Filed 8/28/26 P. v. Brooks CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A171242
v.
BIANCA BROOKS, (San Francisco City & County
Super. Ct. No. 23008972)
Defendant and Appellant.
Bianca Brooks was placed on probation after a jury found her guilty of
carjacking, false imprisonment, unlawful driving or taking of a vehicle, and
child endangerment. On appeal, she contends her convictions must be
reversed because she is a transgender woman and one of the jurors concealed
information during voir dire indicating that juror’s bias against transgender
people, as revealed in the juror’s comments to the court and counsel after the
jury was sworn that he believed the process of jury selection had been biased
against Asian prospective jurors. The court denied Brooks’s subsequent
motion to excuse the juror for cause, finding that the juror did not conceal
information sought in voir dire or that showed a likelihood that he was biased
against transgender people. We see no error in that determination and
therefore affirm the judgment.
BACKGROUND
I.
Brooks was charged by information with kidnapping two people during
a carjacking (Pen. Code,1 § 209.5, subd. (a)); carjacking (§ 215, subd. (a)); two
counts of kidnapping (§ 207, subd. (a)) with an allegation that one of the
victims was under 14 years old (§ 208, subd. (b)); child endangerment (§ 273a,
subd. (a)); assault with a deadly weapon (a car) on a third victim (§ 245,
subd. (a)(1)); two counts of felony false imprisonment (§ 236); unlawful
driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); and leaving the
scene of an accident (Veh. Code, § 20001, subd. (a)).
At trial, the victims testified that Brooks jumped into the driver’s seat
of a car that was idling and unlocked outside of a fast-food restaurant. A
woman and her 9-year-old son were asleep in the back seat. As Brooks was
driving, she yelled for the woman and child to get out of the car but they
could not do so safely because the car was moving. The third victim gave
chase around the block. When he caught up to the car, he opened the driver-
side door and tried to pull Brooks out of the car, but she stepped on the
accelerator and drove away. Brooks crashed the car a short distance later.
The woman and her child suffered injuries in the crash. After attempting to
run away, Brooks was arrested at the scene.
Brooks testified that at the time of the incident she was a sex worker.
When she jumped into the idling car, she was attempting to flee following a
violent encounter with a client. She did not know the car was occupied and
stopped after a few blocks to let the people out. She sped away when a man
attempted to open the driver-side door and began punching her through the
1 Undesignated statutory references are to the Penal Code.
2
window. After the crash, the man began attacking her again, so she
attempted to run away, but he chased her.
The jury found Brooks guilty of carjacking (§ 215), unlawful driving or
taking of a vehicle (Veh. Code, § 10851, subd. (a)), and two lesser included
offenses of false imprisonment (§ 237, subd. (a)) and misdemeanor child
endangerment (§ 273a, subd. (b)). The court suspended imposition of
sentence and placed Brooks on formal probation.
II.
The following additional background information frames our discussion
of Brooks’s misconduct claim. At the start of voir dire, the trial court
instructed the prospective jurors on bias against transgender persons: “You
learned in the questionnaire that Ms. Brooks is a transgender woman.
Again, not surprising. There’s an array of familiarity with transgender
people, an array of comfort level, array of thoughts. [¶] Well, here’s the rule
in this courtroom, as required by California law, unequivocally: There’s no
discrimination based on gender identity, gender expression, should a choice
or non-choice to be transgender. [¶] Ms. Brooks is entitled to the same fair
and impartial trial that every one of us is. No less. And if you can’t do that,
again, you’re not eligible to be a juror here. [¶] But I would suggest to you
that that’s just basic human dignity. We treat everybody with respect and
courtesy and treat them all as equal, before the law. That’s what is our
constitution—equal protection clause in both the federal and state
constitutions. [¶] That is—it took a while for our country to get there, but
that is now the founding principle of our country. It’s always been the
founding principle, it just wasn’t followed for many, many years. [¶] But
now, it’s followed. Everyone needs to be treated with respect, with dignity,
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with fairness and impartiality. And for some reason, if you can’t do that, you
need to let us know.”
During voir dire, defense counsel asked the prospective jurors questions
to uncover possible unconscious bias against transgender people. He
explained, “I am going to be asking some different questions than [co-counsel]
just asked. One question in particular is—as everyone knows by reading the
fact pattern, in some of our discussions, along with Judge Kahn—that Ms.
Brooks is a transgender woman. [¶] And some of you expressed some—some
non-familiarity with individuals who are transgender. Some of you do, sort
of, 3 degrees of separation know individuals who are transgender or know of
individuals who are transgender. [¶] And when we talk about unconscious
bias, the thing that we try to focus on is will that feeling about someone who
may be different than us—and we’re all in this room we’re all different in
some form or fashion. [¶] And so will that difference cause us to, kind of,
influence how we see a case?”
The trial court later discussed the concept of unconscious bias with the
potential jurors: “[W]e, as judges and lawyers, are making a serious effort to
root out bias in every form, including what sometimes is referred to as
unconscious bias or implicit bias because studies have shown every one of us
have biases. . . . [¶] So the way to remedy that is to acknowledge that we all
have biases and do our best to set them aside. [¶] Bias can affect what we
notice and pay attention to, what we see and hear, what we remember, how
we perceive people, and how we make decisions. We may favor or be more
likely to believe people who we see as similar to us or with whom we identify.
[¶] Conversely, we may disfavor or be less likely to believe people whom we
see as different. [¶] Although we are aware of some of our biases, we may
not be aware of all of them. We refer to these biases as implicit or
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unconscious, maybe based on stereotypes—they often are based on
stereotypes—we would reject if they were brought to our attention.
[¶] Implicit or unconscious biases can affect how we perceive others and how
we make decisions without our being aware of their effect. [¶] Is there
anyone in the jury box who believes that they may have an implicit or
unconscious bias that would affect their ability to be a fair and impartial
juror in this case? No answer. [¶] If you later realize that you have one, you
must bring it to my attention immediately. It’s part of rooting out what is
illegitimate in a trial, and it’s part of trying to deal with making the system
fairer and better for all of us. [¶] Anybody unable or unwilling to let me
know immediately if you identify any such bias in yourself? No answer.”2
As relevant here, during voir dire, three prospective jurors, whom the
parties have identified as of Asian descent, were excused. Prospective Juror
No. 18 and Prospective Juror No. 16 were excused by the court. During voir
dire, Prospective Juror No. 18 indicated that she believed that if charges
were brought against someone, they were guilty and that she did not trust
defendants who do not testify. Prospective Juror No. 16 indicated that she
would change her opinion if someone who is older than her disagreed with
2 The trial court’s comments here were not made specifically with
reference to the fact that Brooks is transgender. The discussion of
unconscious bias was the last in a list of what the court described as “rules of
law,” which included that (1) jurors must use any specific definitions supplied
by the court rather than the everyday meaning of words; (2) neither side is
required to call all witnesses who may have information about the case;
(3) the testimony of only one witness can prove any fact; (4) jurors may not
use or consider anything they have seen on a TV show or movie or any other
place in considering their decision; (5) facts may be proved by circumstantial
evidence; (6) criminal liability requires a finding of both act and wrongful
intent; and (7) when it comes to circumstantial evidence if there are two
reasonable conclusions, one of which points to innocence and one of which
points to guilt, jurors must follow and apply the one that points to innocence.
5
her because she did not “feel comfortable disagreeing with someone of higher
authority.”
Prospective Juror No. 13 was excused on a peremptory challenge by
defense counsel. Prospective Juror No. 13 answered “yes” to a question on
the jury questionnaire about whether there was anything about Brooks being
a transgender woman that might affect his ability to serve as a juror in this
case. When asked during voir dire about his answer to that question, he
explained, “So what I don’t understand is why would somebody do something
like that to hisself. And so, again, I don’t understand how I’m going to be—if
I had to be in contact with that person, I’m not quite sure how I’m going to
react to that.” When defense counsel asked if he could be a fair and impartial
juror, he explained that he would try his “best to be fair” but stated that the
question on the questionnaire “wasn’t asking whether I would be fair or not”;
it was whether he would be “comfortable with” Brooks being transgender.
The court agreed that the juror’s interpretation of the question in the
questionnaire was “fair” and added, “it also sounds like you understand that
this case is not about why Ms. Brooks is a transgender woman. [¶] . . .[¶] It’s
that she is a transgender woman, and she is entitled to a fair and impartial
trial. [¶] . . .[¶] And you understand they’re different questions, and you
have no problem with the latter question?” Prospective Juror No. 13
responded, “I have no problem giving her a fair trial. But the question was
not asking that.” Later in voir dire, Prospective Juror No. 13 was asked
about his answer on the questionnaire that he agreed somewhat with the
statement that “[b]eing transgender is a mental illness.” In response, he
repeated his prior answer that he just did not “understand why would
somebody do something like that to their—he or herself. It’s something—
you’re born with like that. You’re fine. You’re perfectly fine. [¶] But if I
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have to—I mean, I haven’t had contact with a person like that. I—and I don’t
have a friend like that. I don’t—like I said before, I don’t even know how I’m
going to react to that if I have to sit next to them or talk to them.” He added
that while he did not want “to sit down here with that mentality,” he would
“try [his] best to put away that belief” and believed he could be impartial. “I
will give her a fair trial. I can be fair and impartial with that, if I’m selected.
Totally fine with that.”
Juror No. 2 did not discuss any potential bias against transgender
people during voir dire. After the jury was selected, he requested to speak
with the court. With counsel present, he stated, “So I have an observation
about jury selection, how it’s gone. And I don’t think it affects justice in this
case, and it might just be how it goes. But it seems to me jury selection is
biased against Asians. I’ll give you some examples. [¶] So yesterday a
woman said, ‘I think if you’re—if you’ve been arrested, you’re likely to have
been guilty—you probably did something.’ Right? [¶] And the lawyers,
understandably, went after, like, well, I think that’s a presumption of guilt,
based on arrests. And I don’t want that kind of bias. [¶] But I think what
she was saying was, like, arrests aren’t random, you know. You took
100 arrests and 100 random people, the arrest rate probably has a higher hit
rate of people who were doing something, whether they were guilty of a crime
or not. And it [sic] I think the questions addressing her were inaccurate—
were questions in the wrong direction.” He continued, “Similar today, the
woman sitting in this chair says, ‘I think I might be persuaded by someone
who I thought was more intelligent or more educated.’ [¶] Like, of course,
she would. Right? Everybody would. But I think the questions sort of went
after, ‘Well, I think you are, you know, you could be persuaded against your
opinion,’ or, ‘You could be doing something against what you believe, and I
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don’t want you on the jury.’ [¶] And I think those are both Asian points of
view, and I think they’ve been basically not addressed.” Finally, he said,
“Same with the person who says, like—the people who said ‘I don’t
understand transgender. I don’t understand why someone would do that.’
[¶] Okay. That doesn’t mean they can’t—gender’s not on trial, you know?
And so there’s a lot of Asians who would say, ‘I don’t understand
transgender,’ but that’s not going to affect their judgment about justice, and I
think the questions were about the wrong thing.”
When questioned by counsel, Juror No. 2 indicated that he did not find
either the defense or the prosecution more at fault for what he characterized
as the attorneys’ “unconscious bias” against Asians. He said, “I think you’re
all pretty much the same on this.” Juror No. 2 also affirmed that his
observations would not impact Brooks “in any way.”
Thereafter, defense counsel requested that the court excuse Juror No. 2
for cause. Counsel argued, among other things, that he was concerned that
the juror would not be fair and impartial because “the way he phrased his
objection was that those opinions are, at least, widely shared by people of
Asian descent. And it at least—at least raises the inference that he might
share those and didn’t express those and thought they were not a rightful
reason for someone to be excused from jury duty.”3 The court refused to
excuse the juror at that time but invited the parties to submit additional
written argument on the issues.
After considering the additional authorities cited by the parties, the
court issued a tentative decision denying the request to excuse Juror No. 2.
3 Defense counsel also argued that the juror should be excused because
the examples he raised came from the voir dire by defense counsel and thus
reflected possible bias against the defense. Brooks has not reasserted this
argument on appeal.
8
In it, the court found that Juror No. 2 had not “conceal[ed . . . ] information
that was sought in voir dire.” The court explained that his “disclosures were
limited to his observations of what he perceived as unconscious bias
embedded in certain questions posed to other jurors” which “had no
relationship to his own personal experiences.” His disclosures, the court
added, “were intended to eradicate unconscious/implicit bias and cannot
fairly be ascribed to any reasonable possibility, much less likelihood, of
unconscious bias on his part.”
Brooks objected to the tentative decision, arguing that “bringing up
those examples in the context of saying that they were either wrongfully
excused or excused because of unconscious bias . . . reflect[s] on [Juror
No. 2’s] ability to be a fair and impartial juror to Ms. Brooks, who’s a trans
woman.” Defense counsel later clarified that his claim is that Juror No. 2
failed to disclose “that he thinks either that transphobia is okay or it’s not a
reason to excuse someone as a juror or any sort of statement like that prior to
him being sworn. [¶] So I do think . . . it’s concealment because he could
have raised this earlier. And there were plenty of questions about
transgender. Your Honor, when we came back that morning, talked about
unconscious bias. And if . . .[he] had an issue with that instruction, he could
have brought it up then and said that ‘Well, I think it’s unconscious bias to
kick jurors who don’t agree or don’t believe in transgender people or think
that they’re doing something to themselves,’ as one other juror said.”
The prosecutor disagreed. He argued, “I think that what Defense
[counsel] is doing is reading too far into [the juror’s] answers. I don’t think it
implies that he holds those beliefs, more so I think that he understands
certain sentiments in the community, and he was—and I think that he was
just interpreting that understanding towards their beliefs but not his own.”
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After argument, the court denied the motion. The court explained, “I
don’t think Juror No. 2’s comments did reflect on his unconscious bias or on
his—or was in any way suggestive, much less strongly suggestive, that his
explicit statements that he could be a fair and impartial juror should not be
accepted. And so I do accept what he said. [¶] I don’t think that he has said
anything that would strongly suggest or even suggest an unconscious bias in
this case. Certainly, I don’t believe anything he said suggested an
unconscious bias against transgender people. And for that reason, I’m
denying the Defense motion.”
DISCUSSION
I.
“The law concerning juror concealment is settled. . . . ‘[An] accused . . .
has a constitutional right to a trial by impartial jurors. [Citations.] “ ‘The
right to unbiased and unprejudiced jurors is an inseparable and inalienable
part of the right to trial by jury guaranteed by the Constitution.’ ” ’ ”
(In re Manriquez (2018) 5 Cal.5th 785, 797 (Manriquez).) “If a juror actively
conceals factual information or falsifies voir dire responses, the process of
selecting jurors is undermined.” (People v. Wilson (2021) 11 Cal.5th 259,
310.)
Under section 1089, the trial court may remove a seated juror if the
juror “upon other good cause shown to the court is found to be unable to
perform his or her duty.” A juror’s prejudicial concealment of bias during voir
dire supports the discharge of a juror under section 1089.
In the trial court, the defendant “bears the initial burden of showing
that a juror did not disclose requested material information. If such a
nondisclosure is shown, a presumption of prejudice arises.” (Manriquez,
supra, 5 Cal.5th at p. 798.) The prosecutor has the burden of rebutting the
10
presumption “ ‘by establishing there is “no substantial likelihood that one or
more jurors were actually biased against the defendant.” ’ ” (Id. at p. 797,
italics omitted.) “Whether any nondisclosure was intentional is not
dispositive.” (Id. at p. 798.) “An intentional concealment is strong proof of
prejudice, while a showing that the nondisclosure was unintentional may
rebut the presumption of prejudice. . . . [A]n unintentional nondisclosure
may mask actual bias, while an intentional nondisclosure may be for reasons
unrelated to bias.” (Ibid.) The relevant question is “ ‘not whether the juror
would have been stricken by one of the parties, but whether the juror’s
concealment (or nondisclosure) evidences bias.’ ” (Ibid.) “A trial court has
the discretion to determine whether a juror’s ‘ “failure to disclose is
intentional or unintentional” ’ and whether the juror is biased.” (People v.
Wilson, supra, 11 Cal.5th at p. 310.)
On appeal, we consider the entire record, including the nature of the
nondisclosure and its surrounding circumstances, to determine if there is a
substantial likelihood that the juror in question was actually biased against
the defendant. (People v. Merriman (2014) 60 Cal.4th 1, 95.) In conducting
this review, we accept the trial court’s credibility determinations and findings
on questions of historical fact if supported by substantial evidence, and
independently apply the law to those historical facts. (Id. at pp. 95–96;
People v. Wilson, supra, 11 Cal.5th at p. 310 [“[w]e accord deference to any
credibility determination made by the trial court in its evaluation of
concealment”].) “Unless the record clearly demonstrates a juror’s bias, the
trial judge is best situated to evaluate a juror’s intentions through the voir
dire process.” (Wilson, at p. 310.)
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II.
We begin with a review of Brooks’s principal arguments and the
Attorney General’s responses.
A.
Brooks contends that Juror No. 2 concealed that “he self-consciously
rejected the validity of unconscious bias in relation to a transgender
defendant’s right to obtain an unbiased jury.” She writes that Juror No. 2
said that (1) “ ‘not understand[ing] transgender’ ” was an “ ‘Asian point[] of
view’ ”;4 (2) “ ‘gender’s not on trial’ ” in response to “defense questions on not
understanding transgender”; and (3) “not understanding transgender was
‘not going to affect [a juror’s] judgment about justice,’ ” and “those ‘questions
were about the wrong thing.’ ” As Brooks interprets these statements,
Juror No. 2 rejected “the positions . . . that the trial court and defense counsel
had explained to the jurors during voir dire, and requested that the jurors
use to interrogate their own beliefs and inform the court.” Juror No. 2
“considered he knew better than the trial court and defense counsel
concerning what justice the defendant was entitled to receive in the voir dire
process.” He believed that “any questions concerning any unconscious bias
that a juror might harbor against transgender individuals was not only
irrelevant, but positively harmful because such questions created
discrimination against Asian-American prospective jurors by causing them to
be dismissed for holding Asian points of view.” He “categorically rejected the
relevance and value of any such inquiries” regarding possible bias against
4 Brooks misstates the record on this point. Juror No. 2 described the
opinions expressed by the first two jurors as “Asian points of view,” but with
respect to views expressed by Juror No. 13, he said simply that “there’s a lot
of Asians who would say, ‘I don’t understand transgender.’ ” He did not call it
an Asian point of view.
12
transgender individuals, believing that “the entire project of probing for
transgender [bias] is irrelevant and unjustified.”5
Regarding when that information was sought in voir dire, Brooks
writes: “The trial court had expressly asked the jurors to interrogate their
attitudes and consider whether they might have implicit or unconscious bias
that would affect their ability to be a fair and impartial juror in the case, and
bring it to the court’s attention immediately.[6] Juror No. 2 rejected the trial
court’s whole conception of what could affect a juror’s ability to be fair and
impartial. Thus Juror No. 2 was required to bring his point of view on this to
the court’s attention immediately, and certainly not wait until after he was
sworn.”
Finally, Brooks argues that Juror No. 2’s initial concealment and
belated disclosures indicate a substantial likelihood that he was biased
against transgender persons. She argues that those comments revealed “a
failure to appreciate the particular dangers of un-interrogated bias
concerning transgender individuals.” She contends that Juror No. 2’s
comments showed that he regarded Juror No. 13’s “transphobic” views as “no
big deal” and, although Juror No. 2 may have had a legitimate interest in
bias against Asian-Americans, he “could not see any legitimate counter-
5 Although Brooks makes passing reference to the views of the two
jurors who were excused for cause, she does not tie those views—which
concern the presumption of innocence and deference to authority or to those
who are older or more educated—to transgender bias. As Brooks writes,
“Juror No. 2’s opinions about the legitimacy and value of voir dire questions
that address possible bias against transgender person [sic] is the most
significant area to Appellant’s claims.”
6 Brooks cites here the court’s general discussion of unconscious bias,
quoted above, which ended with the question, “Is there anyone in the jury box
who believes that they may have an implicit or unconscious bias that would
affect their ability to be a fair and impartial juror in this case?”
13
valuing weight or importance in the defense’s need to screen for transphobic
attitudes,” which “indicates Juror No. 2’s own transphobic bias.” Brooks goes
farther in her reply brief, arguing that “the way Juror No. 2 phrased his
objections at least raised the inference that Juror No. 2 might share those
opinions but did not express them.”
B.
The Attorney General disagrees with Brooks’s interpretation of
Juror No. 2’s comments, arguing that they “closely reflect the trial court’s
comments separating appellant’s identity as a transgender woman and
appellant’s right to have a fair and impartial jury.” He elaborates: “The law
recognizes that one’s personal beliefs and biases can be set aside to allow the
fair and impartial exercise of judgment in a criminal trial. [Citations.] But
Juror No. 2 suggested that Asian jurors were not given that opportunity
because unconscious bias caused the justice system to pursue a certain
direction of questioning. [Citations.] Juror No. 2 expressed discomfort with
how traditionally held Asian beliefs [citation] seemed to result in a
determination that such a juror could not be fair and impartial. Though
Juror No. 2 found fault with the procedure and how it seemed to target Asian
points of view, he clearly noted that he understood how dismissal would be
warranted where those beliefs interfered with a juror’s ability to fairly judge
the facts of a case.” As evidence of the latter point, the Attorney General
points, among other things, to Juror No. 2’s comment that “ ‘the lawyers,
understandably, went after, like, well, I think that’s a presumption of guilt,
based on arrests. And I don’t want that kind of bias.’ ”
The Attorney General further argues that there is nothing in the record
to suggest that Juror No. 2 intentionally withheld information. In the
Attorney General’s view, the observations that the juror later shared “were
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not germane to the questions asked of him during voir dire” and simply
reflected what he perceived about the jury selection process. Moreover,
Juror No. 2 emphasized that his observations concerned the process as a
whole and were not directed at one party, which the trial court found to be
credible.
Lastly, the Attorney General contends that the trial court properly
found no reasonable likelihood that Juror No. 2 was biased, noting that he
did not claim to share the views of the jurors who had been removed.
According to the Attorney General, the trial court correctly found that the
juror’s remarks were “intended to highlight and eradicate any unconscious
bias on the part of the justice system, rather than a reflection of his own
personal beliefs.” With respect to Juror No. 13 in particular, Juror No. 2
never indicated that bias against transgender people was acceptable. The
Attorney General interprets Juror No. 2’s remark that “ ‘gender’s not on
trial’ ” to mean that Juror No. 13 would be able to judge the facts fairly and
impartially notwithstanding his professed inability “to understand
appellant’s life choices.”
III.
We explain below why we are not persuaded by Brooks’s arguments
that Juror No. 2 rejected the legitimacy of any questions about transphobic
bias, concealed information that was sought in voir dire, and later disclosed
information that showed he was biased against transgender people.
A.
To begin, the parties devote a small part of their briefing to
Juror No. 2’s comments about the two jurors who were excused for cause—in
particular Juror No. 18, who opined about the significance of an arrest as it
pertains to guilt. When Juror No. 2 said that the lawyers’ questions to that
15
juror “were inaccurate—were questions in the wrong direction,” he had just
finished explaining why he thought the lawyers had misinterpreted what she
meant. In his view, she did not mean that people who were arrested were
probably guilty, but that “You took 100 arrests and 100 random people, the
arrest rate probably has a higher hit rate of people who were doing
something, whether they were guilty of a crime or not.” That is the sense in
which he believed those questions were in the “wrong direction.”
Brooks takes issue with the Attorney General’s interpretation of
Juror No. 2’s statement that “the lawyers, understandably, went after, like,
well, I think that’s a presumption of guilt, based on arrests. And I don’t want
that kind of bias.” According to Brooks, Juror No. 2 was not agreeing that
prospective jurors who had such a bias should not serve; as Brooks sees it,
“the ‘I’ that does not want the bias is the same ‘I’ that thinks that it is a
presumption of guilt—namely, the lawyers.” The written record may be
somewhat ambiguous, but against Brooks’s interpretation, Juror No. 2
acknowledged that the lawyers’ concern was “understandabl[e],” and his
point, again, was that they had misconstrued what the prospective juror
meant. We disagree that Brooks’s interpretation is the only reasonable one
or even that it is more likely. Moreover, the trial court was able to evaluate
Juror No. 2’s statement firsthand. A pause between the sentences, for
example, or a hand gesture or an emphasis on the word “I”—all of which
would be absent from the transcript—could have eliminated any question
about Juror No. 2’s meaning. We have no basis to second-guess the trial
court’s assessment.
On the central issue of transgender bias, Juror No. 2 evidently agreed
with Juror No. 13’s assertion that he could judge the evidence fairly and
impartially notwithstanding his lack of understanding of or discomfort with
16
transgender people. By itself, however, that view does not amount to a
rejection of anything the trial court said, and no party asked the court to
excuse Juror No. 13 for cause. Brooks’s assertion that Juror No. 2
“considered he knew better than the trial court and defense counsel
concerning what justice the defendant was entitled to receive in the voir dire
process” is hyperbolic. Juror No. 2 did not say that the court should not have
permitted the lawyers to ask the questions they did, nor did he say that they
were not entitled to honest answers. He prefaced his observations about jury
selection—and in particular his view that “unconscious bias” had led to the
exclusion of Asian prospective jurors—by noting that he did not “think it
affects justice in this case, and it might just be how it goes.”
Brooks argues that “Juror No. 2’s statement that ‘gender’s not on trial’
is particularly important to parse.” As she sees it, he meant that “any and all
inquiry into the attitudes of prospective jurors concerning transgender
persons” should be precluded, not simply that it was possible for a
prospective juror who did not understand or approve of a person’s
transgender identity to serve in a trial of a transgender defendant. We are
not persuaded. As the Attorney General argues, the court had made a
similar comment during the voir dire of Prospective Juror No. 13, stating that
“this case is not about why Ms. Brooks is a transgender woman” and
distinguishing between questions about the existence of bias and questions
about whether the juror could set any bias aside. Juror No. 2 lamented that
the questions led to the removal of an Asian prospective juror who, in his
view, was capable of deciding Brooks’s guilt or innocence fairly and
impartially. Although Brooks argues that the defense did not “take the
position that a lack of understanding [of transgender identity] alone was a
necessary disqualification,” that argument overlooks what Juror No. 2 said
17
he observed and believed—that an Asian prospective juror had been stricken
for expressing that he did not “understand transgender.”
When Juror No. 2 said he thought “the questions were about the wrong
thing,” the context indicates he was faulting the lawyers for what he
perceived as a failure to inquire sufficiently whether Juror No. 13’s views
about transgender people would impact his ability to decide fairly and
impartially. That opinion does not compel the conclusion that Juror No. 2
rejected the concept of unconscious bias—something he believed the lawyers
themselves exhibited when evaluating whether Asian prospective jurors
could be impartial—or that he believed the lawyers should be prohibited from
inquiring into prospective jurors’ views about transgender people altogether.
We find no basis to reject the trial court’s assessment that he meant the
questions were incomplete, or that, because of unconscious bias, the answers
were evaluated in a way that worked to exclude Asian jurors.
B.
We are unpersuaded that the information Juror No. 2 disclosed was
sought from him in voir dire. Brooks relies on People v. Diaz (1984)
152 Cal.App.3d 926, as she did in the trial court. That case involved a
defendant charged with assault with a deadly weapon, and the jurors were
asked during voir dire whether they had ever been “a victim in a case of this
kind.” (Id. at p. 930, italics omitted.) A juror who “sat silent” in response to
that question then answered “no” when she was asked whether there was
“anything in her background or mind which if known to the attorneys might
cause them to choose some other juror in her place.” (Id. at p. 931.) During
the last day of trial, she told court personnel that she had previously been
attacked at knife point during a rape attempt. When questioned about the
disclosure, she said it never occurred to her that what she experienced was
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an assault with a deadly weapon, adding that the incident would not bias her
perception of the case. (Ibid.) The court concluded that the trial court erred
by denying the defense motion to dismiss her. It explained that, whether or
not her concealment had been intentional, the questions propounded at voir
dire were relevant and unambiguous, “and pertained to matters about which
she had substantial knowledge of the information sought to be elicited.” (Id.
at p. 936.) The court found the misconduct prejudicial because the juror had
concealed information that was “so directly related to potential juror bias.”
(Ibid.)7
The trial court did not find Diaz analogous to the circumstances here,
and neither do we. Again, Brooks contends that Juror No. 2 was required to
speak up because the court asked whether there was “anyone in the jury box
who believes that they may have an implicit or unconscious bias that would
affect their ability to be a fair and impartial juror in this case,” and
7 Another court later disagreed with the reasoning in Diaz. (See People
v. Jackson (1985) 168 Cal.App.3d 700, 704–705.) On that basis, the trial
court questioned whether Diaz was still “good law,” although it ultimately
assumed that it was. That assumption was correct. While the courts of
appeal sometimes use the term “overrule” when referring to a declination to
follow a decision from the same division or undivided district (e.g., Estate of
Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9), Diaz and Jackson were decided by
panels in different districts, and courts of equal dignity generally have no
authority to “overrule” one another (Garza v. Asbestos Corp., Ltd. (2008)
161 Cal.App.4th 651, 659, fn. 5). An appellate panel is free to express its
disagreement with another panel and to decide a legal issue the other way,
but doing so does not mean the prior case is no longer good law; it means the
trial court “can and must make a choice between the conflicting decisions.”
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.) “As a
practical matter, a superior court ordinarily will follow an appellate opinion
emanating from its own district even though it is not bound to do so”
(McCallum v. McCallum (1987) 190 Cal.App.3d 308, 315, fn. 4), but here
neither Diaz nor Jackson was decided by a panel in this district.
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Juror No. 2 purportedly “rejected the trial court’s whole conception of what
could affect a juror’s ability to be fair and impartial.” We disagree. One
Asian prospective juror had been excused before the trial court made these
remarks and two more, including Juror No. 13, were excused afterwards.
Juror No. 2 evidently believed those jurors could have served fairly, and that
their exclusion was attributable to unconscious bias against Asians. But that
opinion does not mean that he rejected wholesale the concept of implicit or
unconscious bias, that he was less than candid in the answers he gave, or
that he believed as a matter of principle that there were no views or biases a
person could have, whether regarding transgender identity or any other
matter, that would render the person incapable of evaluating the case fairly
and impartially.
Moreover, unlike in Diaz, there was no failure to disclose a historical
fact. Juror No. 2’s comments were based on how “jury selection . . .[had]
gone” overall and were made immediately after jury selection was complete.
Putting aside that he was not asked during voir dire to disclose what he
thought of the lawyers’ questions to other prospective jurors, it appears to us
that he voiced his concerns as soon as reasonably possible.
C.
We are unpersuaded that Juror No. 2’s comments show a substantial
likelihood that he was biased against transgender persons. To the extent
Brooks argues that Juror No. 2 was biased because he “could not see any
legitimate counter-valuing weight or importance in the defense’s need to
screen for transphobic attitudes,” we have already addressed it above by
rejecting Brooks’s interpretation of the juror’s comments. We cannot
conclude that Juror No. 2 was biased against transgender people simply
because he believed that Juror No. 13, whom no one challenged for cause,
20
could have decided the question of guilt or innocence fairly, as Juror No. 13
himself insisted.
Brooks’s further argument in her reply brief that Juror No. 2’s framing
of the discussion raised the inference that he “might” share the opinions of
the three Asian jurors who were excluded is also unpersuasive. “Might” does
not mean “likely did,” and the mere possibility that a juror held a particular
opinion is not enough to establish bias. To the extent Brooks intended to say
the record shows that Juror No. 2 likely did share those opinions, we
disagree, and certainly cannot conclude that the trial judge, who observed the
remarks firsthand, was required to draw such an inference.
First, Brooks argues that Juror No. 2 did not “distinguish between
‘traditionally Asian beliefs’ and being Asian as [a] matter of race or
ethnicity,” thus “invit[ing] the inference that he, as an apparent Asian
individual, saw himself as sharing those points of view.” This argument is a
stretch. With respect to Juror No. 13, Juror No. 2 said only that “there’s a lot
of Asians who would say, ‘I don’t understand transgender.’ ” His use of the
phrase “a lot” conveys that he did not think all Asians would say it, and his
comments did not indicate in which group he would have placed himself.
Second, Brooks argues that “the way that Juror No. 2 made his
criticisms of the dismissal of the three Asian prospective jurors indicated at
least some sympathy and tolerance for the views they expressed.” But one
can feel sympathy or tolerance for views that one does not share. With
respect to Asians who would say they do not “understand transgender,”
Juror No. 2 disputed that it would “affect their judgment about justice,” a
point he had heard Juror No. 13 try to make when explaining that he
understood the questionnaire to ask about his comfort with transgender
people rather than whether he believed he could give a transgender
21
defendant a fair trial. Juror No. 2’s agreement on that point does not require
an inference that he viewed transgender people the same way Juror No. 13
did.
Third, Brooks writes that “Juror No. 2 appeared to be a man on a
mission to alert the world about anti-Asian bias,” and that the fact that he
“felt compelled” to share his views “indicated a more than casual commitment
to this issue.” Brooks adds: “Under these circumstances, the fact that he
himself appeared to be Asian did not seem completely unconnected to what
seemed a personal concern in raising the issue of anti-Asian bias in jury
selection.” We understand Brooks to be saying that Juror No. 2 felt strongly
about anti-Asian bias in part because he was Asian himself, but do not agree
that this claim, if true, supports a conclusion that he was biased against
transgender people. His “personal connection to the issue,” as Brooks
characterizes it, does not mean that his concern about anti-Asian bias was
window dressing for transphobic bias or would not have been strongly felt if
he did not have the same views about transgender people that Juror No. 13
did.
DISPOSITION
The judgment is affirmed.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
STREETER, J.
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