P. v. Nino

Filed 7/24/07 P. v. Nino CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. James M. Ideman, Judge. Reversed and remanded.

Law Offices of Dennis A. Fischer, Dennis A. Fischer and Eric S. Multhaup, for Defendant and Appellant, Joe Qusta Nino.

Gregory L. Rickard, under appointment by the Court of Appeal, for Defendant and Appellant, Miguel Torres.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Joe Qusta Nino and Miguel Torres appeal from the judgment entered after a jury convicted them of first degree murder (Pen. Code,  187, subd. (a)) and conspiracy to commit murder (Pen. Code,  182, subd. (a)(1)). During jury selection, Nino and Torres twice objected that the prosecution was exercising its peremptory challenges to eliminate women and minorities, but the trial court found no prima facie case to support their claims and denied their motions. Because six of the prosecutors seven peremptory challenges were aimed at women and minorities, and because most of her stated reasons for doing so are not adequately supported by the record, we conclude that a prima facie case existed and therefore reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

At about 9:30 p.m. on December 4, 2001, Juan Vasquez was killed by several gunshot wounds to his back and head. Joe Qusta Nino and Miguel Torres were arrested and charged with the murder even though no physical evidence or eyewitness testimony linked them to the crime.^[1] Instead, the primary evidence against Torres and Nino came from their alleged accomplice, Erick Velasquez, who was granted use immunity for his cooperation. According to Velasquez and other witnesses, he and Torres knew each other well and would often smoke marijuana together with their friends. Nino was a relative newcomer to that group. Velasquez testified that Torres enlisted Nino to kill Vasquez on Velasquezs behalf because Vasquez reneged on a promise to pay Velasquez $1,500 after damaging Velasquezs Cadillac.^[2] Velasquez claimed that he was with Torres when Torres received a page from Nino. Torres immediately phoned Nino, who reported that he had just killed Vasquez. A jury convicted Torres and Nino as charged. Nino was given a sentence of life without possibility of parole, plus another 25 years to life for his use of a firearm. Torres was given a sentence of 25 years to life for the conspiracy count. The same sentence was imposed for the murder count, but was stayed under Penal Code section 654.

During jury selection, appellants counsel twice objected that the prosecutor was exercising her peremptory challenges in order to exclude women and minorities, thereby violating their California constitutional right to a fully representative jury established by People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).^[3] Each time, the trial court found that appellants had not cleared the first required hurdle for such motions: establishing a prima facie case that unlawful discrimination had occurred.

DISCUSSION

1. The First Batson-Wheeler Motion

The prosecutors first three peremptory challenges were made as to: (1) a Black woman (juror 3043); (2) a woman of unidentified race who we presume was White (juror 1440); and (3) a Hispanic woman (juror 9131). Torress lawyer asked the court to make a finding of a prima facie case under Wheeler because three women and two minorities had been excused. After some discussion about the true ethnicity of the challenged jurors, the court said it did not even see this as coming to the stage where I have to ask the People for reasons.[^[4]] The first lady that was thrown off, in addition to her D.U.I. [] (prospective [Black] juror 3043), . . . she seemed rather slow and I wondered about her, and [] (prospective [Hispanic] juror 9131), same thing.[^[5]] But we have lots of female jurors. So it could be that in exercising a peremptory, we can have a string of males or females. I dont see anything at all that would even approach a pattern.

Ninos lawyer expressed concern because very few of the prospective jurors were minorities. The court said: Depends on what you consider minority. I see all sorts of funny names on the jury roster and names that are not typically Anglo-Saxon names. I see Oriental names. You cannot tell Blacks by their names, usually, but you can tell Orientals. I dont see anything at all. When Torress lawyer asked why the prosecutor challenged juror 3043, who worked as a postal supervisor, the court repeated that it saw no reason to require an explanation, but might do so later if necessary. Torress lawyer told the court: That is the danger. Later on there wont be any identifiable minority left. The court replied: If they exercise too many. The court told the prosecutor that if she intended to excuse other jurors who might be the subject of a Wheeler objection, then she should let defense counsel know ahead of time. The court then identified by way of example the one remaining prospective Black juror left in the jury box, juror 4356, and said if the prosecutor decided to excuse that juror to let defense counsel know in advance so the matter could be heard outside the presence of the jury. If the court believed the juror had been improperly excused, it would then most likely deny the peremptory challenge instead of excusing the entire panel and starting over.

2. The Second Batson-Wheeler Motion

The prosecutors fourth through sixth peremptory challenges were exercised against: (4)  a White man (juror 7128); (5) a woman of unidentified race who we presume was White (1201); and (6)  an Asian man (9073). Because the prosecutor intended to excuse juror 4356, the Black woman mentioned by the court during the first Batson-Wheeler motion, she asked the court and defense counsel to meet in chambers. Once there, Torress counsel objected to the proposed peremptory and said he had almost objected when the prosecutor challenged Asian juror 9073. The judge acknowledged that juror 4356 was Black, said he had his own observations about her, and did not believe a prima facie case had been made. However, the court invite[d] the People to give an explanation. Perhaps, there is something that all of us can remember from the voir dire. The court made clear that it was not finding a prima facie case of discrimination, stating that in a few cases the appellate courts indicated their appreciation where counsel layout their reasons anyway, so they can see whether or not I properly failed to find the prima facie case.

The prosecutor began her explanation by noting that appellants had not been exercising any peremptory challenges, but that there were more Black women in the jury pool and they [the defense] have up to 30 peremptories. Torress lawyer characterized that as improper and said the defense had no obligation to do so. The court agreed that was not a great defense.^[6] As to Black female juror 4356, the prosecutor said she had several reasons to exclude her. In response to a question put to other jurors about judging the credibility of witnesses, she hesitated and did not appear to have understood the question, but then said she did. This led the prosecutor to conclude that juror 4356 was slow, whereas the prosecution wanted jurors who were smart and quick in order to put together all the pieces to the evidentiary puzzle. When the juror said she understood the question but asked to have it repeated, the prosecutor concluded the juror was not being forthright and that her answers were very vague and noncommittal. The prosecutor also believed the juror had a sour look on her face and had not laughed or smiled when jokes were made, even those made by the court.

In response to that statement, the court said, I thought she [juror 4356] was a little slow myself. I had the feeling she didnt really understand some of the questions propounded by various counsel. And I thought she, frankly, mentally was a little bit slow. Torress lawyer called that a bogus excuse, complained that the juror asked to have the question repeated because it was poorly worded, and contended that juror 4356 had no difficulty answering questions posed by the court, including a definite affirmative response when asked whether she could be fair. The lawyer also noted that a White prospective juror also asked to have a question repeated.^[7]

Torress lawyer asked whether a comparison should then be made to other jurors challenged by the prosecution who were well educated or seemed mentally quick because they are now coming up with facades to try and justify throwing off a Black person, because they threw off people this morning whether or not they were slow or quick. Ninos lawyer interjected, contending that juror 7128, the White man excused by the prosecutor, was very quick. That was an example. The court declined to consider that, stating, I dont want to get into a situation to justify every juror. In every case, including this one, attorneys have excused jurors personally. If I were trying the case, I might not have excused the juror. The court then asked the prosecutor about juror 3043, the other Black woman who was excused by the prosecutor.

The prosecutor said that when juror 3043 answered questions, she actually was explaining simple things as to what she was doing, she had very bad grammar. I didnt find she was very educated in the way she was speaking. Torress lawyer interrupted, complaining the first Black woman they threw off was not smart enough, now bad grammar. The prosecutor resumed, contending that when she returned to questioning juror 3043, the juror appeared annoyed that she was being asked more questions. Kind of gave me what I took as kind like a what-do-you-want look. It was just a very annoyed appearance on her face when asked questions. [] I felt, again, she was slow to respond to the questioning. She had a very close friend of hers who had a D.U.I. within the year, so very close in time, a charged crime. . . . [] . . . She indicated that she would want to investigate the story to determine who was telling the truth. And I find to investigate the story, you are suppose [sic] to just just the way she elaborated on that I didnt find compelling that she would be seeking more that was out there rather than seeking more the evidence that was presented, that she would be searching for more. Those were the main reasons why I felt she was excused.

Torress lawyer made several points in response: (1) other prospective jurors aside from 3043 had made statements about investigating to determine credibility; (2)  mental slowness was a blatantly racial excuse; (3)  he asked whether Asian juror 9073 was not quick enough; (4)  using bad grammar as a basis to exclude jurors would keep off jurors of different social and ethnic backgrounds; and (5)  juror 3043 worked as a supervisor and her grammar skills were good enough for her to get and keep her job.

Ninos lawyer then joined in, pointing out that jurors 3043 and 4356 were the only Black women in the jury box. The prosecutor has now kicked off these two women, both who are in supervisory positions, kicked off [juror 9131] who is Hispanic. They have kicked off [juror 9073], who is Asian. They have kicked off all of the minorities off of the jury, at least that appears to be the pattern. Even though juror 4356 did not smile, Ninos lawyer said the juror was like that all the time and showed no favoritism toward either side. It would appear to me that these reasons are excuses for kicking off the two Black women on the jury. There is no question that different people have different experiences and we want all of those people with all of those experiences to sit on the jury. Its critical for our system of justice. That is what defines justice in America.

The court said that the basis for a Wheeler-type objection is when an impermissible factor such as race, sex, or ethnicity has resulted in a peremptory challenge. The test is not whether the court agrees in every case with the exercise of the challenge. I have seen a few people challenged today that I would have kept on the jury. I do see the problem with the two Black ladies that you have referred to. I have seen a lot of jurors come and go and a lot of sharp women and men of all races. And these two, frankly, did not appear to me, as counsel have said, to be up to the standard of some of the others. The others, as I say, the People possibly are a little too picky in choosing the jury, but that is their privilege. I dont see any racial component to this. I think that there are observations of both jurors, although I dont think anything about the one juror looking at the picture of counsel in the paper. . . . [] . . . But I do not see a prima facie case yet. And I decline to make such a prima facie case. And I overrule the Wheeler objection. The court agreed that no more Black jurors remained, but pointed out that juror 6559 was either Filipino or Latino of some kind. [] Apparently [juror 8730] has a Hispanic name, although she does not look typically Hispanic. But you cannot always tell the players by their appearance when you are talking about ethnicity.^[8] Prospective juror 4356 (the remaining Black woman) was then excused by the prosecutor.

3. Applicable Law and Standard of Review

Group bias is bias against members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. When a prosecutor uses peremptory challenges to strike prospective jurors because of group bias, she violates a criminal defendants right to trial by a jury drawn from a representative cross-section of the community under both the Fourteenth Amendment to the United States Constitution and article I, section XVI of the California Constitution. (People v. Bell (2007) 40 Cal.4th 582, 596 (Bell).) The federal constitutional right was established by Batson, supra, 476 U.S. 79 and the California counterpart was recognized by Wheeler, supra, 22 Cal.3d 258. (Bell, supra, at p. 596.) The right applies not only to racial and ethnic minorities, but to gender discrimination as well. (People v. Jurado (2006) 38 Cal.4th 72, 104.) The defendant need not be a member of the targeted group. (Bell, supra, at p. 597.)

When a Batson-Wheeler motion is made, the trial court conducts a three-part inquiry. First, the defendant must make out a prima facie case by showing that the totality of the circumstances gives rise to an inference of discriminatory purpose. Second, if the defendant does so, the burden shifts to the prosecution to adequately explain its peremptory challenges by offering group bias-neutral justifications for the strikes. Third, if such an explanation has been given, the trial court must decide whether the defendant has proven purposeful discrimination. (Bell, supra, 40 Cal.4th at p. 596.)^[9]

At the time of trial in February 2003, Californias courts had interpreted Batsons requirement of an inference of discrimination to establish a prima facie case to mean a showing of a strong likelihood of discrimination. (People v. Box (2000) 23 Cal.4th 1153, 1188, fn. 7; Wheeler, supra, 22 Cal.3d at pp. 280, 281.) In June 2003, our Supreme Court attempted to reconcile the two terms by holding that a prima facie case under Wheeler-Batson required a showing that it was more likely than not that group bias had motivated a prosecutors peremptory challenges. (People v. Johnson (2003) 30 Cal.4th 1302 (Johnson I).) In Johnson v. California (2005) 545 U.S. 162 (Johnson II), however, the United States Supreme Court reversed Johnson I and held that a prima facie case required no more than evidence or circumstances that gave rise to an inference of discrimination.

The trial court here said that the test was not whether it agreed or disagreed with any particular peremptory challenge, but whether impermissible factors resulted in a peremptory challenge. Even though it believed the prosecution was being too picky as to some of the other challenged jurors, it had the privilege to do so. Because the court believed the two Black jurors were mentally slow, it found no prima facie case of discrimination. This did not address appellants concerns that six of the prosecutors seven peremptory challenges had been aimed at women and minorities and did not determine whether those circumstances gave rise to an inference of discrimination. Instead, the trial courts statements suggest that it did not apply the reasonable inference standard mandated by Johnson II. Accordingly, we apply a de novo standard of review, examining the entire record of voir dire to determine the legal question whether the record supports an inference that the prosecutor excused a juror due to prohibited group bias. (Bell, supra, 40 Cal.4th at p. 597.)

4. There Was a Prima Facie Case of Group Bias

An inference is a conclusion reached by considering certain facts and deducing from them a logical consequence. (Johnson II, supra, 545 U.S. at p. 168, fn. 4; People v. Gray (2005) 37 Cal.4th 168, 186 (Gray) [discussing prima facie showing under Wheeler-Batson].) In determining whether the trial court erred in finding that no prima facie of group bias had been made, we examine the totality of all the relevant circumstances, including the entire record of voir dire of the challenged jurors. However, the other relevant circumstances must do more than indicate that the record would support neutral reasons for the questioned challenges. (Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1108 (Williams).) (Ibid.) The defense may show that the prosecutor struck most or all of the members of the identified group from the venire or has used a disproportionate number of her peremptories against the group. The defendant may also show that the challenged jurors share only one common characteristic their group membership and in all other respects are as heterogeneous as the community as a whole. The showing may be supplemented when appropriate by such circumstances as the prosecutors failure to ask the jurors anything other than desultory questions on voir dire, or to ask them any questions at all. (Bell, supra, 40 Cal.4th at p. 597.)

Appellants Wheeler motions were based on the disproportionality of the prosecutors peremptory challenges. Of her seven challenges, only one involved a White male. Five were aimed at women, two of whom were Black and one of whom was Hispanic. The sixth was aimed at an Asian man. Statistically, 71.4 percent of the prosecutors challenges were aimed at women, 57.1 percent were aimed at racial and ethnic minorities, and 85.7 percent were exercised against prospective jurors who were not White men. As a result, a jury panel that originally consisted of eight women and six men and included two Blacks, a Hispanic, and an Asian, ended up in a panel that consisted of seven White men and seven women, one of whom was an ethnic minority.^[10] Appellants contend these facts raised an inference of discrimination against both women and minorities. Case law supports their position. (Johnson II, supra, 545 U.S. at p. 173 [inference of discrimination raised when prosecutor used three of 12 peremptory challenges against the only Black jurors]; Williams, supra, 432 F.3d at p. 1107 [prosecutors use of three of first four peremptories against Blacks raised inference of discrimination]; U.S. v. Alanis (9th Cir. 2003) 335 F.3d 965, 967 [prosecutor exercised six peremptory challenges, all against men]; Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083, 1091 [inference of bias raised when prosecutor used five of six peremptories to strike Black jurors]; Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073, 1077-1080 [inference of bias found where prosecutor excused four of seven Hispanics and two Blacks].)

As just noted, that inference can be dispelled or reinforced by other relevant circumstances shown by the record of the voir dire. (Johnson II, supra, 545 U.S. at p. 168, fn. 4; Williams, supra, 432 F.3d at p. 1107; Gray, supra, 37 Cal.4th at p. 186.) Appellants contend the inference is reinforced because the prosecutor asserted false or nonsensical reasons for challenging Black female jurors 3043 and 4356, and because the trial court asked for and received no explanation as to the other female or minority jurors. (See Gray, supra, at pp. 189-192 [considering and rejecting claim that prosecutors proffered explanations were pretextual for purposes of determining whether a prima facie case existed].) For instance, the prosecutor said she excused juror 3043 in part because the juror had very bad grammar, spoke in an uneducated manner, responded slowly to questions, and indicated she would investigate on her own as a juror. As appellants point out, the voir dire record casts doubt on those assertions.

Juror 3043 said she was married, had two children, and worked as a supervisor for the United States Postal Service. Under voir dire questioning by Ninos lawyer, she said her job sometimes required her to resolve conflicts and determine who was being truthful. Asked how she resolved such conflicts, juror 3043 said, Well, I investigate the story, including all the things she had been told. She was then asked whether she would demand absolute honesty and accuracy if someone else were to investigate for her. Juror 3043 said she would because how could you come to a conclusion of who is right and who is wrong[?] Nothing in that exchange suggests that in her capacity as a juror she would have undertaken her own investigation of the evidence offered at trial. Nor did the prosecutor follow-up with any questions of her own on that topic. Finally, juror 3043s choice of words does not show bad grammar.^[11]

The prosecutor said she excused the second Black juror (4356) in part because she appeared slow. This contention was supported, the prosecutor said, by the jurors hesitation, confusion, and lack of candor when answering a question previously put to other jurors about determining witness credibility. Juror 4356 identified herself as an administrator supervisor who was married and lived in Hawthorne. The prosecutor had been asking jurors whether they would automatically disbelieve a witness who admitted having lied before, and asked one juror, Okay. And you would not automatically prejudge a witness? You would be able to listen and determine why the person did what they did? When the juror answered yes, the prosecutor asked juror 4356, . . . same question to you. How would you respond to that question? Do you understand my question? Juror 4356 answered that she understood the question but said I think you need to repeat it, though. After an attempt to rephrase drew a defense objection, the prosecutor asked: Okay. When any witness comes in and testifies, would you be able to keep an open mind or are you going to automatically believe or disbelieve a witness no matter what it is that they say? Juror 4356 replied, Ill always keep an open mind. Asked what she would look for when hearing from such a witness, juror 4356 replied, The ability to answer the question with, Im sorry, body language, consistency, eye contact. As we see it, the bare fact that juror 4356 asked to have a question repeated does not necessarily indicate a level of mental slowness that would make her an undesirable juror. Any such inference would appear to be contradicted by her prompt responses to other questions, and by the fact that when the prosecutor asked if she understood her previous question to the other juror, the prosecutor overlooked that she had in fact asked that juror two questions before waiting for an answer.

Respondent does not address these issues. Although appellants adamantly and explicitly contend that they made a prima facie case of discrimination based on discrimination against both women and minorities, respondent characterizes their arguments as based solely on the prosecutors exclusion of three female minority jurors: numbers 3043, 4356, and 9131. Respondent contends that we must review the trial courts ruling under the abuse of discretion standard, that a comparative analysis of other jurors was not required at the initial stage of a Wheeler-Batson inquiry,^[12] that the absence of a prima facie case means the prosecutors explanations for excusing jurors 3043 and 4356 should not be considered, and that [t]he record clearly supports the trial courts findings that defense counsel had failed to meet their burden of showing that a prima facie case of purposeful discrimination existed. However, respondent never tells us how or where the record does so. Instead, missing from respondents appellate brief are: an acknowledgement that we review the trial courts decision de novo because it is unclear whether the trial court applied the reasonable inference test; an explanation for limiting respondents arguments to jurors 3043, 4356 and 9131; discussion, analysis, or citation to authority as to why a statistical analysis of the prosecutors peremptory challenges does not show sufficient disproportionality to give rise to an inference of unlawful discrimination as to either jurors 3043, 4356 and 9131 by themselves, or to the six of seven jurors who were not White males; and any discussion and analysis of other matters in the record of voir dire, such as the challenged jurors voir dire answers or any other circumstances relevant to whether appellants established a prima facie case of discrimination.

In the face of such argument, we deem the issues waived. (People v. Beltran (2000) 82 Cal.App.4th 693, 697, fn. 5.) Alternatively, our independent review of the record shows that appellants did make out a prima facie case of unlawful discrimination, and that the trial court erred by denying their motion and not moving to the next two stages of a Wheeler-Batson inquiry. First, the statistical disparities mentioned above, standing alone, raise the required inference. Second, if, as respondent contends, the prosecutors explanations for excusing Black jurors 3043 and 4356 are irrelevant, then we are left with nothing to dispel the inference as to those jurors or the four others who were not White males. If, as appellants contend, the prosecutors explanations can be considered, then the apparent weaknesses of those explanations also militate in favor of finding a prima facie case. Third, apart from the fact that they were not White males, the six jurors in question appear as heterogeneous as the community as a whole. Juror 3043 was a married postal supervisor with two children. Juror 1021 was a retired teacher with five grown children, all of whom graduated from college. Juror 1440 was an airline customer service representative who was married and had one child. Juror 9131 was an implementation associate for a financial institution. She was married and had two children and three step-children. Juror 4356 was married and worked as an administrator supervisor. Juror 9037 was single and worked for the postal service. Although some had friends or family members who had been in trouble with the law, none was tainted by that fact, and none reported personal problems with the law. On this record, we conclude that the trial court erred by not finding a prima facie case.

5. Remand for Further Batson/Wheeler Proceedings Is Not Appropriate

When trial courts commit Batson error by incorrectly determining that no prima facie case of jury selection discrimination existed, the federal appellate courts routinely remand the cases to the trial courts to conduct the factual inquiry required by the second and third stages of Batson. When a California trial court commits Wheeler error, however, this states appellate courts have generally rejected that approach and simply reversed the judgments outright, usually because it was supposed the passage of time had made it difficult to reconstruct the events or allow the court to recall its observations of the jurors. (People v. Johnson (2006) 38 Cal.4th 1096, 1099-1100 (Johnson III); People v. Snow (1987) 44 Cal.3d 216, 226-227.) In Johnson III, which came upon remand from the decision in Johnson II, supra, 545 U.S. 162, our Supreme Court decided to take the federal approach and ordered a limited remand so the trial court could conduct Batsons second and third stage inquiries. Respondent urges us to apply Johnson III and order such a remand. We decline to do so.

First, Johnson III followed the federal approach because the United States Supreme Court held that federal constitutional error occurred under Batson (Johnson III, supra, 38 Cal.4th at p. 1100); it is not entirely clear that the remand procedure applies where only a Wheeler violation of California constitutional law is involved. (See id. at p. 1105 (conc. opn. of Werdergar, J.).) Second, this does not appear to be a proper case for remand.

The statutory authorization for such a procedure is found in Penal Code section 1260, which states that a reviewing court may reverse, affirm, or modify a judgment, or if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances. (See Johnson III, supra, 38 Cal.4th at p. 1100, citing Pen. Code,  1260.) Factors militating against remand include the passage of time and possible loss of memory of the relevant events. Generally, however, if there is any reasonable possibility that the parties can fairly litigate and the trial court can fairly resolve the unresolved issue on remand, reviewing courts have ordered the remand with directions that the defendant must receive a new trial if, for one reason or another, a fair hearing is no longer possible. (People v. Braxton (2004) 34 Cal.4th 798, 818-819.)

In Johnson III, the defendant argued that remand was not proper because both the trial court and the Court of Appeal drew inferences from the trial record to suggest possible race-neutral reasons for the prosecutions disputed peremptory challenges, thereby poisoning the well and making a fair hearing on remand impossible. In regard to one of three disputed peremptory challenges, the trial court remarked that the jurors answers to a jury-pool questionnaire showed she had difficulty understanding some of the issues, although her verbal responses on voir dire did not. (Johnson I, supra, 30 Cal.4th at p. 1307.) The Johnson III court believed [t]his circumstance does not make it impossible for the court on remand to judge the sincerity of any explanation the prosecutor may now make for his challenges and the overall propriety of those challenges. We are confident that the trial court can and will provide defendant a fair hearing on remand. (Johnson III, supra, 38 Cal.4th at p. 1102.)

The circumstances of this case do not inspire such confidence. In Johnson I, the trial court denied an initial Wheeler challenge without comment or request for explanation. When a second Wheeler challenge was made, the prosecution was not asked to give, and offered no explanations for, its disputed peremptory challenges. Instead, the trial court merely speculated as to why one of three jurors might have been challenged. Here, following appellants initial Wheeler motion based on the prosecutors challenges to three female jurors, the court did not ask for and the prosecution did not offer any explanation for its challenges. Instead, the trial court offered its unsolicited observation that the two jurors who were Black and Hispanic appeared mentally slow. In anticipation of a renewed Wheeler motion, the court pointed out the remaining Black juror and told counsel that any challenge to her should occur outside the presence of the jury. When that challenge occurred and an explanation from the prosecutor was requested by the court, the prosecutor said that both Black female jurors appeared to be mentally slow. Appellants contend that by doing so, the prosecutor picked up on the trial courts earlier cue and simply parroted the courts own observations. Regardless of whether or not that is so, the trial court has already indicated its belief that three of the six disputed jurors were mentally slow, calling into question its ability to reassess the situation neutrally on remand.

Furthermore, respondent conceded at oral argument that absent some further justification for challenging black jurors 3043 and 4356, the prosecutions stated reasons for doing so are insufficient as a matter of law. Respondent asks that we remand in order to give the prosecution the chance to offer additional reasons, contending that the trial courts failure to find a prima facie case eliminated the prosecutions motivation to fully state its justifications. We disagree. The prosecution offered several reasons for its challenges, but said that its main reason for challenging juror 4356 was her apparent mental slowness and that its main reasons for challenging juror 3043 were her mental slowness, her bad grammar, her close friends D.U.I. charge, and her penchant for investigating matters on her own. If those were indeed the prosecutions primary justifications for those two challenges, and if those are inadequate as a matter of law, than any conjectural back-up explanations most likely are after the fact rationalizations or would otherwise be inadequate. Ultimately we are persuaded that because respondent did not suggest on appeal that any additional reasons might exist, it is unlikely the prosecution could recall additional justifications that are legally sufficient more than four years after the fact.

DISPOSITION

For the reasons set forth above, the judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

FLIER, J.

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^[1] The information charged Nino and Torres with murder (Pen. Code,  187, subd. (a)) and conspiracy to commit murder (Pen. Code,  182, subd. (a)(1)). The information also alleged as a special circumstance that Nino killed Vasquez while lying in wait (Pen. Code,  190.2, subd. (a)(15)), and that he personally discharged a firearm when committing the murder. (Pen. Code,  12022.5, 12022.53, subds. (b)-(d).)

^[2] There was testimony from other friends or family members of the victim and from Velasquez establishing certain background facts about the parties, their relationship, and their whereabouts on the night of the murder. Because we reverse on the jury selection issue, we state the facts in less detail than usual. We will sometimes refer to Nino and Torres collectively as appellants.

^[3] Even though defense counsels objections were based solely on Wheeler, they are construed to include the counterpart federal constitutional right established by Batson v. Kentucky (1986) 476 U.S. 79 (Batson). (People v. Lancaster (2007) 41 Cal.4th 50, 73.)

^[4] On appeal, respondent does not challenge appellants characterizations of any prospective jurors race or ethnicity.

^[5] The court was wrong when it said juror 3043 had been charged with driving while intoxicated. Instead, in response to a question asked of all prospective jurors, juror 3043 said someone close to her had been convicted of the offense one year earlier. The case went all the way through the court system. Juror 3043 did not go to court with the defendant, believed the defendant was treated fairly by the police and the court, and said nothing about the case led her to favor one side or the other in this case. We will discuss in more detail post certain relevant portions of the voir dire of that juror and another female Black juror who was peremptorily challenged by the prosecutor, and explain why the prosecutors characterizations of those two jurors voir dire statements appear to be inaccurate. In this section and the next, however, we will simply set forth the courts and the prosecutors statements.

^[6] The apparent import of the prosecutors statement was that the defense could exercise its peremptory challenges to exclude Caucasians in order to ensure that more minorities made it on to the jury. We cannot tell from the cold record whether that remark was made tongue-in-cheek. If so, it was a poor attempt at humor. If not, then it was clearly improper for the prosecutor to suggest that the defense could exercise its peremptory challenges against Caucasians in order to ensure that Black women remained in the jury pool.

^[7] The prosecutor also complained that juror 4356 had seen Torress lawyer reading a favorable newspaper article about himself and appeared to be interested by it. The court rejected that complaint as insignificant.

^[8] Juror 6559 was selected for the jury but later excused for cause, an issue that Torres raises on appeal as a separate ground for reversal. In his appellate reply brief, Torres characterizes juror 6559 as having ethnic minority status, so we assume that the jury as originally empanelled included one ethnic minority member.

^[9] Even though the trial court asked the prosecutor to explain the disputed peremptory challenges, because the trial court specifically declined to find a prima facie case of Wheeler error, we will not imply that the court found a prima facie case and then proceeded to the next two steps of the inquiry. Instead, the issue of whether the trial court erred in finding no prima facie case is preserved for our review. (People v. Welch (1999) 20 Cal.4th 701, 745-746.)

^[10] The trial court intended to designate two of those 14 jurors as alternates once the case went to the jury. Two jurors were eventually excused for cause, including female juror 3638, and the only minority member of the jury, female juror 6559. As a result, the jury that actually considered the evidence and reached a verdict had no minorities. We do not consider the for cause excusals in our analysis. See footnote 8, ante.

^[11] In fact, our review of the record shows that Juror 3043 displayed appropriate grammar and gave concise answers that were to the point. Asked to describe her general background and previous jury experience, she said: My name is [redacted]. I live in Torrance. I am a supervisor at the postal services. Im married. My husband works for the postal service. I have two kids. One works at a record company and the other one goes to school. And I have prior experience, civil court. Asked whether she or anyone close to her had been charged with a crime, juror 3043 said yes. Asked what the situation was, she answered, A D.U.I. Asked whether it was her or someone close to her, she answered, Someone close to me. Asked how long ago that occurred, she answered, A year. At most, her syntax displays the informality that is typical of conversational English. It is not, however, even remotely close to very bad grammar, as claimed by the prosecutor.

^[12] We do not factor appellants comparative analysis claims into our analysis, but do note that such comparisons are properly considered on appeal if they were raised in the trial court as part of a defendants effort to establish a prima facie case under Wheeler-Batson. (People v. Cornwell (2005) 37 Cal.4th 50, 71.)