“Third, 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.”’ [Citation.] 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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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.’ [Citation.] 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. 613.)” (Gutierrez, at pp. 1158-1159.)

The appellate court reviews the trial court’s denial of a Batson/Wheeler motion deferentially, using great restraint (Gutierrez, supra, 2 Cal.5th at p. 1159) “examining only whether substantial evidence supports its conclusions.” (Lenix, supra, 44 Cal.4th at p. 613.) Even a trivial reason, if genuine and neutral, may suffice: “A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.” (Ibid.) The Batson process is necessarily fact intensive, and many of the critical facts, such as the demeanor of an attorney or prospective juror, will not be apparent from the appellate record, which generally consists only of written transcripts. The trial court’s determinations based on demeanor and credibility are poorly suited to second-guessing on appeal. (Miller-El I, supra, 537 U.S. at p. 339.) Reviewing courts also presume that the “prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.’” (Lenix, at p. 614.)

The Batson-Wheeler Challenge

After asking the prosecutor to explain her peremptory challenges, the trial court concluded that the prosecutor’s striking of the prospective jurors was motivated by tactical reasons rather than group bias. It is therefore reasonable to infer that the trial court made an implied prima facie finding of discrimination and proceeded directly to review of the ultimate question of purposeful discrimination. (People v. Scott (2015) 61 Cal.4th 363, 387, fn. 1.) The sole question is whether the trial court correctly ruled that the defense did not satisfy its burden of demonstrating discriminatory motivation at the third stage of the Batson inquiry. (People v. O’Malley (2016) 62 Cal.4th 944, 975.)

In supplemental briefing and at oral argument, defendant persistently argues that the prosecutor and the trial court mischaracterized what Juror No. 50 said. The exchange between Juror No. 50 and the prosecutor was as follows. The prosecutor asked, “How can you tell when someone is lying to you?” Juror No. 50 responded: “. . . fortunately, that’s not my job . . . that’s left to the judges that I’m surrounded by.” In explaining her peremptory challenge, the prosecutor said, “[Juror No. 50] said that she does work for a judge and he is the one that determines whether or not someone is lying or not. She said she can’t tell if people are lying or not. That concerned me that she is not an independent thinker . . . .” The trial court repeated this phrasing, “Juror No. 50 . . . did indicate that she was not an independent thinker.” We agree that the foregoing demonstrates that the prosecutor and the trial court mischaracterized what Juror No. 50 said. However, we hold the trial court could reasonably find that the prosecutor subjectively interpreted Juror No. 50’s comment about not deciding whether a person was lying extended beyond a description of her job responsibilities to a more general discomfort about making such a determination.

We disagree with defendant that People v. Long (2010) 189 Cal.App.4th 826 is analogous. In that case, the prosecutor gave two reasons for a peremptory challenge against a Vietnamese prospective juror. The prosecutor characterized the prospective juror as “a [non]participating member of the jury” by not participating in group voir dire. The prosecutor also stated the juror was not making eye contact and demonstrated uncomfortable body language. The record showed the prosecutor’s first stated reason was inaccurate because the prospective juror had participated in group voir dire. (Id. at p. 843.) There was also no support in the record for the prosecutor’s second reason.

The Long appellate court rejected the trial court’s finding: “Doubt may undermine deference, however, when the trial judge makes a general, global finding that the prosecutor’s stated reasons were all ‘legitimate,’ and at least one of those reasons is demonstrably false within the limitations of the appellate record. A trial court ‘should be suspicious when presented with reasons that are unsupported or otherwise implausible.’ [Citation.]” (People v. Long, supra, 189 Cal.App.4th at p. 845.)

In this case there was no objectionable “general, global finding” and the prosecutor’s reasons were not demonstrably false, unsupported, or implausible — even if the prosecutor misinterpreted Juror No. 50. The present case also was not comparable to Gutierrez, in which the prosecutor used 10 of 16 peremptory challenges to remove prospective jurors who were Hispanic. The appellate court concluded the prosecutor’s explanation for one of the challenges was implausible: “It is not evident why a panelist's unawareness of gang activity in Wasco would indicate a bias against a member of a gang based in Wasco.” (Gutierrez, supra, 2 Cal.5th at p. 1169.) Here, the prosecutor’s reason for her assessment of Juror No. 50 may have been wrong but it was not utterly implausible and the trial court correctly denied the Batson/Wheeler challenge because there was no racial bias undergirding the prosecutor’s dismissal of Juror No. 50.

In summary, we conclude the prosecutor offered race-neutral reasons for striking Juror Nos. 3 and 50. The trial court also had the benefit of its contemporaneous observations of voir dire and the prosecutor’s demeanor. The court was entitled to conclude that the prosecutor struck the jurors for tactical reasons. In light of the prosecutor’s race-neutral explanations, substantial evidence supported the trial court’s denial of defendant’s Batson motion.

Comparative Juror Analysis

Finally, the Gutierrez case—recently announced by the California Supreme Court—does not require a different outcome based on comparative juror analysis. As explained in Gutierrez:

“When a court undertakes comparative juror analysis, it engages in a comparison between, on the one hand, a challenged panelist, and on the other hand, similarly situated but unchallenged panelists who are not members of the challenged panelist’s protected group. (See Miller-El II, supra, 545 U.S. at p. 241.) In this case, a comparative analysis would ask whether the prosecutor’s justification for striking one Hispanic individual applies just as well to an otherwise similarly situated non-Hispanic individual who is permitted to serve on the jury. The high court has held that comparative analysis may be probative of purposeful discrimination at Batson’s third stage. (See Miller-El II, at p. 241.) The individuals compared need not be identical in every respect aside from ethnicity: ‘A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters.’ (Miller-El II, at p. 247, fn. 6.)” (Gutierrez, supra, 2 Cal.5th at p. 1173.)

The trial court did not perform a comparative juror analysis in this case. It did not compare the two Black women jurors who were dismissed with the remaining non-Black jurors who were seated. However, Gutierrez requires the appellate court to conduct a comparative juror analysis if the record is adequate:

“The appellate court [Gutierrez] reached its erroneous conclusion by relying on an excerpt from People v. Johnson [(1989)] 47 Cal.3d 1194, 1220, which suggested that comparative analysis performed by a reviewing court is disfavored as impractical and insufficiently deferential to the trial court. But our subsequent decisions have superseded Johnson in this respect. What we held in Lenix is that ‘evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons.’ (Lenix, supra, 44 Cal.4th at p. 622, italics added.) We are mindful that comparative analysis is subject to inherent limitations, especially when performed for the first time on appeal. (Ibid.) But it was error for the Court of Appeal to categorically conclude that a court should not undertake a comparative analysis for the first time on appeal—regardless of the adequacy of the record . . . . We overrule People v. Johnson [(1989)] 47 Cal.3d 1194 to the extent it is inconsistent with this opinion.” (Gutierrez, supra, 2 Cal.5th 1150, 1173–1174.)

On appeal, defendant identifies one particular area which is subject to comparative juror analysis. In defendant’s opening brief, he points out that “the prosecutor accepted six seated jurors with law enforcement ties” but not Juror No. 50 who also had law enforcement ties. Juror No. 54, who was also Black, was one of the seated jurors with law enforcement ties. The other five seated jurors with law enforcement ties were apparently not Black. However, the record is deficient for purposes of appellate review in that it does not disclose the ethnic composition of the jury panel except for Juror Nos. 3, 50, 54, and 69, who were Black women. The latter two, of course, were seated on the jury. Defendant makes no argument about whether any other jurors could be characterized as not being “independent” thinkers like Juror No. 50.

In the respondent’s brief, the People argued that peremptory challenges may be made on an “apparently trivial” or “highly speculative” basis and “‘“without reason or for no reason, arbitrarily and capriciously.”’” (People v. Jones (1998) 17 Cal.4th 279, 294.) Furthermore, the United States Supreme Court has “recognize[d] that a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial.” (Snyder v. Louisiana (2008) 552 U.S. 472, 483; see O’Malley, supra, 62 Cal.4th at p. 976.) “The reviewing court need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment.” (Lenix, supra, 44 Cal.4th at p. 624.) Additionally, the jury panel ultimately included two Black women, one with law enforcement ties, in spite of the prosecution’s peremptory challenges.

In supplemental briefing, defendant continues to argue: “As the Gutierrez court reiterated, ‘evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons.’ (Id. at p. 29, internal quotation marks and citation omitted, emphasis added.) Undertaking the required comparative juror analysis in this case reveals that the prosecutor’s attempt to minimize or deny her preference for jurors with law enforcement ties was dishonest and insincere. (See ARB 9.) As Gutierrez explains, jurors’ law enforcement ties and the prosecution’s views on this characteristic is a relevant circumstance in conducting comparative juror analysis. (Gutierrez, supra, [2 Cal.5th] at p. 23.)”

The People agreed, subject to a qualification: “In light of the Supreme Court’s counsel, this Court should engage in comparative juror analysis to evaluate appellant’s Batson claim here. But even under such comparative analysis, the prosecutor’s justifications for striking the two Black prospective jurors withstand scrutiny because, as pointed out in the Respondent’s Brief, the prosecutor’s rationale for striking them was credible and supported by the record. The trial court, which was in the best position to make the credibility determination, so found. Appellant has failed to sustain his burden to show the prosecutor exercised any of the peremptory strikes on the basis of race.”

We do not perceive that Gutierrez calls upon this appellate court to conduct a more comprehensive comparative juror analysis on direct appeal when the analysis was not performed by the trial court and when appellate counsel identifies only two factors—the independent-thinker characterization and the law-enforcement ties—as relevant for appellate analysis. In fact, law-enforcement ties is actually the single comparative factor which has been identified by appellate counsel. Other than that, this record is not adequate for review because we do not know the ethnic composition of the jury panel except for the four Black women. Even if we were inclined to review the entire voir dire to compare with Juror No. 50, we would not be able to complete our analysis on this record which does not include the ethnic composition of the entire jury.

We agree that, in spite of Juror No. 50’s law enforcement ties, the trial could find the prosecutor had plausible subjective reasons for dismissing her as not being an “independent thinker.” In the absence of exceptional circumstances, we defer to the trial court’s ruling regarding the prosecutor’s proffered reasons for excusing the two Black jurors. (Lenix, supra, 44 Cal.4th at p. 614.)

IV

DISPOSITION

The trial court properly exercised its discretion in denying defendant’s Batson motion. We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS