Filed 3/13/18 P. v. Malek CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
JANE MALEK,
Defendant and Appellant.

A147893

(Contra Costa County
Super. Ct. No. 5-151097-3)


INTRODUCTION
Defendant Jane Malek was convicted of felony arson. She raises one issue on appeal: whether the court erred in denying her Batson/Wheeler motion. We conclude there was no error, and affirm.
BACKGROUND
We set forth the factual background to the limited extent necessary to address the sole issue on appeal.
During voir dire of the prospective jurors, the prosecutor excused one African-American woman. During voir dire of the prospective alternate jurors, the prosecutor excused two African-American men. The defense attorney made a Batson/Wheeler motion. The court asked the prosecutor if she had “a response to the situation,” and she responded “Yes. I would like to respond for the record, and let me just be very clear, I’m stating this for the record, not because Your Honor has made a prima facie showing, but because I will insulate my record for future appellate reasons.”
The prosecutor went on to explain why she had challenged the three prospective jurors. “The first woman of the class that [the defense attorney] has challenged . . . was an attorney with over 21 years of experience in labor and employment. She mentioned that she was married and had a husband who worked with unions. I decided to kick her, not for a racial reason, but because, much like many other attorneys, one a white male that I kicked off the jury, has extensive experience, and I think could unfairly judge me in—and compare my level of experience to her own.”
“As for Mr. [C.], who was the second person noted by the Court that he was an African[-]American, he did mention that he was a retired plumber. When I had––written on my notes that when Juror Number 13, who was excused, . . . was discussing how people are often in prison unlawfully, I noticed that Mr. [C.] was nodding his head in agreement, and I jotted that down. [¶] I noted that he had some problems with the conception of the Billy in the pool example [about circumstantial evidence], so the problems with circumstantial evidence versus direct evidence. Although he did . . . ultimately . . . not to rise [to the] level [of] for cause, he did certainly ultimately say that he would be able to follow the rules. I did sense some hesitancy in his truly not holding me to a higher burden and not expecting more proof other than what was discussed in the Billy in the pool hypothetical.” Indeed, in voir dire, Mr. [C.] indicated he would require the prosecutor to present DNA evidence to prove Billy was in the pool in the hypothetical.
Regarding the third challenged prospective juror, the prosecutor explained “As for Mr. [G.], I noted his extensive discussion about being arrested, how that perhaps jaded his experience. Though he didn’t say necessarily that he would hold it against me personally, certainly I think one can understand that was a very frustrating situation. [¶] He also had a problem with the circumstantial evidence, and at certain points in time was turning, when he had the microphone, and he was speaking directly to [the defense attorney], was discussing the principles about people often being in prison without—I don’t know his exact word, but being in prison without—I don’t want to misquote him. He had certain problems with the whole presumption of innocence and people that—who may have been punished unfairly. [¶] I also noted that for Mr. [G.], he did have problems with circumstantial evidence as well. He had mentioned wanting some possible additional evidence other than what was discussed with the Billy and the pool [hypothetical], and, I think, would not be able to follow the circumstantial evidence instruction. [¶] And for the record, I would also note that this is a very circumstantial-type case, as there [are] no eye witnesses. So I do have a belief that [the challenged male prospective jurors] would have had problems in applying that, which is why I exercised my peremptory challenge.”
Following the prosecutor’s statement of reasons for striking the three African-American jurors, the trial court denied the motion, stating, “I think sufficient justification has been provided here.”
DISCUSSION
The Trial Court Did Not Err in Denying Defendant’s Batson/Wheeler Motion
Our Supreme Court recently “clarif[ied] 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.” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1154.) The high court stressed that “the ultimate responsibility of safeguarding the integrity of jury selection and our justice system rests with courts.” (Id. at p. 1175.) “At 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. [Citation.] Exclusion of even one prospective juror for reasons impermissible under Batson and Wheeler constitutes structural error, requiring reversal.” (Id. at p. 1158.)
“When a 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. . . . [¶] Second, 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.’ [Citation.] . . . ‘ “[U]nless a discriminatory intent is inherent in the prosecutor’s explanation,” ’ the reason will be deemed neutral. [Citation.] [¶] Third, if the opponent indeed tenders a neutral explanation, the trial court must decide whether the movant has proven purposeful discrimination. [Citation.] In order to prevail, the movant must show it was ‘ “more likely than not that the challenge was improperly motivated.” ’ ” (Gutierrez, supra, 2 Cal.5th at p. 1158.)
The third-step of the analysis “focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] . . . 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.” ’ [Citation.] 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. [Citation.] 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.” (Gutierrez, supra, 2 Cal.5th at pp. 1158–1159.)
“We review a trial court’s determination regarding the sufficiency of tendered justifications with ‘ “great restraint.” ’ [Citation.] We presume an advocate’s use of peremptory challenges occurs in a constitutional manner. [Citation.] When a reviewing court addresses the trial court’s ruling on a Batson/Wheeler motion, it ordinarily reviews the issue for substantial evidence. [Citation.] 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.’ ” (Gutierrez, supra, 2 Cal.5th at p. 1159.)
“ ‘At the third stage of the Wheeler/Batson inquiry, “the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible.” ’ ” (People v. Winbush (2017) 2 Cal.5th 402, 434 (Winbush).) “[T]he trial court must determine whether the advocate allowed his or her calculus to be infected by racial bias and then lied to the court in an attempt to get away with it.” (People v. Lenix (2008) 44 Cal.4th 602, 626 (Lenix).)
We need not address the first step of the analysis. Although the trial court did not conclude defendant had made a prima facie case, it asked the prosecutor if she had “a response to the situation.” The prosecutor proceeded to offer a race-neutral explanation for the challenges, even though she stated she believed no prima facie case had been shown. “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” (Hernandez v. New York (1991) 500 U.S. 352, 359.)
Thus, we look to the second step of the analysis, and consider whether the prosecutor provided an adequate nondiscriminatory explanation for the challenges.
As to the sole African-American woman challenged, the prosecutor explained the prospective juror was an attorney with over 21 years of experience in labor and employment, and that her husband worked with unions. The prosecutor, noting she had also challenged a white male attorney for this reason, felt the prospective juror “could unfairly judge me . . . compare my level of experience to her own.” Although a third white female attorney had not been challenged, she had limited experience, had never appeared in court as an advocate, and worked in a dual attorney/management role.
Discussing the first of the male African-American jurors challenged, the prosecutor explained the prospective juror had nodded his head in agreement with another ultimately dismissed juror when he stated “people are often in prison unlawfully.” The prosecutor also believed the prospective juror “had some problems” with her hypothetical about circumstantial versus direct evidence, and believed he showed “some hesitancy in . . . truly not holding me to a higher burden and not expecting more proof.” Indeed, the prospective juror initially stated, in regard to the hypothetical, that he would require the prosecution to present DNA evidence showing “Billy” was in the pool.
As to the third challenged African-American juror, the prosecutor noted there was an “extensive discussion” about the juror being arrested, which she felt “perhaps jaded his experience.” That prospective juror indicated he had been wrongfully charged with a crime, and the charges were eventually dropped after a number of court appearances. He had been arrested, strip-searched, and falsely accused based in part on a police report that was “80 percent . . . false.”
The record demonstrates that the prosecutor’s reasons for challenging the three jurors were all facially neutral. “[T]he second stage of the Batson/Wheeler framework ‘does not demand an explanation that is persuasive, or even plausible.’ . . . [T]he issue is the facial validity of the prosecutor’s explanation.” ’ ” (Gutierrez, supra, 2 Cal.5th at p. 1168.)
We thus proceed to the third stage, where “ ‘ “the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible.” ’ ” (Winbush, supra, 2 Cal.5th at p. 434.) Defendant maintains “the prosecutor’s reasons do not hold up to scrutiny and the trial court failed to discharge its duty to carefully evaluate the prosecutor’s explanations.”
“As a reviewing court, we presume the advocate uses peremptory challenges in a constitutional manner, and defer to the trial court’s ability ‘to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.’ ” (Lenix, supra, 44 Cal.4th at p. 626.) “Some neutral reasons for a challenge are sufficiently self-evident, if honestly held, such that they require little additional explication. . . . [W]hen it is not self-evident why an advocate would harbor a concern, the question of whether a neutral explanation is genuine and made in good faith becomes more pressing.” (Gutierrez, supra, 2 Cal.5th at p. 1171.) We defer to the trial court’s conclusions “when the court made a ‘sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.’ ” (Id. at p. 1159.)
The trial court made a sincere and reasoned effort to evaluate the prosecutor’s justifications. It noted certain issues with the prosecutor’s “Billy in the pool” hypothetical, and indicated it was “a little uncomfortable” with that hypothetical being the “litmus test” for whether the prospective jurors understood the circumstantial evidence instructions. Nevertheless, the court did not conclude the prosecutor’s reasons were sham excuses. The court specifically noted Mr. G’s “experience was particularly egregious in nature, in terms of not only, it appears, that he was falsely arrested, but lied to at the scene, and subsequently lied to at the station when they booked him. And then on top of that . . . according to him, police reports were fabricated against him, and yet the district attorney still went ahead and charged the case. . . .” Thus, it denied the motion, concluding “sufficient justification has been provided here.”
We conclude the trial court met its obligation to make a sincere and reasoned effort to evaluate the prosecutor’s nondiscriminatory justifications and that defendant has failed to show it was “ ‘ “more likely than not that the challenge was improperly motivated.” ’ ” (Gutierrez, supra, 2 Cal.5th at p. 1158.)
DISPOSITION
The judgment is affirmed.






_________________________
Banke, J.


We concur:


_________________________
Humes, P.J.


_________________________
Margulies, J.