Court Kern County, No. BF137853C, BF137853B, Ct.App. 5
F065984, 5 F065481, 5 F065288 Michael E. Dellostritto Judge
Concklin, under appointment by the Supreme Court, for
Defendant and Appellant Rene Gutierrez, Jr.
Ginoza, under appointment by the Supreme Court, for Defendant
and Appellant Gabriel Ramos.
J. Gray, under appointment by the Supreme Court, for
Defendant and Appellant Ramiro Enriquez.
McComb, State Public Defender, Elias Batchelder and AJ
Kutchins, Deputy State Public Defenders, as Amici Curiae on
behalf of Defendants and Appellants.
D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler and Dane R. Gillette, Chief Assistant Attorneys
General, Michael P. Farrell, Assistant Attorney General,
Daniel B. Bernstein, Eric L. Christoffersen, Rachelle A.
Newcomb and Jennifer M. Poe, Deputy Attorneys General, for
Plaintiff and Respondent.
litigants and criminal defendants are guaranteed the right to
trial by jury under the state and federal Constitutions.
Because of this, California's system of justice depends
on jurors. The mix of Californians who report for jury
service across the state changes nearly every day, but the
responsibility of courts to assure integrity in the selection
of jurors does not. We have long held that discrimination in
jury selection based on race, ethnicity, or similar grounds
offends constitutional guarantees -- and so has the United
States Supreme Court. (People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler); Batson v. Kentucky
(1986) 476 U.S. 79 (Batson).) It is not only
litigants who are harmed when the right to trial by impartial
jury is abridged. Taints of discriminatory bias in jury
selection - actual or perceived -- erode confidence in the
adjudicative process, undermining the public's trust in
courts. (Miller-El v. Dretke (2005) 545 U.S. 231,
238; Powers v. Ohio (1991) 499 U.S. 400, 412.)
jury selection proceedings at trial, defendants Rene
Gutierrez, Jr., Gabriel Ramos, and Ramiro Enriquez
(collectively, defendants) joined in a
Batson/Wheeler motion, contending that the
prosecutor had improperly excluded prospective jurors on
account of Hispanic ethnicity, after the prosecutor exercised
10 of 16 peremptory challenges to remove Hispanic individuals
from the jury panel. The trial court found that defendants
had established a prima facie case, but denied
defendants' motion after finding the prosecutor's
reasons to be neutral and nonpretextual. The Court of Appeal
affirmed defendants' convictions in all respects.
case offers us an opportunity to clarify the constitutionally
required duties of California lawyers, trial judges, and
appellate judges when a party has raised a claim of
discriminatory bias in jury selection. What we conclude is
that the record here does not sufficiently support the trial
court's denial of the Batson/Wheeler
motion with respect to one prospective juror. The error is
structural, damaging the integrity of the tribunal itself. In
addition, the Court of Appeal erred in refusing to conduct
comparative juror analysis. Defendants' resulting
convictions must be reversed.
midnight on July 30, 2011, defendant Ramos became involved in
an altercation with Clarence Langston in the parking lot of
the Western Nights Motel in Bakersfield. Ramos asked
defendants Gutierrez and Enriquez, who had been observing
from a balcony, to come down. Ramos said he was going to
retrieve a gun to defend himself, and he left the motel on
foot. Langston rode away on his bicycle.
Trevino testified that after Ramos and Langston left the
motel premises, he, along with Enriquez and Gutierrez, got
into an SUV driven by Kyle Fuller. At a stop sign, Enriquez
said, “Look, there he is, there he is, ”
identifying Langston. Gutierrez exited the vehicle,
brandished his firearm, and fired three rounds. Langston was
hit with multiple shotgun pellets and suffered nonfatal
wounds to his upper body.
prosecution's gang expert testified that defendants were
Sureño gang members, and that the shooting was
gang-related. According to the expert, Ramos was a member of
the Varrio Bakers, a Sureño gang subset based in
Bakersfield. Gutierrez and Enriquez, according to the expert,
were members of Varrio West Side Shafter, a different
Sureño gang subset based in Shafter. And Trevino
testified that he himself was member of Varrio Wasco Rifas, a
Sureño gang subset based in Wasco.
6, 2012, a jury convicted Gutierrez and Enriquez of attempted
premeditated murder (Pen. Code, §§ 664 & 187,
subd. (a)); assault with a firearm (§ 245,
subd. (a)(2)); and active participation in a criminal street
gang (§ 186.22, subd. (a)). As to those two defendants,
the jury found applicable a firearm enhancement (§
12022.53, subds. (d) & (e)(1)) as to attempted
premeditated murder, and a gang enhancement (§ 186.22,
subd. (b)(1)) as to attempted premeditated murder and assault
with a firearm. The jury deadlocked in deciding whether Ramos
committed attempted premeditated murder and assault with a
firearm, so the court declared a mistrial as to those counts.
Ramos was found guilty of active participation in a criminal
street gang, and he thereafter pleaded no contest to making
criminal threats and admitted prior convictions. Following a
bifurcated court trial, the court found true the prior strike
conviction allegations as to Enriquez and Gutierrez.
was sentenced to prison for 30 years to life, plus 27 years.
Enriquez was sentenced to prison for 14 years to life, plus
25 years. Ramos was sentenced to prison for 5 years. The
Court of Appeal consolidated the appeals for Gutierrez,
Ramos, and Enriquez. It unanimously affirmed the judgments in
three defendants are Hispanic, and they joined in a
Batson/Wheeler motion toward the end of
voir dire proceedings. The motion was brought on the basis of
asserted discriminatory exclusion of Hispanic individuals.
Although counsel for Gutierrez also commented that a
disproportionate number of strikes had been against females,
he did not do so until after the prosecutor tendered his
neutral explanations for panelists identified as Hispanic.
Even assuming that defendants properly made a motion
challenging the prosecutor's exclusion of females, the
issue is not preserved for appeal because counsel did not
obtain a ruling from the trial court. The court did not
determine whether defendants established a prima facie case
based on gender discrimination. (See People v. Lewis
(2008) 43 Cal.4th 415, 481-482 [it was “incumbent on
counsel” to secure a trial court ruling on additional
time the motion was made, the People had exercised 16
peremptory strikes -- 10 of them against individuals
identified as Hispanic, either based on appearance or
surname. The court observed that four of the
prosecutor's challenges against Hispanics were
consecutive. There were two Hispanic prospective jurors
seated on the panel at the time of the motion.
People do not dispute that the prosecutor's pattern of
challenges showed “a disproportionate number of...
peremptory challenges against Hispanics.” After finding
that defendants had established a prima facie case under the
Batson/Wheeler framework, the court asked
the prosecutor to explain the reasons for his challenges. The
prosecutor did so for each removed Hispanic panelist. The
court individually reviewed eight out of 10 proffered
justifications. The court did not individually review the
strikes of Prospective Jurors Nos. 2468219 and
2547226. Thereafter, the court made a global
finding that the prosecutor's strikes were neutral and
nonpretextual. It also found that the prosecutor “paid
the same attention to all the jurors in terms of
questioning” and “asked appropriate
questions” of all prospective jurors. The court denied
the People struck three more panelists. Defendants
individually exercised further peremptory challenges, with
counsel for Gutierrez removing one prospective juror
previously identified as Hispanic. The final jury included
one Hispanic individual. After additional voir dire, two
alternate jurors were selected. Defendants did not renew
their Batson/Wheeler motion. We granted
review on the limited issue of whether the Court of Appeal
erred in upholding the trial court's denial of
defendants' joint Batson/Wheeler
challenges are a longstanding feature of civil and criminal
adjudication. But the exercise of even a single peremptory
challenge solely on the basis of race or ethnicity offends
the guarantee of equal protection of the laws under the
Fourteenth Amendment to the federal Constitution.
(Batson, supra, 476 U.S. 79; United
States v. Martinez-Salazar (2000) 528 U.S. 304, 315.)
Such conduct also violates a defendant's right to trial
by a jury drawn from a representative cross-section of the
community under article I, section 16 of the state
Constitution. (Wheeler, supra, 22 Cal.3d
issue in a Batson/Wheeler motion is whether any
specific prospective juror is challenged on account of bias
against an identifiable group distinguished on racial,
religious, ethnic, or similar grounds. (People v.
Avila (2006) 38 Cal.4th 491, 549 (Avila).)
Exclusion of even one prospective juror for reasons
impermissible under Batson and Wheeler
constitutes structural error, requiring reversal. (People
v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)
party raises a claim that an opponent has improperly
discriminated in the exercise of peremptory challenges, the
court and counsel must follow a three-step process. First,
the Batson/Wheeler movant must demonstrate
a prima facie case by showing that the totality of the
relevant facts gives rise to an inference of discriminatory
purpose. The moving party satisfies this first step by
producing “ ‘evidence sufficient to permit the
trial judge to draw an inference that discrimination has
occurred.' ” (Avila, supra, 38
Cal.4th at p. 553, quoting Johnson v. California
(2005) 545 U.S. 162, 170.)
if the court finds the movant meets the threshold for
demonstrating a prima facie case, the burden shifts to the
opponent of the motion to give an adequate nondiscriminatory
explanation for the challenges. To meet the second step's
requirement, the opponent of the motion must provide “a
‘clear and reasonably specific' explanation of his
‘legitimate reasons' for exercising the
challenges.” (Batson, supra, 476 U.S.
at p. 98, fn. 20.) In evaluating a trial court's finding
that a party has offered a neutral basis - one not based on
race, ethnicity, or similar grounds - for subjecting
particular prospective jurors to peremptory challenge, we are
mindful that “ ‘[u]nless a discriminatory intent
is inherent in the prosecutor's explanation, '
” the reason will be deemed neutral. (Purkett v.
Elem (1995) 514 U.S. 765, 768 (per curiam)
if the opponent indeed tenders a neutral explanation, the
trial court must decide whether the movant has proven
purposeful discrimination. (See Johnson v.
California (2005) 545 U.S. 162, 168.) In order to
prevail, the movant must show it was “ ‘more
likely than not that the challenge was improperly
motivated.' ” (People v. Mai (2013) 57
Cal.4th 986, 1059.) This portion of the
Batson/Wheeler inquiry focuses on the subjective
genuineness of the reason, not the objective reasonableness.
(People v. Reynoso (2003) 31 Cal.4th 903, 924.) At
this third step, the credibility of the explanation becomes
pertinent. To assess credibility, the court may consider,
“ ‘among other factors, the prosecutor's
demeanor;... how reasonable, or how improbable, the
explanations are; and... whether the proffered rationale has
some basis in accepted trial strategy.' ”
(People v. Lenix (2008) 44 Cal.4th 602, 613
(Lenix), quoting Miller-El v. Cockrell
(2003) 537 U.S. 322, 339 (Miller-El I).) To satisfy
herself that an explanation is genuine, the presiding judge
must make “a sincere and reasoned attempt” to
evaluate the prosecutor's justification, with
consideration of the circumstances of the case known at that
time, her knowledge of trial techniques, and her observations
of the prosecutor's examination of panelists and exercise
of for-cause and peremptory challenges. (People v.
Hall (1983) 35 Cal.3d 161, 167-168 (Hall).)
Justifications that are “implausible or fantastic...
may (and probably will) be found to be pretexts for
purposeful discrimination.” (Purkett,
supra, 514 U.S. at p. 768.) We recognize
that the trial court enjoys a relative advantage
vis-à-vis reviewing courts, for it draws on its
contemporaneous observations when assessing a
prosecutor's credibility. (See Lenix, at p.
review a trial court's determination regarding the
sufficiency of tendered justifications with “
‘great restraint.' ” (See People v.
Ervin (2000) 22 Cal.4th 48.) We presume an
advocate's use of peremptory challenges occurs in a
constitutional manner. (See People v. Fuentes (1991)
54 Cal.3d 707, 721 (conc. opn. of Mosk, J.).) When a
reviewing court addresses the trial court's ruling on a
Batson/Wheeler motion, it ordinarily
reviews the issue for substantial evidence. (People v.
McDermott (2002) 28 Cal.4th 946, 970.) A trial
court's conclusions are entitled to deference only when
the court made a “sincere and reasoned effort to
evaluate the nondiscriminatory justifications offered.”
(People v. Burgener (2003) 29 Cal.4th 833, 864.)
What courts should not do is substitute their own reasoning
for the rationale given by the prosecutor, even if they can
imagine a valid reason that would not be shown to be
pretextual. “[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.... 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.” (See
Miller-El v. Dretke (2005) 545 U.S. 231, 252
Overview of Strikes
prosecutor provided justifications for strikes of 10 Hispanic
individuals. As to four of these prospective jurors -
Prospective Jurors Nos. 2647624, 2408196, 2732073, and
2632053 - the prosecutor cited as at least one reason the
fact that they were each either previously affiliated with
gangs or had family members who were at some point involved
in gang activity. The prosecutor struck Prospective Jurors
Nos. 2852410 and 2291529 because they recounted negative
experiences with law enforcement. Prospective Juror No.
2468219 (Juror 2468219) was removed because she testified
about “living in an area with a lot of gang activity,
but that she had not specifically seen, ” her brother
had been accused of a crime, and she previously served as a
juror in a criminal case that resulted in a hung jury. Below
we describe in more depth the circumstances surrounding the
strikes of the remaining three Hispanic panelists who were
the subject of defendants'
Prospective Juror No. 2723471
teacher from the City of Wasco, Prospective Juror No. 2723471
(Juror 2723471) was divorced and without children. Her former
husband was a correctional officer. She had other relatives
in law enforcement positions, including an uncle who worked
for California Highway Patrol. Neither she nor anyone close
to her had any connections to gangs.
prosecutor's colloquy with Juror 2723471, in its
entirety, was as follows:
prosecutor]: And starting with Ms. 2723471, are you gangs
[sic] that are active in the Wasco area?
prosecutor]: Do you live in the Wasco area?
prosecutor]: In Wasco itself?
2723471]: Yes, I live in Wasco.”
prosecutor indicated that his decision to challenge Juror
2723471 was “a tough one.” The reason for the
strike, he said, was that “[s]he's from Wasco and
she said that she's not aware of any gang activity going
on in Wasco, and I was unsatisfied by some of her other
answers as to how she would respond when she hears that
Gabriel Trevino is from a criminal street gang, a subset of
the Surenos out of Wasco.” The prosecutor did not
specify which of her “other answers” caused him
dissatisfaction, nor do the People identify any such
responses bearing on her possible reaction to Trevino's
testimony. We have found no other answers in the record to
support the People's position on this point.
prosecutor had broached the Wasco-related justification a few
minutes earlier, during his explanation of his strike of a
different Hispanic female, Prospective Juror No. 2408196
(Juror 2408196). He said that that panelist's unawareness
of Wasco gang activity “causes a moment of pause when
she's going to hear... Mr. Trevino freely admits that
he's a member of the Varrio Wasco.” But the
prosecutor struck Juror 2408196 because she also had an uncle
who was in a gang and had a cousin who had been
Juror 2723471, the court stated: “I checked again, and
[the prosecutor] did pass several times with Ms. 2723471
still on the panel.” The court noted that “Ms.
2723471 was excused as a result of the Wasco issue and also
lack of life experience.” Defendants argue, and the
People concede, that the court was partially mistaken: the
prosecutor had not enumerated lack of life experience as a
reason for striking Juror 2723471. Accordingly, the sole
basis relied upon by the prosecutor for striking this
particular panelist was the “Wasco issue.”
Prospective Juror No. 2547226
Juror No. 2547226 (Juror 2547226) lived in southwest
Bakersfield and worked as a service coordinator for mentally
disabled individuals. She had two children, and her
significant other was a self-employed truck driver. She had
been selected to serve on a jury a couple years earlier, but
parties reached a plea agreement. She had no gang experience,
nor any close relations with gang members.
prosecutor asked this prospective juror several questions
about the jury deliberation process and her understanding of
a juror's role. Their exchange included the following
prosecutor]: And that's sort of the functions of these
deliberations. You talk to each other, and you hear what
people hear about the evidence, and you see where everyone
is, and then ultimately you try to reach a verdict as best
you can, do you understand that?
prosecutor]: As one of 12 jurors, you would have a vote, do
you understand that?
prosecutor]: Okay. You also understand that your vote is
yours, you have a duty to listen to and talk to other jurors,
but how you vote if you're impaneled on this jury is
yours, it's your responsibility, and it's what you
believe the law that the judge gives you and the facts and
the evidence that you heard in court indicated as the truth,
do you understand that?
prosecutor]: Would you be able to do that? Would you be able
to participate in deliberations and listen to everyone else
in speaking your mind?
prosecutor]: You don't think that there's anything
about you that's differential [sic] or, you
know, want to sit in the background or listen to other
2547226]: No, I don't think so.
prosecutor]: Okay. You have no problem with speaking your
mind and ...