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Bruce Phan v. John W. Haviland

August 25, 2011

BRUCE PHAN, PETITIONER,
v.
JOHN W. HAVILAND, WARDEN RESPONDENT.



The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge

ORDER, FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Bruce Phan, is a state prisoner and is proceeding through counsel with a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial, Petitioner was found guilty of second-degree murder and attempted murder along with corresponding enhancements that he personally used a firearm, personally discharged a firearm and caused great bodily injury or death by using a firearm. The jury was deadlocked on a separate attempted murder charge and a mistrial was declared as to that charge. Petitioner was sentenced to fifteen years to life for the murder, seven years for the attempted murder and consecutive terms of twenty-five years to life for the firearm enhancements. Petitioner raises five claims in this federal habeas petition; specifically: (1) the trial court failed to dismiss the entire jury venire following the prosecutor's racially discriminatory use of peremptory challenges ("Claim I"); (2) the trial court failed to dismiss the entire jury venire following the prosecutor's use of peremptory challenges against women ("Claim II"); (3) the trial court erred in excluding two extra-judicial, exculpatory statements of Petitioner that were necessary to rebut the prosecutor's argument that Petitioner had not professed his innocence prior to his arrest ("Claim III"); (4) the trial court erred in conducting an intrusive and coercive inquiry during the jury deliberations which targeted the one holdout juror who was Asian ("Claim IV"); and (5) the trial court erred when it refused to entertain Petitioner's request to discharge retained counsel and appoint new counsel for the post- trial proceedings ("Claim V"). For the following reasons, the habeas petition should be denied.

II. FACTUAL BACKGROUND*fn1

In June 2003, Lamson [Trong Pham] and Bruce [Huy Phan]*fn2 were charged with the October 2002 murder ([Cal. Pen. Code] § 187) of Alan Khamphoumy, with personal discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and attempted murder of T.T. and V.D. with the same firearm allegations. In August 2003, Sutter [Nguyen] was charged with the same offenses.

The trial court granted the prosecutor's motion to join the cases and denied Sutter's motion for severance. An amended consolidated information was filed, charging all defendants with one count of murder and two counts of attempted murder, and alleging firearm enhancements and infliction of great bodily injury under sections 1203.06, 12022.5, 12022.7, and 12022.53.

The prosecution's theory was that defendants were involved in a Vietnamese street gang (though the case was not charged under the street gang statutes) and went looking for a confrontation with rival Laotian gang members and shot at unarmed people. Lamson and Bruce claimed self-defense. Sutter did not testify but maintained there was no evidence he was there or had anything to do with the crimes.

The evidence at trial included the following:

On the night of October 26, 2002, a Laotian family held a birthday party for a 16-year-old girl in and around the garage of their Sacramento residence. Some of the attendees (including one of the people who was shot, T.T.) were involved in a Laotian street gang -- LGC (Little Gangster Crips or Laotian Gangster Crips).

Also present were some Vietnamese who were involved in a Vietnamese street gang (JVP or Junior Viet(namese) Pride).

All defendants are Vietnamese. Prosecution evidence indicated that in 1998 the police confirmed (validated [FN 2]) Sutter as a JVP gang member, and Lamson (though not validated as a member) associated with the JVP gang. There was no evidence that Bruce was a gang member. [FN 2] "Validation" means the police fill out a form concluding a person meets at least two of several criteria established by the police for determining gang membership.

There was conflicting evidence as to what happened. One partygoer, S.K. (also known as Viet), testified he recognized Lamson at the party, having met him when they were both at the Boys' Ranch, where Lamson claimed affiliation with JVP. S.K. admitted he was a member of LGC but said it was not an LGC party, and his friends did not have guns that night. Partygoers (some of whom testified under a grant of use immunity) testified the two groups faced each other across the driveway. The Vietnamese asked, "Where you all from?" (Which a gang expert explained was a challenge to fight). One of the Laotians said, "LG." The Vietnamese said, "LG What?" pulled out their guns and started shooting.

T.T., an LGC member (who testified he quit LGC before the party), heard gang taunts of, "where you from" and saw guns. Unarmed, he backed away and tried to escape but was shot in the stomach. V.D., a 17-year-old girl, was shot in the hip and leg. [FN 3] Alan Khamphoumy was shot and killed. [FN 3] She had participated in Internet chat with two of defendants' group but denied mentioning the party to them. One of them, John D., told the police he recognized the girl at the party as someone he knew "from being on-line."

Lamson and Bruce were stopped by police on the same street as the party as they tried to leave the scene in a Tahoe SUV. The police noticed Lamson was bleeding (having been shot, perhaps accidentally, by one of his companions). Two guns were found in the SUV, both of which were connected to casings found at the crime scene. Bruce's fingerprints were on a gun (a Kimber .45), which was matched to the bullet that killed Alan Khamphoumy, and gunshot residue was found on Bruce's palm.

Some but not all partygoers identified Lamson and/or Bruce in police line-ups.

As part of the investigation, police sought validated JVP members Sutter and Trung Nguyen, also known as Boy (a JVP leader or "shot caller"), but did not locate them.

Sutter was arrested months later, on June 24, 2003, when he was in a black Honda stopped by the police. After the driver emerged from the Honda, the front seat passenger -- Boy -- killed himself with a gunshot wound to the head. Sutter then emerged from the back seat, with a loaded gun in his waistband.

An earlier suicide by another person, Tan T., in March 2003, brought to light a .380 pistol that was matched to casings found at the crime scene and most likely fired a bullet that hit Lamson. Shell casings from four guns were found at the scene. The 27 shell casings found at the scene were of .45, .380, and nine-millimeter calibers. Ten were connected to the .45 Ruger and the .45 Kimber found in the vehicle of Lamson and Bruce and to the bullet found in the deceased Khamphoumy. Three .380 casings were from the gun later used by Tan T. to commit suicide. Fourteen casings and five slugs were traced to a nine-millimeter gun which was not recovered. Test firing of a gun found behind the fence at the scene of the party did not match any casings taken from the scene.

Lamson and Bruce testified at trial, and both testified that they and Sutter were at the party. Lamson and Bruce admitted they fired guns, but claimed they did so only in self-defense or defense of others.

Lamson denied JVP involvement but knew Boy was a JVP member. Lamson was told by Sutter that Sutter used to be JVP but left because he did not get along with the group. Lamson claimed he went to the party to meet girls and he was carrying a gun that night because he thought it would be "cool" to show to girls. He claimed he fired the gun in self-defense after others started shooting. Lamson said he saw Sutter at the party but did not remember seeing Sutter during the shooting. Lamson said he came out of the garage after dancing; someone shot at him; and he fired back. He got shot, and Bruce helped him to the SUV.

Bruce testified he was not a JVP member. He also claimed he carried a gun to impress girls. He said he fired only in defense of Lamson. Bruce said he came out of the garage, heard someone say, "Little Gangster Crip Nigga" and saw T.T. trying to shoot a gun but nothing came out. Bruce was unsure of the sequence of events but said Boy drew his gun and fired, and others drew guns, including Sutter and John D. Bruce said he drew his gun and fired after Viet shot Lamson. Bruce first testified Sutter also pulled a gun and shot, but the next day testified he did not know whether Sutter did or not, and did not know what Sutter did during the shooting, and was only assuming Sutter was present because he (Bruce) saw someone who resembled Sutter at the party. Bruce said he did not even know Sutter and saw him for the first time sitting in a car at the park that night. Bruce said he, not Sutter, helped the injured Lamson.

John D., age 19 at the time of trial, testified he had been given use immunity and was awaiting trial for an unrelated murder. John testified Boy was JVP, but John and Sutter were not. John testified Boy and Tan T. [FN 5] picked up John in Boy's black Honda on the night in question, and they went to a park where they met up with Lamson and Bruce and some girls, and then Sutter arrived at the park. Boy told the group that the ABZ [FN 6] gang was having a party. The males in the group went to the party. John testified that he, Sutter, Lamson, and Tan T. went with Boy in Boy's car. At the party, John's group walked into the garage where the party was being held. They all stood in the corner, except Lamson, who danced. They saw some Laotians across the garage, looking at them in an unfriendly way. John's group went outside to the driveway, except Lamson, who continued dancing. The Laotians came out and faced John's group across the driveway and asked what "set" John's group was from. One of John's group asked the same question of the Laotians, who said they were LGC. Bruce pulled out a gun. The Laotians said, "we're cool," as in "they didn't want no beef." [FN 7] John told the police he did not see any of the Laotians with a weapon. Lamson came out of the garage holding himself and falling down. John testified he was wrong when he told the police that the shooting started when Lamson pulled his gun; it actually started before Lamson came out of the garage. John did not remember who shot first, but it was not Sutter because Sutter did not have a gun. Sutter helped Lamson to Bruce's vehicle before leaving with John. John testified he himself did not have a gun, and he ran to the car when the shooting started. John testified it was Tan T., not Sutter (as John previously told the police), who fired the .380 pistol which Tan T. Later used to commit suicide. John denied changing his story to protect Sutter and lay blame on the deceased Tan. However, John admitted he lied to the police, which he attributed to his fear of being charged with the shooting. He also admitted he testified incorrectly at trial that he never possess a gun (he said he misunderstood the question). He possessed a gun on another occasion, but not on the night in question. [FN 5] John D. acknowledged he did not previously tell the police about Tan T. being there. Bruce testified Tan was not there. [FN 6] The gang expert testified that ABZ (Asian Boys), a Crip set which was mainly Cambodian, associated with the Laotian gang LGC. [FN 7] Partygoer Phet B. testified T.T. walked towards defendants' group with his hands out to the side from his waist, palms facing forward. The gang expert testified that approaching with hands out was an invitation to fight. Phet B. testified defendants' group pulled out guns, and everyone else started backing up and ran when defendant's group opened fire.

Evidence was adduced that John D.'s trial testimony conflicted in part with his statements in a police interview on June 25, 2003, a (redacted) videotape of which was transcribed and played for the jury. He told the police he was at the park with Boy, Lamson and Bruce on the night in question when Sutter arrived. John and Sutter went with Boy in Boy's black Honda to the party. After 10 or 20 minutes, they walked outside of the garage. Some Laotians walked out, approached, and asked where they were from. John backed up. Bruce pulled a gun. The Laotians said they were LGC. Lamson then jumped out of the garage and pulled out a gun. Sutter and Boy pulled out guns. Bruce fired first, and then others started shooting, but John did not see who. Sutter had a .380 AMT or AMG, which someone later borrowed to commit suicide. After the shooting, Sutter helped Lamson to the SUV, then drove off with John and Boy.

Other than the three witnesses (John D. and co-defendants Lamson and Bruce), no one placed Sutter at the crime scene. Indeed, one of the victims testified he was acquainted with Sutter but did not see him at the party. [FN 8] Another witness, J.L., testified she saw Boy and John earlier in the evening in the parking lot of a pool hall. She showed them were the party was. No one else was in Boy's car at the time. However, Boy and John did not stay at the party but left and returned later. [FN 8] One of the people who was shot, T.T., testified he knew Sutter from a prior mutual confinement at Boys' Ranch in 1999 but did not see him the night of the party. When asked if he would have known Sutter had he seen him, T.T. said, "I wouldn't be so sure if that's him or not." T.T. also said he was not there long enough to see who was there, and he had been drinking. T.T. acknowledged he did not identify Sutter as one of the perpetrators in police line-ups; he did not really recognize Sutter in the line-ups and was not sure it was him. T.T. said that at the Boys' Ranch he got along with Sutter, who said he used to be a gang member but no longer was. T.T. said he was not sure if he would have recognized Sutter at the party "'cuz I never seen him in street clothes before." T.T. said he would have no reason to deny seeing Sutter if he had seen him. T.T. testified he was also unable to say whether Lamson or Bruce was at the party.

Sutter did not testify at trial. His attorney argued to the jury that there was no evidence Sutter was even there that night, other than uncorroborated testimony of "accomplices" Lamson, Bruce and John D.

(Slip Op. at p. 2-10 (footnote omitted).)

III. PROCEDURAL HISTORY

Petitioner was convicted of the charges outlined in supra Part I and a mistrial was declared on one of the attempted murder charges after the jury was deadlocked on that charge. Petitioner appealed to the California Court of Appeal. That court affirmed the judgment with respect to Petitioner's claims. Petitioner's petition for review to the California Supreme Court was summarily denied on May 14, 2008. On July 23, 2009, Petitioner, proceeding with counsel filed the instant federal habeas petition. On February 18, 2010, Respondent was granted an extension of time to file an answer until February 28, 2010. Respondent answered the petition on March 4, 2010 and filed a request for relief from default and permission for late filing of the answer. Default was never entered by the Clerk of Court and Petitioner did not file any opposition to Respondent's four-day late filing of his answer. As such, Petitioner's request for relief from default will be denied as moot and his request for late filing of the answer will be granted. Petitioner filed a traverse on May 21, 2010.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. 2254(d).

As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").

The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated Petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). In this case, the last reasoned decision on Petitioner's Claims was from the California Court of Appeal on direct appeal.

V. ANALYSIS OF PETITIONER'S CLAIMS

A. Claim I

In Claim I, Petitioner asserts that the trial court erred in failing to dismiss the entire jury venire due to the prosecutor's racially discriminatory use of peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The California Court of Appeal outlined the factual underpinnings of this Claim and analyzed it as follows:

Defendants contend their federal and state constitutional rights to an impartial jury were violated by the trial court's denial of their Batson/Wheeler motions (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) [overruled in part by Johnson v. California (2005) 545 U.S. 162 [162 L.Ed.2d 129]]), which claimed the prosecutor was exercising peremptory challenges on the impermissible basis of race/ethnicity and gender. We shall conclude there is no basis for reversal.

1. Background

On November 9, 2005, Bruce made a Wheeler motion (with joinder by Lamson and Sutter, which also invoked Batson), claiming the prosecutor was systematically exercising peremptory challenges to remove minority prospective jurors - specifically:

a. Jose R. [FN 22] (Hispanic); [FN 22] Some of the parties use the prospective jurors' full names, and the People note the statute protecting juror's identities does not apply to prospective jurors. We see no need to use surnames.

b. Irene M. (believed to be Hispanic);

c. Amber D. (believed to be Hispanic);

d. Wanda S. (Asian); and

e. Clem C. (Filipino).

Defense counsel asserted all remaining prospective jurors in the box, except one, were Caucasian. The trial court found the defense had made a prima facie showing and asked the prosecutor to explain his reasons for excluding the minority jurors.

The prosecutor explained his reasons: Jose R. said he was once stopped by police officers, who bent the truth about the encounter. Irene M. said she was raised in "the hood" and never had a problem, and the attitude with which she said that led the prosecutor to believe that she had special knowledge of gangs and had dealt with gang members and had no problem with gangs. Amber D. had a nephew serving a 25-year-to-life sentence for murder (thus she knew the penalty for murder) and had a relative involved in a self-defense issue (and self-defense was an issue in this case). Wanda S. indicated defendants' faces and some of the names seemed familiar, and she knew Bruce's attorney from church. Clem C. had been prosecuted and believed the jurors in his case were a "wanting to go home at 4:00 kind of jury," so he just pled guilty even though he felt he was not guilty.

The trial court found the prosecutor's reasons were neutral, plausible and legitimate. The judge added he was expecting a defense motion based on the exclusion of women, though he noted it would be impossible for the prosecution to exclude all women because most of the panel were women.

Later in the proceeding, defendants brought a second Batson/Wheeler motion and asked the court to reconsider its earlier ruling in light of the prosecutor's exercise of peremptory challenges on prospective jurors Gilda B. (Hispanic) and Ms. M. (African American). The prosecutor noted he still had unused peremptory challenges but was ready to accept the jury with two African Americans and one Asian on it. The trial court acknowledged the make-up of the jury box was different this time. The prosecutor added, in light of renewal of the motion, an additional point concerning Amber D., questioning whether she was Hispanic and noting she was married and had a Spanish surname but was blonde and fair-skinned. The court opined she was not very fair-skinned, and her blonde hair appeared to be dyed, but in any event "that ship's already passed us."

The prosecutor explained his reasons for excluding the two new people. Gilda B. had a daughter with a DUI (which in itself did not bother the prosecutor) plus a brother-in-law who was prosecuted and convicted for serious offenses, including robbery and armed robbery at ATMs, three years ago, and Gilda B., attended those court proceedings. The prosecutor was not willing to accept her statement that she could be fair. As to Ms. M., she was a counselor at a college attended by Bruce and previously worked at a high school in South Central Los Angeles, where she had numerous contacts with gang members. She acted as an advocate for students against professors and had students who were murdered and students who committed murders and robberies. The prosecutor also noted Ms. M. told the court she would want to leave at 4:15 p.m. to get to a class she taught and, when the court said it could not accommodate her, she tilted her eyeglasses down and stared at the judge for several seconds. The prosecutor said he did not have confidence that she would not be a "little bit hostile" about having to serve on the jury.

The court asked if defense counsel wanted to comment, at which point Sutter's lawyer said, "The only other thing I'd like to add in is the fact that most of the challenges appeared to be also women." Lamson's lawyer said the crimes involving Gilda B.'s brother-inlaw were 15 years ago, not three (except a three-year-old case in which he was released), and Gilda B. said she felt he got what he deserved, and her demeanor was not as characterized by the prosecutor, and the prosecutor did not probe her feelings in depth. Lamson's lawyer noted by way of contrast that the prosecutor did not use peremptory challenges on other prospective jurors who themselves had prior convictions -- one of which was a military criminal conviction for drug possession.

Lamson's lawyer said, "I do want to add that I think on reflection that there has also been a systematic use of his -- of the prosecution's p[er]emptory challenges to exclude women from this jury. [¶] I believe all but maybe two [FN 24] of his challenges have been to women. And all of the last I think five or seven have been to women. [¶] The only two that I recall that were male were Mr. [N.] who, you know, loved the Constitution and his guns, and and [sic] the other one was Mr. [G.] who was Hispanic." The prosecutor said he also excluded Clem C. and Jose R. Defense counsel noted they were minorities. [FN 24] Bruce's appellate brief says it was all but three.

The judge observed he was the one who initially said he was expecting a defense motion based on exclusion of women, but as the judge looked at the panel, he realized there was a disproportionate number of women on the panel. Lamson's lawyer said the judge was "provoking" him into moving to strike the panel as unrepresentative of the community. When the court asked if he was making such a motion, counsel said yes, but he retreated when the court said such motions need a showing of numbers. The court said it would entertain such a motion if brought by the defense (which did not happen).

The prosecutor said he intended to make the point made by the judge, that the panel was almost exclusively women.

The court noted the current make-up of the jury was five men and seven women, which "sort of, you know, waters down that whole argument about, you know, there being too many women because we do have five men and seven women."

The prosecutor argued that, given the makeup of the panel, there was no prima facie case of gender bias.

The trial court agreed, concluding there was no prima facie case of gender bias. The court repeated that the current constitution of the jury was five men and seven women. The court later added its recollection that it had granted hardship excuses to a lot of men. Returning to the matter of racial/ethnic bias, the prosecutor explained why he kept on the jury the person with the military case, which was in essence a civil action seeking reinstatement of a 19-year military pension which was taken away for smoking marijuana, which the prosecutor thought was a harsh penalty and nowhere close to the armed robberies of Gilda B.'s relative. The only other possible criminal matters of persons currently in the jury box were DUIs, which the prosecutor did not view as an issue because they were not comparable to armed robberies, and he did not think someone with a DUI would say, "well, I had a DUI so I'm going to walk these guys on murder."

The trial court stated that it was satisfied that the questioning of prospective jurors had not been cursory. The court found the prosecutor's reasons for excluding Gilda B. were genuine and legitimate, even though the prosecutor was mistaken about the dates, given that she had a family member involved in the criminal justice system for a very serious offense. The string of ATM robberies was 15 years ago, and the offender got out of prison three years ago. Gilda B. said she attended some of the court proceedings. The court found, based on Gilda B.'s answers, that the prosecutor had legitimate concerns which were the actual motivation for the exercise of the challenge. As to Ms. M., the court said it believed the prosecutor's reasons for excluding her were neutral and plausible.

2. Analysis

A prosecutor's use of peremptory challenges to strike prospective jurors on the basis of race, ethnicity or gender violates equal protection and the defendant's right to trial by a jury drawn from a representative cross-section of the community. (People v. Avila (2006) 38 Cal.4th 491, 541.) "When a defendant believes his or her constitutional rights are being violated by the exercise of a peremptory challenge, Batson requires that the defendant '[f]irst . . . make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [FN 25] [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial [or other class] exclusion" by offering permissible [class]-neutral justification for the strikes. [Citations.] Third, "[i]f a [class]-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful [class] discrimination." [Citation.]' (Johnson v. California (2005) 545 U.S. 162, 168 . . . .) 'It is not until the third step that the persuasiveness of the justification becomes relevant -- the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.' [Citation.] The trial court is required to make a '"'sincere and reasoned'"' evaluation based on the circumstances before it. (People v. Reynoso (2003) 31 Cal.4th 903, 919.)" (People v. Hutchins (2007) 147 Cal.App.4th 992, 996-887, italics omitted.) [FN 25] As we discuss post, the standard at the time of defendants' trial was whether the defendants showed a reasonable likelihood of impermissible discrimination.

The trial court must determine not only that a valid reason existed but also that it actually prompted the prosecutor's exercise of the peremptory challenge. (People v. Fuentes (1991) 54 Cal.3d 707, 720.) A trial judge is required to make a "'sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. [Citations.] 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. But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.'" (People v. Stevens (2007) 41 Cal.4th 182, 193, citing People v. Silva (2001) 25 Cal.4th 345, 386.) The best evidence of whether a race-neutral reason should be believed is often the demeanor of the attorney who exercises the challenge, and evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within the trial judge's province. (People v. Stevens, supra 41 Cal.4th at p. 198.) Accordingly, we review the trial court's ruling under a substantial evidence standard. [FN 26] (Alvarez, supra 14 Cal.4th at pp. 196-197.) [FN 26] Although Lamson's opening brief indicated substantial evidence review (stating his position that the prosecutor's reasons were unsupported by the record and/or inherently implausible), his reply brief cites federal cases for the asserted proposition that we must review the prosecutor's explanations de novo. We need not consider new arguments raised in the reply brief but note the federal cases indicated de novo review of the second step of the analysis, whether the prosecutor's stated reason is race-neutral on its face. (United States v. McCoy (9th Cir. 1994) 23 F.3d 216, 217.)

Defendants contend that a recent opinion of the United States Supreme Court -- Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196] -- now requires appellate courts to engage in comparative juror analysis, in contrast to the prior California rule of People v. Johnson (1989) 47 Cal.3d 1194. The parties note the issue is currently pending in the California Supreme Court (People v. Lenix (Jan.2, 2007, F048115) [nonpub. op.] review granted Jan. 24, 2007). In recent cases, the California Supreme Court has elected to conduct such a comparative analysis rather than decide whether Miller-El compelled it to do so. (E.g., People v. Stevens, supra, 41 Cal.4th 182, 196.) We will do the same.

a. Race/Ethnicity

Defendants contend the record shows the prosecutor's reasons for excluding minority jurors was pretextual. We disagree.

I. Jose R.

As indicated, the prosecutor's stated reason for exclusion of Jose R. was that he said he had been stopped by the police who "bended [sic] the truth." [FN 27] [FN 27] We disregard the Attorney General's unsupported and facially defective claim that the prosecutor's quotation of Jose R.'s words "bended [sic] the truth" meant the prosecutor was concerned about Jose R.'s ability to understand English.

Defendants argue the prosecutor's reason was mere pretext because, although Jose R. did say he was involved in a car crash while drunk and police "bended [sic] the truth just [a] little bit, "he also said he got what he deserved, was satisfied, had learned a lesson, and would be fair to both sides in this case.

However, the prosecutor was not required to accept on its face the prospective juror's assertion of impartiality and open-mindedness, despite his accusation that law enforcement officers lied. Defendants cite no authority supporting their position. To the contrary, a prospective juror's negative feelings about law enforcement may be a valid basis for exercising a peremptory challenge. (People v. Johnson (1989) 47 Cal.3d 1194, 1215-1218.) Although Jose R. was not as negative as the prospective jurors in Johnson, he did not need to be in order for the prosecutor to have a valid, non-discriminatory ground for excusing him.

Defendants add that Jose R. later revealed he owned a firearm and came from a family which hunted. Defendants fail to show how that helps their case.

Defendants claim the trial court was wrong when it said the prosecutor had adequately questioned Jose R. about the issues troubling the prosecutor. However, what the trial court said was: "The questioning of all these jurors certainly by the Court has been rather extensive. And I will note that in various forms counsels' questioning of the jurors have [sic] been quite extensive as well. [¶] And -- and I do want to note that particularly [the prosecutor's] questioning of the jurors or at least some of the jurors, have -- has been -- has been quite, quite extensive. He's gone into a number of things with several different jurors. [¶] And I -- I will note that the areas that the prosecutor covered relative to the five affected jurors that [defense counsel] mentioned, those were areas that [the prosecutor] went into quite a bit. It wasn't as though he went into it in limited fashion. You know, he kind of he [sic] kept going into certain areas." Thus, the trial court was speaking of the prospective jurors as a group. Even assuming the prosecutor never asked any specific questions of Jose R., that does not demonstrate grounds for reversal. The trial court adequately questioned Jose R. Moreover, the prosecutor was not required to probe after Jose R. accused law enforcement officers of lying.

Defendants fail to show grounds for reversal with respect to Jose R.

ii. Irene M.

The prosecutor said he excluded Irene M., not merely because she said she was raised in "the hood" and never had a problem with gangs, but because the attitude with which she said it led the prosecutor to believe that she had special knowledge of gangs and had dealt with gang members and had no problem with gang members.

Defendants claim Irene M. said her awareness of gangs came from hearing her mother and other women discuss having seen gang members in stores. However, what she said was that, as she was growing up, she knew individuals who were allegedly in gangs. When asked if she had personal experience with gang members, she said, "Not per s[e] that they did this or -- or but, you know, you sort of knew neighborhoods because maybe the mothers would -- would discuss it with -- with other mothers. They might have seen them at the grocery stores or something like that."

Defendants say the record does not support the prosecutor's assertion that Irene M. had special knowledge or had dealt with gangs. They also cite Irene M.'s statement that her experience would not affect her ability to be fair, nor would it cause her automatically to believe or disbelieve testimony of gang members or associates.

However, defendants neglect to acknowledge that the prosecutor, in giving his reasons regarding Irene M., pointed not only to her words, but also her "attitude." This was a matter for assessment by the trial court, which had the opportunity to observe the prospective juror. The court implicitly accepted the prosecutor's view.

Defendants contend the prosecutor's reasons regarding Irene M. were a sham, because the prosecutor kept on the jury two persons (Jurors 7 and 11), each of whom had experience with or exposure to gangs at least as extensive as Irene M. Again, defendants fail to acknowledge the prosecutor's reference to Irene M.'s attitude, which is a matter for the trial judge who observed her, not for a reviewing court working with a cold record.

Defendants fail to show grounds for reversal with respect to Irene M.

iii. Amber D.

The prosecutor excluded Amber D. because she had a nephew serving 25 years to life for murder (thus she knew the penalty for murder) and had another nephew involved in a shooting who was not charged because the prosecution concluded he acted in defense of his mother during a domestic violence incident. The prosecutor noted self-defense was an issue in this case.

Defendants argue Amber D. was not that close to either nephew's case, and the self-defense case was 15 years ago, and she said she could remain impartial. Defendants contend Amber D. had other facets that would make her seem to be pro-prosecution, i.e., she had been a victim of several crimes and had a brother-in-law who was a prison guard. Again, however, the prosecutor was not required to come to the same assessment as defendants.

Defendants argue by comparison that the prosecutor allowed to remain on the jury persons who had been convicted of crimes or had friends convicted of crimes. One juror had two DUIs, another had a dishonorable discharge for marijuana, and another had a friend who was shot and killed and the defendant asserted self-defense.

However, none of these jurors knew anyone serving prison time for murder. Knowing a murder victim is different than knowing a murderer. Moreover, the prosecutor adequately explained he did not consider DUIs or marijuana use significant enough to prejudice a juror against the prosecutor in a murder case.

Thus, even assuming Amber D. was a minority, defendants fail to show grounds for reversal with respect to her.

iv. Wanda S.

Wanda S. said the defendants' faces and some of the names seemed familiar, and she knew Bruce's attorney from church. The prosecutor said, "I was not gonna wait and see mid-trial when it came to her or she ended up recognizing somebody, how those chips had fall [sic], so she was excused."

Defendants argue there were other facets of Wanda S. that might favor the prosecution, i.e., she knew police officers socially, her brother-in-law was an assault/robbery victim, she was a burglary victim, the school where she worked had been tagged with gang graffiti, and she had knowledge of gangs from gang prevention workshops.

None of this undermines the prosecutor's undeniably valid reason that this juror knew one of the defense attorneys from church.

v. Clem C.

The prosecutor explained he excused Clem C. because he had been prosecuted and believed the jurors in his case were a "wanting to go home at 4:00 kind of jury," so he just pled guilty even though he felt he was not guilty.

Defendants point out Clem C. also said he blamed himself for his legal troubles, in that he was accused of carrying a concealed weapon without a permit after he placed a gun in his garment bag to hide it from his toddler son and forgot about the gun until it triggered the metal detector at the airport. Defendants also note Clem C. was an auditor with the Environmental Protection Agency, had previously served on a jury, had a sister who was a judge, and had relatives who worked at the Department of Justice and District Attorney's Office.

None of these points renders pretextual the prosecutor's explanation. Although Clem C. blamed himself, he disparaged his jury and indicated resentment about his criminal conviction.

vi. Gilda B.

The prosecutor explained his reasons for excluding Gilda B.: She had a brother-in-law who was convicted of serious offenses, including robbery and armed robbery at ATMs, three years ago, and Gilda B. attended those court proceedings. The prosecutor was not willing to accept her statement that she could be fair.

That the robberies were 15 years ago rather than three is of no consequence, since the trial court concluded it was a mistake by the prosecutor rather than an intentional misrepresentation, and the crimes were serious. Contrary to the defense argument, the prosecutor did not place "great emphasis" on the year the crime was committed. Defendants assert the prosecutor did not probe Gilda B. to the same depth as the person with the military discharge; Gilda B.'s cousin worked in law enforcement; and Gilda

B. said she believed her felon brother-in-law got what he deserved. None of these points demonstrates reversible error. Lamson cites People v. Turner (1986) 42 Cal.3d 711 at page 727, for the proposition that a prosecutor's failure to engage prospective jurors in more than desultory voir dire is a factor supporting an inference that the challenge was based on group bias. However, that statement in Turner related to the prosecutor's explanation that he excused a Black prospective juror because she said she could not sit impartially because she was a mother of children. (Id. at pp. 726-727.) The Supreme Court observed her comment was much more ambiguous and was unexplored by the prosecutor. (Ibid.)

Here, in contrast, it is undisputed that the prospective juror had a brother-in-law who was convicted of armed robberies. This fact in itself justified the prosecutor's decision, and he was not required to take up court time in useless probing. We note the voir dire transcript consumed over 1,000 pages of the transcript.

vii. Ms. M.

As to Ms. M., the prosecutor said she was a counselor at a college attended by Bruce and previously worked at a high school in South Central Los Angeles, where she had numerous contacts with gang members. She acted as an advocate for students against professors and had students who were murdered and students who committed murders and robberies. The prosecutor also noted Ms. M. told the court she would want to leave at 4:15 p.m. to get to a class she taught and, when the court said it could not accommodate her, she said, "oh, I heard you," tilted her eyeglasses down and stared at the judge for several seconds. The prosecutor did not have confidence that she would not be a "little bit hostile" about having to serve on the jury.

Defendants note: Ms. M. had served on a criminal jury which reached a verdict; her brother used to be a state police officer; she had gang training as a teacher and gang members as students; and she had former students in Los Angeles who were victims of crime involving gangs.

None of these points demonstrates grounds for reversal. The trial judge was in the best position to assess the prosecutor's point about Ms. M's attitude.

We conclude defendants fail to show that the prosecutor impermissibly excluded jurors on the basis of race or ethnicity.

(Slip Op. at p. 63-79.)

i. Applicable Law

To establish a Batson claim, the defendant must first make a prima facie showing that a challenge was made on an impermissible basis, such as race. 476 U.S. at 96; see also Johnson v. California, 545 U.S. 162, 170-71 (2005). To establish a prima facie case, a petitioner must show that (1) the prospective juror is a member of a cognizable racial group, (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motivated by race. See Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir. 2006) (citing Batson, 476 U.S. at 96). Where the defendant has made a prima facie showing of discrimination, the burden shifts to the prosecutor to offer a race-neutral reason for the challenge that relates to the case. See Johnson, 545 U.S. at 168. Where the prosecutor offers a race-neutral explanation for the challenge, the trial court decides whether the defendant has proved the prosecutor's motive for the challenge was purposeful racial discrimination. See id.; Batson, 476 U.S. at 98. The opponent of the strike has the ultimate burden of persuasion regarding racial motivation. See Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam). An en banc panel of the Ninth Circuit in Kesser v. Cambra, 465 F.3d 351, 359-60 (9th Cir. 2006) (en banc) discussed at length the requirements of a court in analyzing the third step of a Batson issue:

At this stage, "the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination." Purkett, 514 U.S. at 768. Although the burden remains with the defendant to show purposeful discrimination, the third step of Batson primarily involves the trier of fact. After the prosecution puts forward a race-neutral reason, the court is required to evaluate "the persuasiveness of the justification." Id. To accept a prosecutor's stated nonracial reasons, the court need not agree with them. The question is not whether the stated reason represents a sound strategic judgment, but "whether counsel's race-neutral explanation for a peremptory challenge should be believed." Hernandez v. New York, 500 U.S. 352, 365 (1991) (plurality opinion). "It is true that peremptories are often the subjects of instinct," and that "it can sometimes be hard to say what the reason is." Miller-El, 125 S.Ct. at 2332. "But when 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." Id. "While subjective factors may play a legitimate role in the exercise of challenges, reliance on such factors alone cannot overcome strong objective indicia of discrimination. . . ." Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir. 1994).

The trier of fact may not turn a blind eye to purposeful discrimination obscured by race-neutral excuses. "[T]he prosecutor must give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." Batson, 476 U.S. at 98 n. 20 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981)). "A Batson challenge does not call for a mere exercise in thinking up any rational basis." Miller-El, 125 S.Ct. at 2332. Reasons must be "related to the particular case to be tried." Batson, 476 U.S. at 98. "[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Purkett, 514 U.S. at 768.

The court need not accept any proffered rationale. We have recognized that "[w]hen there is reason to believe that there is a racial motivation for the challenge, neither the trial courts nor we are bound to accept at face value a list of neutral reasons that are either unsupported in the record or refuted by it." Johnson, 3 F.3d at 1331. The court must evaluate the record and consider each explanation within the context of the trial as a whole because "'[a]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts.'" Hernandez, 500 U.S at 363, 111 S.Ct. 1859 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)); see also Miller-El, 125 S.Ct. at 2324 (noting that Batson requires inquiry into "'the totality of the relevant facts' about a prosecutor's conduct" (quoting Batson, 476 U.S. at 94, 106 S.Ct. 1712)); Batson, 476 U.S. at 93, 106 S.Ct. 1712 ("In deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence as may be available." (internal quotation marks omitted)). A court need not find all nonracial reasons pretextual in order to find racial discrimination. "[I]f a review of the record undermines the prosecutor's stated reasons, or many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination." Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir. 2003); see also United States v. Chinchilla, 874 F.2d 695, 699 (9th Cir. 1989) ("Thus, the court is left with only two acceptable bases for the challenges. . . . Although these criteria would normally be adequately 'neutral' explanations taken at face value, the fact that two of the four proffered reasons do not hold up under judicial scrutiny militates against their sufficiency.").

See also Green v. LaMarque, 532 F.3d 1028, 1030 (9th Cir. 2008) (discussing the court's inquiry at the third step of a Batson analysis).

"'If a prosecutor's proffered reason for striking a [minority] panelist applies just as well to an otherwise - similar [nonminority] who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step.'" Kesser, 465 F.3d at 360 (quoting Miller-El, 125 S.Ct. at 2325). Furthermore, "'the Constitution forbids striking even a single prospective juror for a discriminatory purpose.'" United States v. Collins, 551 F.3d 914, 919 (9th Cir. 2009) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)). Therefore, each of the seven potential jurors that Petitioner claims were impermissibly struck by the prosecution must be separately analyzed under the Batson framework.

ii. Jose R.

The trial court found that Petitioner had satisfied his prima facie case with respect to the strike against Jose R. (See Voir Dire Tr. at p. 813.) The prosecutor then stated his reason for striking Jose R. which was the following: "this was the individual who said that he was stopped by police officers. And I think his quote was they bended (sic) the truth in reference to his encounter with police officers. So given that circumstance he was not going to be a sitting juror." (Id.) The trial court determined that this was a neutral reason and was plausible and that it saw the strategy by the prosecution. (See id. at p. 816.) The California Court of Appeal noted this and found no reason for reversal due to the strike against Jose R. The state court's determination that Petitioner failed to establish that the prosecutor's strike against Jose R. was pretextual was not an objectively unreasonable application of clearly established federal law.

During the voir dire proceedings, the following colloquy took place between Jose R. and the court:

THE COURT: Have you close, friend or relative ever been the victim of a crime? . . .

Q: Okay. All right. [Jose R.], sir?

A: I was driving under the influence. That lead into an accident. I crashed my vehicle and was arrested. Well, yeah, was arrested for like a day or so and let me go.

Q: How long ago was this, sir?

A: About three years ago.

Q: Was that here in Sacramento County?

A: Yes.

Q: Were you satisfied with the manner in which you were treated by law enforcement?

A: To somewhat extent. I feel that -- they bended (sic) the truth just a little bit. They said things that I really didn't do but

Q: Okay.

A: -- I understand that. I was intoxicated and I did, you know -- driving under the influence. But some things about it just weren't right, but I got what I deserved.

Q: Okay.

A: So -- and overall I was satisfied because I learned a lesson from it. And just isn't going to happen again. But I can see how someone could bend the truth just a little bit.

Q: All right. Well, let me ask you this. You may or may not have officers testifying in this trial. [¶] Based on what happened to you, do you think that you would have a tendency to just totally disbelieve an officer any time they testify?

A: No. Not at all.

Q: All right. So you think that the incident involving you is just peculiar to you?

A: It could happen to someone else. But I mean, that incident just happened to me. From what I experienced that was only on me. But I -- I'm open to look at all the evidence. And looking at all the facts and judging for myself if someone is guilty or not.

(Voir Dire Tr. at p. 365-67.)

As the above colloquy indicates, prospective juror Jose R. believed that law enforcement "bended the truth" with respect to his DUI. A prosecutor's reason for excusing a prospective juror because of his negative experience with the police constitutes a valid, race neutral reason for using a peremptory strike under federal law. See Mitleider v. Hall, 391 F.3d 1039, 1048 (9th Cir. 2004); United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir. 1987). Petitioner failed to satisfy his burden showing that the prosecutor's reason for striking Jose R. was pretextual based on the record. Therefore, he is not entitled to federal habeas relief based on the use of a peremptory strike against Jose R.

iii. Irene M.

Next, Petitioner argues that the prosecutor's use of a peremptory strike against Irene M. violated Batson. Petitioner argued to the trial court that the prosecutor struck Irene M. because she is Hispanic. (See Voir Dire Tr. at p. 809.) The trial court found that the Petitioner had satisfied his prima facie case and asked the prosecutor to give his reasons for striking Irene M. (See id. at p. 812-13.) The prosecutor stated the following with respect to striking Irene M: "[s]he's the one that indicated that she had been raised in the hood and had never had a problem. [¶] In my mind, she had special knowledge of gangs and -- the attitude in which she said that led me to believe that her mind-set was that she's dealt with gang members in the past and had no problems with gang members. So she was not going to be a sitting juror as well."

(Voir Dire Tr. at p. 813-14.) The trial court found that the prosecutor's reason for striking Irene M. was plausible and stated that he saw "the strategy by the prosecution." (Id. at p. 816.) The California Court of Appeal did not reverse the trial court's finding and specifically noted that the prosecution based this strike on Irene M's attitude. For the following reasons, the strike against Irene M. does not warrant federal habeas relief as Petitioner failed to show that the state court's decision was an unreasonable application of clearly established federal law. During the voir dire proceedings, the following colloquy took place between the court and Irene M.:

Q: Prospective juror number four, [Irene M.], what do you want to tell us?

A: I was raised in the hood and with different cultures. My parents still live there in the area. And they've never had -- our family's never had any problems with different gang members with stuff like that.

Q: Did you know any of the individuals who were allegedly in gangs from your own neighborhood?

A: As I was growing up, yes.

Q: Okay. All right. So you've actually had personal experience with gang members or former gang members for that matter?

A: Not per say [sic] that they did this or -- or but, you know, you sort of knew neighborhoods because maybe the mothers would -- would discuss it with -- with other mothers. They might have seen them at the grocery stores or something like that.

Q: All right. Well, would your -- and -- and you used the term you used I used to live in the hood.

A: Well --

Q: I understood what you were saying, in the neighborhood.

A: Well, in the neighborhood where there's -- it's still -- still is, you know, gang members of different cultures.

Q: Well, would that automatically cause you to believe or disbelieve the testimony of someone who was proven to, you know, be a gang member or gang associate or a gang or affiliated with a gang in any manner?

A: No.

Q: No?

A: No.

Q: All right. And would it affect your ability to function as a fair and impartial juror? Would it affect your ability to function as a fair and fair impartial juror?

A: No. Not at all.

(Id. at p. 511-12). The prosecutor based his strike on Irene M.'s attitude. As the United States Supreme Court has explained, "[t]he trial court has a pivotal role in evaluating Batson claims. Step three of the Batsoninquiry involves an evaluation of the prosecutor's credibility, and the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge." Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (internal quotation marks and citation omitted).

[R]ace-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g. nervousness, inattention), making the trial court's first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie peculiarly within a trial judge's province, and we have stated that in the absence of exceptional circumstances, we would defer to [the trial court].

Id. Thus, "deference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike." Id. at 479.

In Snyder, the prosecutor gave two rationales for why he had struck a potential black juror. The Supreme Court explained that the trial judge "simply allowed the challenge without explanation." Id. at 478. Thus, the Supreme Court determined that it could not presume that the trial judge credited the prosecutor's assertion that the potential black juror was nervous. See id. Unlike the situation in Snyder, the prosecutor's rationale was based on Irene M.'s attitude as she gave answers corresponding to gang and gang members which led the prosecutor to believe she had no problem with gang members. The fact that the trial judge did not specifically state that he observed or recalled the juror's demeanor in upholding the strike on Ms. Lee does not necessarily warrant federal habeas relief. See Thaler v. Haynes, 130 S.Ct. 1171, 1174 (2010) (per curiam).

Petitioner's reliance on Snyder is misplaced with respect to the strike against Irene M. In Thaler, the United States Supreme Court expressly found that no decision of the Supreme Court establishes the categorical rule that a judge in ruling on an objection to a peremptory challenge under Batson must reject a demeanor based explanation for the challenge unless the judge personally observed and recalled the aspect of the prospective juror's demeanor on which the explanation is based. See Thaler, 130 S.Ct. at 1172, 1175.

Petitioner also argues in his petition that comparative juror analysis illustrates that the prosecutor's reason for striking Irene M. was pretextual. Specifically, he argues that juror numbers 7 and 11 were similar to Irene M., yet were not struck by the prosecutor. As previously noted, "'[i]f a prosecutor's proffered reason for striking a [minority] panelist applies just as well to an otherwise - similar [nonminority] who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step.'" Kesser, 465 F.3d at 360 (quoting Miller-El, 125 S.Ct. at 2325). The following colloquy took place between the court and juror number 11:

Q: Does anyone here live in a neighborhood frequented by criminal street gangs? . . . .

A: Well, honestly, don't we all? I mean, it's almost that you can't get away from it. I don't live in the middle of it but it's always around you you know. [¶] And I grew up in -- the area I grew up it was always around. I went to high school and junior high in areas that I have that -- so -- but as far as frequented, you know, seeing on the street, no. But I would have to say I live in the area then, yeah. Q: Okay. Well, have you had any personal experience with street gangs?

A: No.

Q: All right. And would you automatically believe or automatically disbelieve the testimony of a person simply because that person may be a gang member and/or associated gangs?

A: No, sir.

Q: All right. And would that in any way affect your ability to function as a fair and impartial juror?

A: No, sir.

(Voir Dire Tr. at p. 504, 506-07.)

Additionally, the following colloquy took place between the court and juror number 7 during the voir dire proceedings:

A: The only other thing I wanted to say is I also have had -- like the drug identification -- I mean, not drug -- well, drug and gang kind of -- of classes where you learn to identify the different gangs. [¶] I do know antiodatally [sic] of the gangs. And I've had experiences where I've had to get gang members off of campus. I'm a soccer coach and occasionally we've had incidents during practice where I've had to threaten to call the police at things like that. I just wanted to the people to know that, too.

Q: Now, you indicated that you know some of the gangs. [¶] Do you know -- do you know some of these gangs by name?

A: Yeah. I -- I we don't deal with Asian boys as much. But I have a lot of antidotal evidence or not evidence, but I've heard things about them. [¶] We have -- there's a couple of Asian gangs in other area. But, you know, we talk with the principles about, you know, various gangs just so we know.

Q: Have you ever heard of JVP or Junior Viet Pride?

A: Yeah. I'm not familiar of -- with those names. Never heard of that name. Never heard that name.

A: No.

Q: Ever heard of LGC -- Little Gangster name --

A: Crip.

Q: So little Asian?

A: Yeah.

Q: By someone -- I don't --

A: Yeah.

Q: You're familiar with that gang?

A: I have heard antidotal things about them, yes.

Q: Okay. And are you familiar with the Crips?

A: No so -- crimes. We deal more narcotic zone -- problem in my area, and then we have the MOD's -- or one of the gangs that I've had to run off.

Q: Masters of Destruction?

A: Yeah.

Q: All right. Well, you know -- and -- and you heard me talk to Mr. Babcock to some extent about this. [¶] You know, based on your knowledge of gangs, is that -- is that cause you to form any strong opinion that might -- that might lead you to be unbiased or partial towards either prosecution or defense in this case?

A: Honestly not, your Honor. Because that's just a part of life down there. [¶] And, um, you know, they're kids. And, you know, that's -- just happens to them. So it's very unfortunate. But, you know, it's just part of the stuff down there.

Q: Now, once again, you -- you may hear testimony in this case about -- you may hear experts testify about gangs. You may actually hear gang members themselves testify about some aspects of the gangs. [¶] Now, if you -- if you were to serve on this jury, can you set aside your own knowledge and what you've learned about gangs and judge this case based solely on the evidence presented and the law that I give you?

A: Yes.

Q: All right. And last question along -- along those lines. [¶] Do you think that given everything you know and your background as a teacher, the things that you've learned, you know, about the gang and the area of your school, do you feel -- you think that you can be fair, impartial to both the defense and the prosecution in this case? A: I believe I can --

Q: All right.

A: -- your Honor.

(Id. at p. 838-40.)

Petitioner argues that the above colloquies between these two empaneled jurors illustrate that they each had similar attributes and knowledge of gangs such that comparative juror analysis establishes a finding of pretext with respect to the strike against Irene M. While both juror numbers 7 and 11 indicated during the proceedings some knowledge of gangs, it does not necessarily follow that they were similar to Irene M. As indicated previously, the reason for the strike against Irene M. was a demeanor-based strike, specifically the attitude the prosecutor believed she exuded with respect to gang members. That demeanor based strike is entitled to deference under these circumstances. The record does not show that Jurors 7 and 11 possessed this same demeanor with respect to gang members. Petitioner has not shown that the prosecutor's reason was pretextual.

iv. Amber D.

Next, Petitioner argues that the prosecutor's strike against Amber D. was unconstitutional as it was based on her Hispanic race. (See Pet'r's Pet. at p. 24 & Voir Dire Tr. at p. 809.) The trial court found that Petitioner had satisfied his prima facie case with respect to the strike against Amber D. (See id. at p. 813.) The prosecutor then stated the reasons for striking Amber D. which were the following:

[Amber D.], this is the individual who I have -- one, she -- there is a nephew that is doing 25 years to life for a murder charge. So this is an individual who knows the penalty for murder. [¶] And also regarding the sister-in-law, I do have a big note that there was a self-defense issue in which a relative or someone, I can't remember the -- I have the big self-defense issue highlighted. [¶] It's my -- it's my belief or at least a thought that we're going to hear some self-defense issues in this case. And I wasn't going to keep a juror who had those ties, plus a nephew who's doing 25 to life for murder.

(Id. at p. 814.) The trial court found that the prosecutor had established that these were the actual reasons for striking Amber D. (See id. at p. 817.) The California Court of Appeal agreed. During the voir dire proceedings the following colloquies took place between Amber D. and the court:

Q: All right. Now, someone in your family was arrested for a crime. It's your nephew?

A: Yes.

Q: Is that something you want to discuss in private?

A: Yes.

Q: Is that what you wanted to discuss in private?

A: Yes.

Q: Okay. All right. And your sister-in-law was a ...


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