Filed 8/20/26 P. v. Nyambi CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A173508
v.
TITA NYAMBI, (Humboldt County
Super. Ct. No. CR2403930)
Defendant and Appellant.
This is an appeal from a jury conviction finding defendant Tita Nyambi
guilty of three drug possession crimes. Defendant’s sole contention on appeal
is that the trial court erred in denying his objection to the prosecutor’s
peremptory challenge of a prospective juror under Code of Civil Procedure1
section 231.7. We disagree and therefore affirm the judgment.
BACKGROUND
On March 28, 2025, the Humboldt County District Attorney’s office
filed an amended information charging defendant with possessing
methamphetamine for sale (Health & Saf. Code, § 11378; count 1); possessing
heroin after two or more specified prior convictions (id., § 11395; count 2);
and possessing methamphetamine after two or more specified prior
convictions (ibid.; count 3).
1 Undesignated statutory references are to the Code of Civil Procedure.
1
On April 1, a jury found defendant not guilty of possession of
methamphetamine for sale charged in count 1, but guilty of the lesser
included offense of misdemeanor possession of methamphetamine (Health
& Saf. Code, § 11377, subd. (a)). The jury also found defendant guilty of
counts 2 and 3.
On June 4, the trial court sentenced defendant to two years on count 2;
two years on count 3, to run concurrently to the term on count 2; and one
year on count 1, which the court stayed under Penal Code section 654. The
court imposed a split sentence, ordering defendant to serve one year of the
imposed sentence in county jail and one year under mandatory supervision.
(Pen. Code, § 1170, subd. (h)(5)(B).)
This appeal followed.
DISCUSSION
The Law and the Standard of Review
Before defendant’s trial, trial courts examined peremptory challenges
under the three-step inquiry established by Batson v. Kentucky (1986) 476
U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 (Batson/Wheeler).
Effective January 1, 2022, the Legislature enacted section 231.7 “to establish
‘a new process for identifying unlawful bias in the use of peremptory
challenges during jury selection’ because studies showed that the existing
Batson/Wheeler analysis . . . was inadequate to prevent racial
discrimination.” (People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540
(Jimenez); accord, People v. SanMiguel (July 30, 2026, S287786)
___Cal.5th ___ (SanMiguel).)
Section 231.7 prohibits removing a prospective juror on the basis of a
prospective juror’s actual or perceived “race, ethnicity, gender, gender
identity, sexual orientation, national origin, or religious affiliation, or the
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perceived membership of the prospective juror in any of those groups.”
(§ 231.7, subd. (a); SanMiguel, supra, ___Cal.5th at p. ___.)
A party or the trial court may object to the use of a peremptory
challenge on the grounds that it violates section 231.7, subdivision (a).
(§ 231.7, subd. (b).) Once an objection is made, the party seeking to exercise
the peremptory challenge must state “the reasons the peremptory challenge
has been exercised.” (Id., subd. (c).) The trial court must then evaluate “the
reasons given to justify the peremptory challenge in light of the totality of the
circumstances,” considering “only the reasons actually given” and not any
“other possible justifications . . . .” (Id., subd. (d)(1).) If the court finds “a
substantial likelihood that an objectively reasonable person would view race,
ethnicity, gender, gender identity, sexual orientation, national origin, or
religious affiliation, or perceived membership in any of those groups, as a
factor in the use of the peremptory challenge, then the objection shall be
sustained,” and the court’s reasoning must be stated on the record. (Ibid.)
A “ ‘substantial likelihood’ ” means “more than a mere possibility but
less than a standard of more likely than not.” (§ 231.7, subd. (d)(2)(B).) An
“objectively reasonable person” means someone who is “aware that
unconscious bias [and] purposeful discrimination, have resulted in the unfair
exclusion of potential jurors . . . .” (Id., § (d)(2)(A).) And “ ‘unconscious bias’
includes implicit and institutional biases.” (Id., subd. (d)(2)(C).) Further,
section 231.7, subdivision (d)(3) provides a non-exhaustive list of
circumstances the court may consider in making its determination under
subdivision (d)(1).
Section 231.7, subdivision (e) lists 13 reasons that are presumed to be
invalid as given as a justification for a peremptory challenge. These include,
as relevant here, “[e]xpressing a distrust of or having a negative experience
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with law enforcement or the criminal legal system” (§ 231.7, subd. (e)(1));
“[e]xpressing a belief that law enforcement officers engage in racial profiling
or that criminal laws have been enforced in a discriminatory manner” (id.,
subd. (e)(2)); and “[h]aving a close relationship with people who have been
stopped, arrested, or convicted of a crime” (id., subd. (e)(3)).
A peremptory challenge that relies on one of those reasons is presumed
to be invalid unless the party exercising the challenge “can show by clear and
convincing evidence that an objectively reasonable person would view the
rationale as unrelated to a prospective juror’s race, . . . or perceived
membership in any of those groups, and that the reasons articulated bear on
the prospective juror’s ability to be fair and impartial in the case.” (§ 231.7,
subd. (e).) “To determine that a presumption of invalidity has been overcome,
the factfinder shall determine that it is highly probable that the reasons
given for the exercise of a peremptory challenge are unrelated to conscious or
unconscious bias and are instead specific to the juror and bear on that juror’s
ability to be fair and impartial in the case.” (§ 231.7, subd. (f).)
If the party exercising the peremptory challenge overcomes the
presumption of invalidity, the court reverts to a consideration of the stated
reason for the challenge under section 231.7, subdivision (d)(1), as previously
described. (Jimenez, supra, 99 Cal.App.5th at p. 541.) That is, the court
considers whether, in light of the stated reason for exercising the peremptory
challenge and the totality of the circumstances, it is substantially likely that
an objectively reasonable person would consider that race was a factor in the
challenge. (§ 231.7, subd. (d)(1).)
The denial of an objection under section 231.7 is “reviewed . . . de novo,
with the trial court’s express factual findings reviewed for substantial
evidence.” (§ 231.7, subd. (j).) The appellate court “shall not impute” any
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findings to the trial court that the court “did not expressly state on the
record.” (Ibid.) The appellate court is to “consider only reasons actually
given under subdivision (c) and shall not speculate as to or consider reasons
that were not given to explain . . . the party’s use of the peremptory
challenge.” (Ibid.) Section 231.7, however, “does not limit [the reviewing
court’s] ability to consider undisputed facts in the record that are relevant to
the prosecutor’s reason or the [trial] court’s finding during our de novo
review.” (Jimenez, supra, 99 Cal.App.5th at p. 544.) If the appellate court
concludes the objection was overruled in error, “that error shall be deemed
prejudicial, the judgment shall be reversed, and the case remanded for a new
trial.” (§ 231.7, subd. (j).)
Voir Dire of Prospective Juror Number 934556
During voir dire, the trial court asked prospective jurors whether any
relative, close friend, or anyone with whom they had a significant
relationship had been stopped by the police or accused of misconduct. The
following exchange between the court and Prospective Juror Number 934556
(hereafter, Juror Number or No. 934556) occurred.
“JUROR NUMBER 934556: About 16 years ago, my mom was on a
walk and she had an epileptic seizure. And she was walking our, like, our
family dog; and so, someone saw the dog and called the police. And the police
—the officer assumed that she was just drunk, so he took her to jail. And the
nurse, I guess, in the jail was, like, you should have taken her to the hospital.
And it was, like, she got arrested for being Indian intoxicated in public, but
really it was she was having a seizure. And so, eventually the charges were
dropped. But because, I guess, that he just assumed that she was a Native
person that was drunk, he just assumed that she was without, like, assessing
the situation.
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“THE COURT: And do you have any—it sounds like that was a
negative experience for your family?
“JUROR NUMBER 934556: Right.
“THE COURT: Do you have any negative attitude towards—attitudes
towards law enforcement in any way that are lingering to this day?
“JUROR NUMBER 934556: Well, it’s still, like— you know? It’s there.
That—that happened in Humboldt County.
“THE COURT: Yeah.
“JUROR NUMBER 934556: But, like, so I don’t want to say, oh, no, it
doesn’t, but I just wanted a full disclosure.
“THE COURT: I appreciate it. And do you think that that experience
would impact your ability to be fair or impartial in this particular matter?
“JUROR NUMBER 934556: I would hope so, but I can’t say, like, yes,
living through, like, what she went through. So, I would hope that I could be,
like, impartial, but I also know the other side of it when, you know, a officer
is, you know, clearly, distinctively, okay, this is what happened without
assessing the situation.
“THE COURT: All right. Thank you.”
Defense counsel (Casey Russo) later questioned Juror No. 934556 as
follows:
“MR. RUSSO: [Juror No. 934556], you told us about that experience
with your mother. And that sounds like a really unfortunate situation, and
that they, police officers handled that—based on what you told us, it doesn’t
sound like they handled it particularly well.
“JUROR NUMBER 934556: Yeah.
“MR. RUSSO: And that’s not something you’re going to forget.
“JUROR NUMBER 934556: No.
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“MR. RUSSO: But we—so we’re trying to get a cross-section of the
community—people from all walks and all sorts of experiences. If everybody
that got on a jury only had positive experience with law enforcement, that
would not be particularly a good cross-section of the community. We want
people—or we all know that there’s good cops, there’s bad cops. Good cops
sometimes don’t have a good day. All that stuff happens. The question is
whether or not these officers and coming into testify or anybody else
testifying is going to, you know, kind of, pay a price based on that prior
experience that there’s going to be some sort of—they’re going to start off
with a disadvantage because of a feeling about law enforcement in that
particular experience. I’m wondering, do you think you’d be able to set that
aside in judging the officers in this case, which I assume are not the officers
that were involved in your mother’s case?
“JUROR NUMBER 934556: Yeah. I think I could.
“MR. RUSSO: Do you remember what agency that—was that—was
that in Humboldt County?
“JUROR NUMBER 934556: Yeah. It was, like, on Humboldt Hill, so
maybe CHP.”
The prosecutor (Ian Harris) then questioned Juror No. 934556 as
follows:
“MR. HARRIS: [Juror No. 934556], you had mentioned that, kind of, on
the first questioning from Judge Killoran, you had said that you had hoped
you could be impartial. You’ve heard from a lot of other folks. You know,
there’s good interactions, bad interactions. I consider that as being impartial.
What made you hesitate and say I hope? What’s going through your head?
“JUROR NUMBER 934556: Just from what my mom told me. You
know? Like, she explained when she came out of a seizure, an epileptic
7
seizure, she wasn’t taken seriously. And then, just from her experience of
what she went through.
“MR. HARRIS: And so, why does that experience—like, I can
understand where it might be difficult. What about that gave you concern
about you being fair and impartial in this case?
“JUROR NUMBER 934556: Maybe just, like, what people in uniform
did. You know? Like, what she had went through by the justice system, that
she really didn’t get treated fairly, in my opinion.
“MR. HARRIS: And I’ll ask beforehand. There’s a lot of stuff that kind
of comes up through this process that we haven’t talked about or thought
about in a long time. Is this—what your mother went through, is this
something you haven’t thought about in a while?
“JUROR NUMBER 934556: Oh, no.
“MR. HARRIS: How often do you think about it?
“JUROR NUMBER 934556: Maybe—this happened 16 years ago, so
maybe every couple of years.
“MR. HARRIS: Does it come up to the surface every time you come in
contact with law enforcement?
“JUROR NUMBER 934556: It’s always there.
“MR. HARRIS: What do you mean by that?
“JUROR NUMBER 934556: It’s—you don’t know, like, what—I guess,
maybe there’s a bias personally that, oh, you know, this happened one, like,
level away from me, like, in a relationship. It wasn’t just this far off, like, oh,
this happened to somebody else.
“MR. HARRIS: Yeah, it’s right there?
“JUROR NUMBER 934556: Yeah.
“MR. HARRIS: Within your family?
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“JUROR NUMBER 934556: Yeah.
“MR. HARRIS: If it happened before, it could happen again?
“JUROR NUMBER 934556: Maybe. Like, you know, I can’t say no,
that’s never going to happen again.
“MR. HARRIS: Thank you . . . .”
The prosecutor challenged Juror No. 934556 for cause, arguing that her
“first response to your Honor’s questioning was . . . she would hope she could
be impartial” and “she does think she has a bias against police officers.”
Therefore, the prosecutor did not “think that law enforcement witnesses
would start off on the same playing field as civilian witnesses.” Defense
counsel objected, and the trial court denied the prosecution’s challenge for
cause. The court stated, “I asked if she unequivocally could set it aside, my
questioning. And the answer to Mr. Russo’s questioning, that’s basically
what I got. . . . she did say unequivocally she could set it aside.”
The prosecutor later exercised a peremptory challenge to excuse Juror
No. 934556. Defense counsel objected under section 231.7. Counsel argued
that Juror No. 934556, who stated her mother was Native American, “falls
into kind of protected, a minority race in a trial where [defendant] is African
American with vast majority being white potential jurors” and that Juror No.
934556 “is one of the few exceptions to that . . . .” Counsel also argued that
“the only basis of this challenge here was that . . . [Juror No. 934556’s]
mother had a memorable negative experience.” Counsel continued,
“the . . . statute states that when the basis for the challenge is . . . the
negative experience with law enforcement[,] . . . the Court is supposed to then
seek a rationale from the prosecution for the peremptory and must be found
by clear and convincing evidence that . . . race was not a factor . . . in the
peremptory.”
9
In response, the prosecutor acknowledged Juror 934556’s mother’s
Native American descent, but asserted, “there’s nothing in the record
whatsoever regarding any kind of prior bias I personally had [or] the District
Attorney’s office has had in recent years . . . .” The prosecutor stated that
“[Juror 934556] . . . believes she has a bias towards police officers due to this
event,” but that he “understand[s] where it’s coming from” and “would be just
as frustrated” if he were in the same position.
The prosecutor acknowledged that in response to defense counsel’s
questioning regarding impartiality, Juror 934556 said that she could set
aside her bias. However, the prosecutor was “not satisfied” by her responses.
The prosecutor explained: “[Juror No. 934556] did answer that ultimate
question in the affirmative of, yes, I can set that aside. But the way that
shaped up, I’m not satisfied with that answer is going to stand. The first
response—and I brought it up in my cause challenge—the first thing out of
her mouth when this got brought up to your Honor’s questions was, ‘I hope I
can be impartial, I’m not sure.’ Then, counsel talked to her. She leaned more
toward yes, I can be fair and impartial. And then, when I talked to her, she
kind of went back the other way, yes, I have this bias; it’s on my mind when I
talk to law enforcement. It could happen again is what she said. It could
happen again. And so, that questioning has nothing to do, or that challenge
has nothing to do with her characteristics, her background she’s come from
other than this relationship with law enforcement.” The prosecutor thus had
“concerns about [Juror 934556] being fair and impartial.”
The prosecutor also stated, “any juror who told that to me—regardless
of their race, ethnicity, sex, age, whatever it is—I’m going to be treating them
the same way.” He continued: “there’s nothing in . . . the way I spoke to her,
the kinds of questions I asked, that I don’t think a reasonable person
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reviewing this could see that I treated [Juror No. 934556] in any different
way or, you know, from interactions with previous jurors, and previous jurors
who had indicated, yeah, I have had some negative interaction, some positive,
we didn’t quite have anybody who says just negative until she had spoken.”
The prosecutor added that he even “kicked” another prospective juror who
stated he had been arrested and prosecuted, as well as expressed both
negative and positive aspects of law enforcement.
Defense counsel reiterated that his “client is African American sitting
in the face of a venire of almost white people.” Counsel also argued that
“[t]he only thing that the prosecution question[ed] [Juror No. 934556]” on was
the “story about her mother, a Native American woman who had this
experience with law enforcement.” Counsel then argued that an objectively
reasonable person would “have a concern” that race was likely a factor in the
prosecution’s use of the peremptory challenge of the juror, even though the
challenge may not have been “purposeful discrimination.”
After taking the matter under submission, the court overruled the
defense objection to the peremptory challenge. The court explained:
“Based on the totality of the circumstances, a test for a basic violation
includes is there a substantial likelihood that an objectively reasonable
person would believe cognizable group membership or perceive membership
as a factor for exercising a challenge, a substantial likelihood means more
than a mere possibility but less than a standard of more likely than not. An
objectively reasonable person is aware that unconscious bias and purposeful
discrimination would result in the unfair exclusion of potential jurors in
California.
“The test for overcoming the presumption of invalidity of a challenging
party must establish by clear and convincing evidence that it would be highly
11
probable that an objectively reasonable person aware of the facts determined
by the Court and aware unconscious bias and purposeful discrimination have
resulted in unfair exclusion of potential jurors would view the proffered
reasons of unrelated to the prospective juror’s cognizable group membership
because the reasons are, one, unrelated to conscious or unconscious bias and
are instead specific to the juror unrelated to the purposeful discrimination or
stereotypical unconscious bias and, two, bearing on the juror’s ability to be
fair and impartial. And in this case there was not a sufficient reason to
warrant disqualification for cause. That’s exactly what we have here.
“Juror No. [934556] made comments that concerned Mr.
Harris . . . . Voir dire facts, however, established that the juror 16 years ago
had the experience with law enforcement that pains her to this day. She
believed that the interaction with law enforcement was based on racial
attitude, stereotypes related to her mother and her mother’s Native American
ethnicity. There her mother suffering from an epileptic seizure was detained
by law enforcement for being drunk in public. She then had to go through
some process before those charges were ultimately dismissed. The juror
carries her disappointment and resentment to law enforcement to this day,
indicating that she still recalls and thinks about the event every couple of
years. In addition, in her colloquy with both counsel, and although she did at
one point state that she could be fair, that was eclipsed by the consistent
statement that at best she would try. And again, her equivocal statement to
that effect influenced the Court’s decision as to the cause challenge. So Mr.
Harris is not—is not required to rely on that. That’s what peremptories are
for.
“This difficulty that she manifests is specific to her life experience goes
directly to Mr. Harris’s concern as to whether she could be fair and impartial
12
in this matter. And so, I do find by clear and convincing evidence that the
reasons Mr. Harris provided for on Juror Number [934556’s] ability to be fair
and impartial under the totality of the circumstances is not a substantial
likelihood that an objectively reasonable person would view cognizable group
membership as a factor in the prosecutor’s peremptory challenge of Juror
Number [934556]. Rather, an objectively reasonable person would determine
that the prosecutor exercised the challenge because of Juror Number
[934556’s] inability to be fair based on her view of law enforcement racial bias
based on personal experience that she still struggles with to this day. I do
find that by clear and convincing evidence that ethnicity and race are not the
reason Mr. Harris is asking that the juror be excused. And if he chooses to do
so, and presume he may, he is permitted to do so.”
The Trial Court Properly Overruled Defendant’s Objection to
the Prosecutor’s Peremptory Challenge
Defendant’s sole contention is that “The Prosecutor’s Reasons For
Excusing Juror No. 934556 Were Presumptively Invalid Under Code Of Civil
Procedure Section 231.7 And The Prosecutor Failed To Set Forth Clear And
Convincing Evidence To Overcome That Presumption.” The first part of that
argument is undisputed. The People do not disagree that the prosecutor’s
reliance on Juror No. 934556’s mother’s negative experience with law
enforcement and Juror No. 934556’s resultant distrust of law enforcement
was presumptively invalid. (See § 231.7, subd. (e)(1), (2), & (3).) The parties,
however, disagree on whether the trial court correctly determined the
prosecutor overcame the presumption of invalidity. We agree with the People
that substantial evidence supports the court’s conclusion that the
presumption of invalidity was rebutted.
There was clear and convincing evidence that an objectively reasonable
person would find that the prosecutor’s reasons were unrelated to Juror No.
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934556’s race and instead bore on her ability to be fair and impartial.
(§ 231.7, subds. (e), (f).) When the court asked Juror No. 934556 whether her
mother’s negative experience with law enforcement “would impact [her]
ability to be fair or impartial in this particular matter,” she replied, “I would
hope so, but I can’t say, like, yes . . . .” Later, when defense counsel asked
Juror No. 934556 where she could set aside her views on law enforcement in
evaluating the officers’ testimony in this case, she responded, “Yeah, I think I
could.” The prosecutor subsequently asked Juror No. 934556. “What made
you hesitate and say I hope [in response to the court’s earlier question]?”
Juror No. 934556 responded, “[M]aybe there’s a bias personally that, oh, you
know, this happened one, like, level away from me, like, in a relationship. It
wasn’t just this far off, like, oh, this happened to somebody else.” She
thought about her mother’s negative experience with law enforcement “every
couple of years.” Also, in response to the prosecutor’s question, “Does it come
up to the surface every time you come in contact with law enforcement?”
Juror No. 934556 stated, “It’s always there.” And when asked, “If it
happened before, it could happen again?” Juror No. 934556 said,
“Maybe. . . . I can’t say no, that’s never going to happen again.” Thus, the
record shows that multiple times during voir dire, including near the end of
it, Juror No. 934556’s responses about her ability to be fair and impartial
were uncertain and equivocal. Consequently, the prosecutor told the court
that he was concerned about Juror No. 934556’s ability to be fair and
impartial.
Collectively, the above identified facts support the trial court’s finding
that it was highly probable that an objectively reasonable person would have
viewed the reasons given by the prosecutor as unrelated to Juror No.
934556’s race or ethnicity and, instead bore on Juror No. 934556’s ability to
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be fair and impartial. (§ 231.7, subd. (f).) Thus, the trial court properly
found the prosecution successfully overcame the presumption of invalidity.
Other courts have recognized that the statutory presumption was
overcome by prospective jurors’ equivocal answers about their ability to be
fair or impartial. (See People v. Gonzalez (2024) 104 Cal.App.5th 1, 17–18
(Gonzalez); Jimenez, supra, 99 Cal.App.5th at p. 544.)
For example, in Gonzalez, a prospective juror, who was black, reported
that law enforcement had mishandled the investigation of his cousin’s
murder. (Gonzalez, supra, 104 Cal.App.5th at pp. 9–10.) He also indicated
that when he was a preteen, the police pulled up to him and his friends
playing basketball, ordered them to “ ‘put [their] hands on the hot hood’ of the
police car,” and “beat [their] hands with a flashlight when they tried to
move.” (Id. at p. 10.) The juror in Gonzalez said he was “ ‘bitter’ ” and
“ ‘frustrate[d]’ ” by these interactions with police, initially indicating that he
“ ‘d[idn’t] know’ ” if he could be “part of the justice system” as a juror and not
hold these experiences against any testifying officers. (Id. at pp. 10–11.)
“Only after the court told him that he would be instructed not to give law
enforcement officers ‘more or less credibility’ than anyone else did he agree
that he could follow the instruction.” (Id. at p. 17; see id. at p. 12.)
After unsuccessfully attempting to have Juror No. 1589 excused for
cause, the prosecutor exercised a peremptory challenge to excuse him.
(Gonzalez, supra, 104 Cal.App.5th at p. 11.) During argument, the
prosecutor explained, in part, that the prospective juror twice responded that
he was not sure he could be fair to law enforcement based on his experience.
(Id. at p. 12.) The trial court found the prosecutor met the clear and
convincing evidence standard under section 231.7, subdivision (e), and
overruled the defense objection. (Gonzalez, supra, at p. 12.)
15
The appellate court affirmed that ruling. (Gonzalez, supra, 104
Cal.App.5th at p. 5.) It explained, “Juror No. 1589’s views appeared to be the
direct result of how law enforcement had treated him personally, both in
connection with his cousin’s murder and when officers stopped him as a child.
There was thus reason to believe Juror No. 1589’s views arising from his past
experiences were related to his race.” (Id. at p. 17.) “Nevertheless,” the court
concluded: “ ‘An objectively reasonable person would view the prosecutor’s
challenge of Juror Number [1589] due to [his] feelings on law enforcement as
related to [his] ability to be fair based on [his] repeated acknowledgement
that [he] would have difficulty setting aside [his] bias and being fair.’
[Citation.] While a prospective juror’s negative experience with law
enforcement may be inextricably related to that juror’s race, the focus of
section 231.7 is on race as a factor in the use of the peremptory challenge. In
view of his multiple uncertain and noncommittal responses regarding
impartiality, the trial court properly found it highly probable the prosecutor’s
challenge was unrelated to conscious or unconscious bias and was instead
specific to Juror No. 1589 and bore on his ability to be fair and impartial. In
other words, the clear and convincing standard was satisfied.” (Gonzalez, at
pp. 17–18.)
In Jimenez, the trial court likewise found clear and convincing evidence
that a peremptory challenge was unrelated to conscious or unconscious bias
when a prospective juror repeatedly stated she would have difficulty setting
aside her bias against law enforcement officers to fairly consider their
testimony. A juror identified as Latina stated, “ ‘I will always follow the
law. . . . However, I see sometimes the law is not—it’s depending on the color
of your skin.’ ” (Jimenez, supra, 99 Cal.App.5th at p. 541.) While the juror
insisted she could “still be fair and follow the law,” she also acknowledged,
16
“ ‘[I]t would be difficult. I’m not saying I couldn’t do it. I also think . . .
implicit bias is definitely a thing that I could do without knowing I did it.’ ”
(Ibid.) She also stated, “ ‘[I]t’s . . . always in the back of my mind as much as
I try to set it aside.’ ” (Ibid.) The reviewing court held, based on this record,
that “[a]n objectively reasonable person would view the prosecutor’s challenge
of Juror Number 8 due to her feelings on law enforcement as related to her
ability to be fair based on her repeated acknowledgement that she would
have difficulty setting aside her bias and being fair.” (Id. at p. 544.)
The same conclusion is appropriate in this case. Here, as in Gonzalez
and Jimenez, for the reasons we have discussed, in view of Juror No. 934556’s
“uncertain and noncommittal responses regarding impartiality” (Gonzalez,
supra, 104 Cal.App.5th at p. 17), the prosecution successfully demonstrated
that its reasons for exercising a peremptory challenge against Juror No.
934556 bore on her ability to be a fair and impartial juror and were unrelated
to her race.
Defendant’s arguments to the contrary are unavailing. For example, he
attempts to distinguish Gonzalez, arguing that “unlike the juror in Gonzalez,
who stated multiple times that he did not know if he could be impartial
toward law enforcement, Juror No. 934556 told the court she could be
impartial.” In support, defendant relies on the portion of the record
containing his counsel’s colloquy with Juror No. 934556, during which she did
state that she thought she could be impartial. However, defendant ignores
other portions of the record we described above indicating that Juror No.
934556 also provided uncertain and noncommittal responses regarding
impartiality.2
2 Defendant also relies on the fact that “when denying the prosecutor’s
challenge for cause, the judge acknowledged that Juror No. 934556 had a bias
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Defendant also takes issue with the prosecutor’s statements that using
the peremptory challenge to remove Juror No. 934556 had nothing to do with
her race and that he would have moved to dismiss a white prospective juror
who had the same experience as Juror No. 934556. “That may be true,”
defendant argues, “but the problem with asserting that the removal had
nothing to do with race is, of course, that the experience is statistically far
less likely to have happened to a white person. [Citation.] Juror No.
934556’s mother’s negative experience was directly related to her race, and
Juror No. 934556’s views about police were a direct result of that racially
informed experience. There is no way to remove race from the analysis.” We
are unconvinced. To be clear, there was reason to believe Juror No. 934556’s
views stemming from her mother’s experience with law enforcement were
related to her Native American descent. Juror No. 934556 stated that her
mother “got arrested for being Indian intoxicated in public. . . . [The arresting
officer] just assumed that she was a Native person that was
toward police officers but ‘did say unequivocally she could set it aside.’ ”
Defendant’s reliance on these comments is misplaced. As discussed above,
although Juror No. 934556 gave an unequivocal statement when asked by
defense counsel whether she could be fair and impartial, she also gave
equivocal statements regarding her impartiality in response to similar
questioning by the court and the prosecutor during voir dire. The
unequivocal response of Juror No. 934556 understandably led the court to
deny the for-cause challenge, for which showing a prospective juror’s actual
bias, implied bias, or general disqualification from the case is required.
(SanMiguel, supra, ___Cal.5th at p. ___; citing § 225, subd. (b)(1); see § 225,
subd. (b)(1)(C) [defining “actual bias”]; § 228 [defining “general
disqualification”]; § 229 [defining “implied bias”].) But Juror No. 934556’s
equivocal statements were relevant to the different question of whether, and
supported the court’s finding that, an objectively reasonable person would
view the prosecutor’s reasons for exercising the peremptory challenge as
unrelated to Juror No. 934556’s race and instead bore on her ability to be fair
and impartial. (See § 231.7, subds. (d)(1), (e).)
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drunk . . . without . . . assessing the situation.” However, as Gonzalez
explained, “While a prospective juror’s negative experience with law
enforcement may be inextricably related to that juror’s race, the focus of
section 231.7 is on race as a factor in the use of the peremptory challenge.”
(Gonzalez, supra, 104 Cal.App.5th pp. 17–18, italics added.) And as we
explained above, in view of Juror No. 934556’s equivocal and uncertain
responses regarding whether she could be impartial, “the trial court properly
found it highly probable the prosecutor’s challenge was unrelated to conscious
or unconscious bias and was instead specific to [the prospective juror] and
bore on his ability to be fair and impartial.” (Id. at pp. 17–18.)
Likewise misplaced is defendant’s reliance on People v. Jaime (2023) 91
Cal.App.5th 941 (Jaime) in his reply brief. In Jaime, the trial court applied
the Batson/Wheeler framework to evaluate a peremptory challenge against a
prospective juror because she had a negative experience with the criminal
justice system related to a relative’s conviction, apparently overlooking that
section 231.7 had been enacted specifically to improve upon this prior
standard and the prosecution’s reasoning was presumptively invalid under
the new statute. (Jaime, supra, 91 Cal.App.5th at pp. 943–945.) The People
also presented argument applying “ ‘the previous [Batson/Wheeler]
standard’ ” and, while they later informed the court the law had changed,
“stuck by their previously stated reasons” without addressing the new statute
in any meaningful way. (Id. at p. 946.) There was no indication that the
prosecution attempted to challenge the prospective juror for cause or ever
actually articulated a concern with bias. Rather, it merely cited the
prospective juror’s experience with the legal system and stated that it “did
affect and bother her.” (Id. at p. 945.) In reversing the judgment, the Court
of Appeal briefly observed that “[a]llowing a party to use the presumptively
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invalid reasons to overcome the presumption would render section 231.7,
subdivision (e) meaningless.” (Jaime, supra, 91 Cal.App.5th at p. 947.) That
observation is correct in the context in which it was made, where the
prosecution relied on presumptively invalid reasons on their face, without
explaining how the reasons bore on the prospective juror’s ability to be fair
and impartial. Here, in contrast, as discussed above, the prosecutor
expressly raised and thoroughly developed that issue—which the statute
specifically provides may overcome the presumption of invalidity. (§ 231.7,
subds. (e), (f).)
Having determined that the presumption of invalidity was properly
rebutted, section 231.7 requires that we undertake a de novo assessment of
whether there is a substantial likelihood that an objectively reasonable
person would view race as a factor in the use of the peremptory challenge
considering the reason given and the totality of the circumstances. (§ 231.7,
subds. (d)(1), (j).) We have determined that clear and convincing evidence
supports the conclusion that an objectively reasonable person would find that
it is highly probable that the reason given for the prosecutor’s peremptory
challenge of Juror No. 934556 was unrelated to her race, and was instead
specific to Juror No. 934556 and bore on her ability to be fair and impartial in
the case. There accordingly is no substantial likelihood that an objectively
reasonable person would view race as a factor in the prosecutor’s peremptory
challenge of Juror No. 934556.
In sum, we hold the trial court did not err in overruling defendant’s
objection to the prosecutor’s exercise of a peremptory challenge of Juror No.
934556.
DISPOSITION
The judgment of conviction is affirmed.
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RICHMAN, J.
We concur.
STEWART, P.J.
MILLER, J.
(A173508N)
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