosecutor’s reasons for striking A.W. were facially invalid.

D. The Record Does Not Support the Trial Court’s Unexplained

Third-stage Ruling that the Peremptory Challenge of A.W. Was

Not Discriminatory.

Having concluded that the prosecutor’s reasons for excusing A.W. were

facially race-neutral, we turn to the next step of the Batson/Wheeler

framework. “At step three, courts look to all relevant circumstances bearing

on the issue of discrimination.” (People v. McDaniel (2021) 12 Cal.5th 97,

122; Foster v. Chatman (2016) 578 U.S. 488, 501.) These “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.” (McDaniel, at p. 122.) “The ultimate inquiry is whether the State

was ‘motivated in substantial part by discriminatory intent.’ ” (Flowers v.

Mississippi (2019) 588 U.S. __, 139 S.Ct. 2228, 2244.)

The primary focus of the analysis is “the persuasiveness of the

prosecutor’s justification for [the] peremptory strike. At this stage,

‘implausible or fantastic justifications may (and probably will) be found to be

pretexts for purposeful discrimination.’ [Citation.] In that instance the issue

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

explanations to be credible. Credibility can be measured by, among other

factors, the prosecutor’s demeanor; by how reasonable, or how improbable,

the explanations are; and by whether the proffered rationale has some basis

in accepted trial strategy.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 338–

339.)

Where, as here, a prosecutor gives several reasons for a strike, the

apparent validity of one or more of them does not end the analysis. Such an

13

approach by a prosecutor “carries a significant danger: that the trial court

will take a shortcut in its determination of the prosecutor’s credibility,

picking one plausible item from the list and summarily accepting it without

considering whether the prosecutor’s explanation as a whole, including

offered reasons that are implausible or unsupported by the prospective juror’s

questionnaire and voir dire, indicates a pretextual justification. 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. [Citation.] In assessing credibility

at the third stage . . . , trial courts should attempt to evaluate the

[prosecutor’s] statement of reasons as a whole rather than focus exclusively

on one or two of the reasons offered.” (People v. Smith (2018) 4 Cal.5th 1134,

1157–1158.)

As we have said, when a trial court fails to make a sincere and

reasoned effort to evaluate the prosecutor’s reasons for a peremptory strike,

we need not defer to the court’s finding that the reasons were genuine. Here,

the prosecutor’s three stated reasons for striking A.W. were unsupported,

dubious, or unpersuasive. The record therefore fails to support the trial

court’s denial of the Batson/Wheeler motion.

1. The higher-education reason

We agree with Arias that the prosecutor’s first reason is not supported

by the record. The prosecutor justified her desire to avoid jurors with Ph.D.’s

in so-called “soft sciences” on the basis that the defense’s “anticipated expert

witnesses . . . [had] Ph.D.’s in soft sciences themselves,” and she was

“concerned with jurors who may have a similar level of education and may

empathize with those experts.” Although the prosecutor recognized that she

was “also calling an expert who ha[d] a Ph.D.,” she claimed that her expert’s

14

Ph.D. was “in a different area.” As best we can tell from the record, this

claim was untrue.

The record shows that at the time of voir dire, three experts with

higher degrees in “soft sciences” had been disclosed as potential witnesses,

two for the defense and one for the prosecution. All three eventually

testified. The first defense expert, Dr. Bradley McAuliff, had a Ph.D. in

psychology and was employed as a psychology professor. He was qualified as

an expert in children’s suggestibility and forensic interviewing. The second

defense expert, Dr. Alex Schmidt, had a Psy.D. in clinical psychology and was

employed as a forensic psychologist. She testified as an expert in the

characteristics, treatment, and risk evaluation of sex offenders. Finally, the

prosecution expert, Dr. Anthony Urquiza, had “a doctorate in clinical

psychology” and was employed as a professor and the director of a child-abuse

treatment center.6 He was qualified as an expert on child sexual assault and

child sexual abuse accommodation syndrome.

All three experts had doctoral degrees in psychology. Dr. Urquiza and

Dr. Schmidt both specialized in clinical psychology, and Dr. Urquiza, like

Dr. McAuliff, conducted research in his role as a professor. Especially given

that A.W. did not have a degree in psychology herself, we do not see how any

finer distinctions between the areas in which each expert practiced or

testified suggested A.W. would “empathize” more with the defense experts

than with Dr. Urquiza.7

6 Although the record does not specify whether Dr. Urquiza holds a

Ph.D. or a Psy.D., we take judicial notice of the fact he has a Ph.D., as stated

in other published opinions. (People v. Ranlet (2016) 1 Cal.App.5th 363, 371;

People v. Ennis (2010) 190 Cal.App.4th 721, 727; Evid. Code, § 452, subd. (h).)

7 We note that two seated jurors, a White man and an Asian man, had

bachelor’s degrees in psychology.

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“ ‘Where the facts in the record are objectively contrary to the

prosecutor’s statements, serious questions about the legitimacy of a

prosecutor’s reasons for exercising peremptory challenges are raised.’ ”

(People v. Arellano (2016) 245 Cal.App.4th 1139, 1169.) “ ‘The trial court has

a duty to determine the credibility of the prosecutor’s proffered explanations’

[citation], and it should be suspicious when presented with reasons that are

unsupported or otherwise implausible.” (Silva, supra, 25 Cal.4th at p. 385.)

This duty requires a court to “ma[k]e a sincere and reasoned attempt to

evaluate each stated reason as applied to each challenged juror.” (Id. at

pp. 385–386.) “Although an isolated mistake or misstatement that the trial

court recognizes as such is generally insufficient to demonstrate

discriminatory intent,” the same is not true when there is “no support for the

prosecutor’s stated reason[] . . . and the . . . court has failed to probe the

issue.” (Id. at p. 385.) Here, the trial court utterly failed to probe the higher-

education reason, which lacks record support and plausibility. As a result,

we do not defer to the court’s implicit finding that it was genuine. (See id. at

p. 386.)

Moreover, as Arias observes, the prosecutor did not ask A.W. questions

about her Ph.D. or her educational background more generally, much less

about whether her education might incline her to favor the defense experts.

A prosecutor’s failure to question a prospective juror about a reason given for

striking that juror “undermines the persuasiveness of the claimed concern.”

(Miller-El v. Dretke (2005) 545 U.S. 231, 250, fn. 8; see id. at p. 246; see also

Gutierrez, supra, 2 Cal.5th at p. 1170.)

The Attorney General does not identify any support in the record for

the higher-education reason, merely brushing aside Arias’s concerns as

“points [at] which the prosecutor may have overstated her case, or may not

16

have been entirely accurate as to the minutia[e].” Rather, he argues that we

should simply defer to the trial court’s ruling, despite its brevity and Silva’s

holding that deference is unwarranted in such a circumstance.

In making his argument, the Attorney General relies on People v.

Reynoso (2003) 31 Cal.4th 903 (Reynoso). In that case, one of the prosecutor’s

reasons for a peremptory strike was that the prospective juror “was a

customer service representative” and thus “ ‘did not have enough educational

experience.’ ” (Id. at pp. 923–924.) Relying on Silva, the Court of Appeal

declined to defer to “the trial court’s express determination” that the reason

was “sincere and genuine,” because it “ ‘was not supported by the record and

lacked any content related to the case being tried.’ ” (Reynoso, at pp. 923–

924.) The Supreme Court reversed, explaining that “[i]t was not this court’s

intention that the holding in Silva should be so expansively applied.” (Id. at

pp. 908, 923.) The relevant question was whether the reason was genuine,

not “whether, objectively speaking, all customer service representatives lack

sufficient ‘educational experience’ to sit on a jury . . . or even whether,

subjectively speaking, [the prospective juror] . . . herself had insufficient

‘educational experience’ to sit on the jury.” (Id. at p. 925, italics omitted.)

The Court concluded that Silva did not apply because the reason, while “of

questionable persuasiveness,” was “neither contradicted by the record nor

inherently implausible.” (Reynoso, at p. 929.)

Reynoso does not alter our view that deference to the trial court’s ruling

is unwarranted. Unlike in Reynoso, the trial court here made no explicit

finding that the prosecutor’s reasons were sincere and genuine. And, more

importantly, the record here affirmatively contradicts, not just fails to

support, the prosecutor’s statement that the prosecution expert had a Ph.D.

in a different area than the defense experts did. In turn, that undermines

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the prosecutor’s claim that A.W. would favor the defense experts because she

had a similar educational background to theirs. In short, the Attorney

General fails to convince us that “deferential review is appropriate” on the

basis that “the prosecutor’s stated reasons are both ‘inherently plausible and

supported by the record.’ ”

The Attorney General also claims that “[t]he prosecutor’s concern with

jurors possessing higher education was obviously to keep the jury focusing on

the facts rather than delving into irrelevant academic discussions.” We agree

that this concern was likely behind the prosecutor’s statement that A.W.’s

views about implicit bias and the criminal justice system, “coupled with the

higher degree in the soft sciences[,] also went into the reason for [the] kick.”

But the prosecutor viewed A.W.’s education as a problem not just because it

might render A.W. “too fixated” on these issues but also because it might

incline A.W. to favor the defense experts. We will not disregard unsupported

aspects of the prosecutor’s stated reasons merely because a more limited

concern might have passed scrutiny. (See People v. Jones (2011) 51 Cal.4th

346, 365 [“ ‘If the stated reason does not hold up, its pretextual significance

does not fade because a trial judge, or an appeals court, can imagine a reason

that might not have been shown up as false’ ”].)

2. The implicit-bias reason

We next turn to the prosecutor’s second reason for striking A.W., that

A.W. expressed concerns about implicit bias and fairness in the criminal

justice system. Initially, we are not persuaded by Arias’s claim that the

prosecutor mischaracterized A.W.’s stance on these issues. Arias argues that

the prosecutor inaccurately stated that A.W. “raised” concerns about these

issues, because “in fact the prosecutor invited these topics of discussion.”

Arias’s objection to the word “raised” is no more than a quibble: The

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prosecutor was clearly concerned about A.W.’s substantive views, not about

whether A.W. brought them up without prompting.

Arias also argues that “[c]ontrary to the prosecutor’s characterization,

[A.W.] did not express only concern ‘about innocent people in jail and . . . false

accusations,’ ” because she also said that the justice system should ensure

that guilty people “ ‘are rightly convicted.’ ” But the prosecutor never said

that A.W.’s “only” concerns were false accusations and wrongful convictions.

Nor, as Arias claims, did the prosecutor say A.W. was “overly concerned” with

these issues. In short, we disagree that this reason for striking A.W. lacks

record support.

Nonetheless, we are disheartened by the prosecutor’s desire to reject

jurors who were concerned about implicit bias and fairness in the justice

system. In passing the RJA, the Legislature repeated findings “that all

persons possess implicit biases [citation], that these biases impact the

criminal justice system [citation], and that negative implicit biases tend to

disfavor people of color [citation].” (Assem. Bill No. 2542 (2019–2020 Reg.

Sess.) § 2, subd. (g).) It observed the “growing awareness that no degree or

amount of racial bias is tolerable in a fair and just criminal justice system,

that racial bias is often insidious, and that purposeful discrimination is often

masked and racial animus disguised.” (Id., § 2, subd. (h).) And it found that

“[i]mplicit bias, although often unintentional and unconscious, may inject

racism and unfairness into proceedings similar to intentional bias.” (Id., § 2,

subd. (i).)

Jurors should be encouraged to guard against the possibility that their

decisions will be affected by bias, implicit or otherwise. “[G]iven that implicit

biases generally influence decisionmaking, there is no reason to presume that

citizens become immune to the effects of these biases when they serve in the

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role of jurors.” (Kang et al., Implicit Bias in the Courtroom (2012) 59 UCLA

L.Rev. 1124, 1144.) Thus, not only does recognizing implicit bias “not make a

person unfit to serve as a juror” (People v. Thompson (2022) 83 Cal.App.5th

69, 127 (conc. opn. of Lie, J.)), it arguably makes a person a better juror.

Under the governing Batson/Wheeler framework, we cannot conclude that

the prosecutor’s reason for striking A.W.—i.e., A.W.’s concern about implicit

bias and fairness—was invalid, lacked record support, or was implausible.

But the reason was nonetheless troubling, and the trial court should not have

so casually accepted it, without further inquiry or comment, as proof that the

prosecutor was not acting out of racial bias.

The Attorney General says little in defense of the implicit-bias

justification for the peremptory strike. Unconvincingly, he claims that Arias

“did not even argue that the challenge was based on the race of [A.W.],”

because being “concerned with racial bias in the system” is not a “protected

class.” In fact, when making the Batson/Wheeler motion, defense counsel

explicitly claimed that “the reason that [the prosecutor] kicked [A.W.] has to

do with her race.” Thus, although counsel compared A.W.’s statements about

bias to those of other jurors to illustrate why she thought the strike was

discriminatory, she clearly argued that A.W. was improperly struck because

she was Black.

Ultimately, we need not determine whether the implicit-bias reason

would have justified the strike of A.W. had it been the only reason the

prosecutor offered. The higher-education reason was not supported by the

record and the third reason, to which we now turn, was similarly

unconvincing as an actual motivation for the strike. Thus, the implicit-bias

reason fails to dispel the conclusion that the prosecutor’s “explanation as a

whole” was pretextual. (People v. Smith, supra, 4 Cal.5th at p. 1157.)

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3. The strong-opinions reason

Finally, Arias challenges the prosecutor’s third reason for striking

A.W., her inclination to stick to her opinions. To reiterate, the prosecutor

characterized A.W. as “pretty opinionated,” because A.W. “indicated that

when she forms an opinion, she holds it strongly and she didn’t see herself

changing her mind. She might not change her mind . . . [s]he told [defense

counsel] when she’s back there deliberating.”

We disagree with Arias that this was “not a fair characterization of

[A.W.]’s position.” True, A.W. said she was “coming in with an open mind,”

but she also answered equivocally when the prosecutor questioned her about

her ability to deliberate with other jurors. When the prosecutor asked

whether A.W. was “open to the idea that [she] might change her mind as [she

was] deliberating,” A.W. responded that she “[could not] say” and was

inclined to “stick to” her decision. (Italics added.) And when the prosecutor

asked whether “that might interfere with [A.W.’s] ability to discuss the case

with other jurors,” A.W. responded, “Not necessarily because I’m coming in

with an open mind.” (Italics added.) As for defense counsel’s questioning,

A.W. stated that she could “absolutely” promise counsel that she would not

“compromise [her] opinion just to appease other jurors.” Taken as a whole,

these responses adequately supported the prosecutor’s observations about

A.W.’s reluctance to change her mind.

Arias also argues that other jurors whom the prosecutor did not strike

gave responses similar to A.W.’s about their willingness to deliberate. We

may perform a comparative juror analysis for the first time on appeal, but

such review “is necessarily circumscribed. [We] need not consider responses

by stricken panelists or seated jurors other than those identified by the

defendant in the claim of disparate treatment.” (Lenix, supra, 44 Cal.4th at

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p. 624.) Thus, we will not consider Arias’s claim as to a prospective juror who

was not ultimately seated.

We will, however, consider the claim as to two jurors who were seated:

Juror No. 10, the only Black member of the jury, and Juror No. 11, who

identified as Asian Indian.8 Although Arias claims otherwise, both jurors

were questioned before the trial court ruled on the Batson/Wheeler motion.

Thus, there is no issue as to whether Arias forfeited his reliance on these

jurors’ responses. (See People v. Chism (2014) 58 Cal.4th 1266, 1319.)

Both jurors responded to defense counsel’s questions about how they

would feel if the jury did not reach a unanimous verdict and whether they

would compromise their opinions to appease other jurors. First, Arias points

out that Juror No. 10 said, “If I don’t agree, I still stick to what I do believe,

you know, in my heart I believe that my decision is.” She also said that she

would “be okay” if the jury did not reach a unanimous decision. Juror No. 10

also disclosed, however, that a few years earlier she sat on a jury that was

able to reach a verdict in a criminal case. This fact could have reasonably

allayed any concern the prosecutor might otherwise have had about Juror

No. 10’s willingness to deliberate.9

Second, Arias points out that Juror No. 11 “said [he] would not

compromise [his] opinion just to come to a decision.” But this juror also

8 Our review has been hampered by the fact the record lacks an

adequate system for referring to jurors and prospective jurors, whether by

number or otherwise. The numbers we assign these two jurors reflect the

order in which the seated juror questionnaires appear in the augmented

clerk’s transcript.

9 Since the parties were apparently unaware that Juror No. 10 was

Black, neither has addressed whether or how that fact impacts her use in a

comparative juror analysis here. We need not address this issue because we

conclude that Juror No. 10 was not sufficiently comparable to A.W.

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stated that he thought it would be “a waste of time” if the jury hung, and

even though he “might have [his] own opinions and judgments,” he would

listen to others in the group before reaching “a formed opinion.” Thus, Juror

No. 11 arguably displayed more openness to deliberating and willingness to

compromise than did A.W.

Although we are not persuaded by Arias’s attempts to undermine the

prosecutor’s final reason for striking A.W., the record demonstrates that the

reason could not have been a central one for the strike. Not only was it the

last reason given, but the prosecutor questioned very few prospective jurors

about their willingness to deliberate. Most such questioning was done by

defense counsel, who asked only some jurors about the issue. Thus, the

record suggests that the prosecutor was not motivated to identify and remove

jurors who might be reluctant to deliberate.

4. On this record, the denial of the Batson/Wheeler motion

was erroneous.

“Though we exercise great restraint in reviewing a prosecutor’s

explanations and typically afford deference to a trial court’s Batson/Wheeler

rulings, we can only perform a meaningful review when the record contains

evidence of solid value.” (Gutierrez, supra, 2 Cal.5th at p. 1172.) Both

attorneys and courts “have a role to play in building a record worthy of

deference,” but here, neither the prosecutor nor the trial court fulfilled their

obligation to do so. (Id. at p. 1171.) The prosecutor’s reasons for striking

A.W. were all problematic. The first reason was unsupported by the record,

the second reason was deeply troubling, and the third reason was of

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apparently minor actual significance to the prosecutor. Still, the court

accepted these reasons without any explanation or further probing.10

The ultimate question at the third stage of a Batson/Wheeler analysis

is whether the defendant proved purposeful racial discrimination by a

preponderance of the evidence. (Purkett v. Elem (1995) 514 U.S. 765, 767;

Silas, supra, 68 Cal.App.5th at p. 1094; People v. Hutchins (2007)

147 Cal.App.4th 992, 997–998.) Here, none of the prosecutor’s reasons for

striking A.W. stand up to scrutiny, and the trial court failed to make “ ‘a

sincere and reasoned effort’ ” to evaluate them. (Lenix, supra, 44 Cal.4th at

p. 614.) Thus, the court’s ruling that Arias did not meet his “burden of

proving intentional discrimination with respect to the prosecutor’s exclusion

of [A.W.] . . . was unreasonable in light of the record of voir dire proceedings.”

(Gutierrez, supra, 2 Cal.5th at p. 1172.) Reversal is required.

III.

DISPOSITION

The judgment is reversed.

10 For the first time at oral argument, the Attorney General contended

that we should remand the case for the trial court to make a better record,

three years after the fact, of why it accepted the prosecutor’s reasons. We

decline to do so. Not only is there no authority for such a procedure, the trial

judge has since retired.

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_________________________

Humes, P.J.

WE CONCUR:

_________________________

Banke, J.

_________________________

Castro, J.*

*Judge of the Superior Court of the County of Alameda, assigned by the

Chief Justice pursuant to article VI, section 6 of the California Constitution.

People v. Arias A164789

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Trial Court:

Superior Court of Alameda

Trial Judge:

Hon. Allan Hymer

Counsel:

Law Office of Matthew Siroka, Matthew A. Siroka, under appointment by the

Court of Appeal, for Defendant and Appellant.

LatinoJustice PRLDEF, Lourdes Rosado, President and General Counsel, as

Amicus Curiae on behalf of Defendant and Appellant.

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

General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine

A. Rivlin, Supervising Deputy Attorney General, Gregg E. Zywicke, Deputy

Attorney General for Plaintiff and Respondent.

People v. Arias A164789

26