California Court of Appeals, Second District, Seventh Division
[As modified Feb. 9, 2015.]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA389575 Jose I. Sandoval, Judge.
[Copyrighted Material Omitted]
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Richard Ray Cisneros appeals from the judgment entered following his conviction by a jury of two counts of making a criminal threat against Ebony Pitts. Cisneros contends the trial court erred in denying his Batson/Wheeler motions arguing the prosecutor failed to rebut his prima facie showing she had discriminated against men in exercising peremptory
challenges during jury selection. Because the prosecutor's explanation she simply preferred the next prospective jurors, offered without identifying any characteristics of the men being excused, was not a nondiscriminatory justification, we reverse the conviction and remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Cisneros was charged by information with two counts of making a criminal threat against Pitts (Pen. Code, § 422) (counts 1 and 2),  one count of failure to register as a sex offender (§ 290, subd. (b)) (count 3) and one count of sexual intercourse with a minor, Pitts (§ 261.5, subd. (c)) (count 4). The information specially alleged, as to count 1, Cisneros had personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)); as to counts 1 and 2, Cisneros had suffered a prior serious felony conviction (§ 667, subd. (a)(1)); and, as to all counts, Cisneros had suffered one prior serious or violent felony conviction within the meaning of the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Cisneros pleaded not guilty and denied the special allegations.
2. Summary of Evidence Presented at Trial
a. The People’s evidence
i. Pitts’s preliminary hearing testimony
After the trial court found Pitts was unavailable to testify at trial, it permitted her preliminary hearing testimony to be read to the jury. Pitts had testified she met Cisneros in 2010 when she was 17 years old and he was 36 years old. Pitts told Cisneros her age before they had sex four days after they had met.
In May 2011 Cisneros and Pitts were engaged and living together with their infant son. On the evening of May 23, 2011 Cisneros and Pitts were arguing when Pitts’s sister called. After Pitts told her sister she and Cisneros were arguing, Cisneros became enraged that Pitts was “telling everybody our business” and took a 12- to 14-inch butcher knife out of the kitchen ...