IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOEL SANMIGUEL,
Defendant and Appellant.
S287786
Second Appellate District, Division Six
B328160
Ventura County Superior Court
2022002116
July 30, 2026
Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Groban,
Evans, and Egerton* concurred.
*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. SANMIGUEL
S287786
Opinion of the Court by Kruger, J.
For nearly half a century, our law has steadfastly
prohibited discrimination on the basis of race or other protected
status in selecting juries. (People v. Wheeler (1978) 22 Cal.3d
258, 273 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 91
(Batson).) The reason for this prohibition is as familiar as it is
vital to the operation of a system that guarantees equal
treatment to all. As our cases have repeatedly and consistently
recognized, discrimination in jury selection harms not only
litigants and persons called to jury service, but the very
integrity of our system of justice.
To enforce the prohibition, the courts in Wheeler and
Batson set forth a procedural framework for determining
whether a litigant’s decision to peremptorily challenge a
prospective juror was motivated by improper bias. After years
of experience applying this framework, commentators
increasingly came to question whether the framework is
adequate to identify and curb improper discrimination when it
occurs. In response to these concerns, the Legislature enacted
Code of Civil Procedure section 231.7, which establishes a new
framework for evaluating discrimination-related objections to
peremptory challenges. Under the statute, if an objection is
made to a peremptory challenge, the striking party must give its
reasons for exercising the peremptory challenge. (Code Civ.
Proc., § 231.7, subds. (b), (c) (section 231.7).) If, after
considering the striking party’s reasons, a “court determines
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there is 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.” (§ 231.7, subd. (d)(1) (section 231.7(d)(1).)
This case concerns the provisions of section 231.7
addressing a situation in which the striking party gives reasons
relating to the prospective juror’s demeanor, behavior, or
manner of responding to questions (collectively referred to as
behavior-based reasons). Under the statute, these reasons “are
presumptively invalid unless the trial court is able to confirm
that the asserted behavior occurred . . . . Even with that
confirmation, the counsel offering the reason shall explain why
the asserted demeanor, behavior, or manner in which the
prospective juror answered questions matters to the case to be
tried.” (§ 231.7, subd. (g)(2) (section 231.7(g)(2).)
Here, a prosecutor listed multiple reasons for striking a
prospective juror, including a behavior-based reason: that the
prospective juror was not as engaged and was less attentive
than other prospective jurors. The trial court confirmed the
prosecutor’s observations and overruled the defense’s
section 231.7 objection without insisting on a further
explanation of why these behaviors “matter[] to the case to be
tried.” (§ 231.7(g)(2).) The Court of Appeal affirmed. It
concluded that, notwithstanding the absence of such
explanation, the prosecutor’s and court’s observations about the
prospective juror’s attentiveness were not only sufficient to
overcome the statutory presumption that the behavior-based
reason was invalid, but also independently sufficient to
establish the lawfulness of the strike.
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Opinion of the Court by Kruger, J.
The Court of Appeal’s resolution of the issue reveals a
number of points of uncertainty in the developing law of
section 231.7. We now clarify two general principles about
behavior-based reasons under section 231.7, subdivision (g).
First, to overcome the presumption that a behavior-based
reason is invalid, the striking party must offer an explanation
that is sufficient to allow the court to evaluate the reason as part
of its overarching determination of whether an objective
observer would view race or other protected status as a factor in
the exercise of the peremptory challenge. A court may be able
to confirm, for instance, that a prospective juror is not making
eye contact. But it cannot adequately evaluate the striking
party’s motivation unless the striking party tells the court what
it is inferring from the behavior about how the prospective juror
would perform the duties of a juror — as the statute puts it, why
the lack of eye contact “matters to the case to be tried.”
(§ 231.7(g)(2).) Ultimately, the explanation requirement is a
functional one, and the statute does not prescribe a rigid
sequence of steps or a particular verbal formula that must be
employed to satisfy it.
Second, whether a behavior-based reason is found to be
valid or invalid is not dispositive of the ultimate inquiry into the
presence of unlawful discrimination. If the reason is invalid, it
may not be relied on to justify the strike. While reliance on an
invalid reason is generally a significant consideration — and,
depending on the circumstances, may prove dispositive — a
court still must consider any other reasons proffered and other
relevant circumstances to determine whether the strike was
unlawful under section 231.7. Conversely, finding that the
statutory presumption of invalidity has been overcome is not
necessarily dispositive of the lawfulness of the strike. A court
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Opinion of the Court by Kruger, J.
may conclude that a behavior-based reason is valid and yet
determine, after weighing other reasons and relevant
circumstances, that an objective observer would still likely
conclude that race or other protected status was a factor in the
peremptory challenge.
Because the Court of Appeal in this case did not apply
these principles in evaluating the section 231.7 challenge, we
reverse and remand for further proceedings.
I.
A.
Because this is our first case interpreting section 231.7, we
begin by reviewing the relevant legal background in some detail.
In selecting a jury, litigants may raise two types of
challenges to prospective jurors: for cause and peremptory.
(Wheeler, supra, 22 Cal.3d at p. 273; Code Civ. Proc., § 225,
subd. (b).) For-cause challenges are limited to concerns about
prospective juror qualifications and actual or implied bias.
(Code Civ. Proc., § 225, subd. (b)(1) [permitting “[a] challenge for
cause” for “[g]eneral disqualification,” “[i]mplied bias,” or
“[a]ctual bias”]; see id., § 228 [defining “general
disqualification”].) Peremptory challenges, in contrast, were
“designed to be used ‘for any reason, or no reason at all.’ ”
(People v. Scott (2015) 61 Cal.4th 363, 387 (Scott).) Peremptory
challenges are not constitutionally required, but they
“traditionally have been viewed as one means of assuring the
selection of a qualified and unbiased jury.” (Batson, supra,
476 U.S. at p. 91.) The idea is that peremptory challenges
“allow[] removal of a biased juror” when “the party either cannot
establish his reason by normal methods of proof or cannot do so
without causing embarrassment to the challenged venireman
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Opinion of the Court by Kruger, J.
and resentment among the remaining jurors.” (Wheeler at
p. 275; see 4 Blackstone, Commentaries 353.)
The federal and state Constitutions, however, place
important limits on parties’ ability to strike prospective jurors:
While peremptory strikes may be made for virtually any reason,
they may not be made because of the prospective juror’s race or
other protected status. Nearly 50 years ago, in Wheeler, this
court held that “the use of peremptory challenges to remove
prospective jurors on the sole ground of group bias violates the
right to trial by a jury drawn from a representative cross-section
of the community under article I, section 16, of the California
Constitution.” (Wheeler, supra, 22 Cal.3d at pp. 276–277.)
While it is acceptable to “seek to eliminate a specific bias”
derived from personal experience, a party that “presumes that
certain jurors are biased merely because they are members of
an identifiable group distinguished on racial, religious, ethnic,
or similar grounds . . . and peremptorily strikes all such persons
for that reason alone” violates the right to “an impartial jury
guaranteed by the California Constitution.” (Id. at p. 276.) A
decade later, the United States Supreme Court held that the
federal “Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race or on
the assumption that black jurors as a group will be unable
impartially to consider the State’s case against a black
defendant.” (Batson, supra, 476 U.S. at p. 89.) The court
explained that “[p]urposeful racial discrimination . . . denies [a
defendant] the protection that a trial by jury is intended to
secure”: “ ‘[A] body . . . composed of the peers or equals of the
person whose rights it is selected or summoned to determine.’ ”
(Id. at p. 86.) But the harm “extends beyond that inflicted on
the defendant”; it also harms the prospective jurors and,
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ultimately, operates to “undermine public confidence in the
fairness of our system of justice.” (Id. at p. 87.)
The courts in Wheeler and Batson set forth a substantially
similar three-step burden-shifting inquiry to guide the trial
court’s constitutional review of a peremptory strike. (Scott,
supra, 61 Cal.4th at p. 383.) Step one of the Batson/Wheeler test
requires the defendant to “make out a prima facie case ‘by
showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.’ ” (Johnson v. California
(2005) 545 U.S. 162, 168.) If the defendant makes out a prima
facie case, the second step shifts the burden “ ‘to the State to
explain adequately the racial exclusion’ by offering permissible
race-neutral justifications for the strikes.” (Ibid.) At step three,
the trial court decides “ ‘whether the opponent of the strike has
proved purposeful racial discrimination.’ ” (Ibid.)
After many years of experience employing this framework,
commentators in California and in other parts of the country
increasingly raised concerns about its adequacy in addressing
the problem of discrimination in jury selection. Several states
across the country began to study the issue and consider
potential reforms. (See Jury Selection Work Group: Final
Report to the Supreme Court of California (July 2022) p. 2, fn. 2
[describing efforts in Washington, Pennsylvania, Arizona,
Connecticut, and New Jersey].)1 In 2020, this court appointed a
workgroup to study issues related to discrimination in jury
1
This report is available at <https://newsroom.courts.ca.gov/
sites/default/files/newsroom/2022-09/Jury%20Selection
%20Work%20Group%20Final%20Report.pdf> (as of July 30,
2026). All internet citations in this opinion are archived by year,
docket number, and case name at <http://courts.ca.gov/opinions/
cited-supreme-court-opinions>.
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selection in California. (Id. at p. 1.) While that effort was still
underway, the Legislature passed Assembly Bill No. 3070
(2019–2020 Reg. Sess.) (Assembly Bill No. 3070), a reform
proposal modeled after a rule recently adopted in the state of
Washington. (Stats. 2020, ch. 318; Assem. Com. on Judiciary,
Analysis of Assem. Bill No. 3070 (2019–2020 Reg. Sess.) as
amended May 4, 2020, p. 10 [“The procedures laid out in
[Assembly Bill No. 3070] are modeled on the new rule used in
Washington courts (GR 37) and tailored by various stakeholders
and Committee staff in order to increase clarity and
workability”].)
The legislative findings and declarations accompanying
Assembly Bill No. 3070 plainly describe the impetus for reform.
Finding “that peremptory challenges are frequently used in
criminal cases to exclude potential jurors from serving based on
their race, ethnicity, gender, gender identity, sexual orientation,
national origin, or religious affiliation, or perceived membership
in any of those groups, and that exclusion from jury service has
disproportionately harmed African Americans, Latinos, and
other people of color,” the Legislature crafted procedures
intended to further the important “purpose of eliminating the
use of group stereotypes and discrimination, whether based on
conscious or unconscious bias, in the exercise of peremptory
challenges.” (Stats. 2020, ch. 318, § 1, subds. (b), (c).) The
statute, now codified as Code of Civil Procedure section 231.7,
“applies in all jury trials in which jury selection begins on or
after January 1, 2022.” (§ 231.7, subd. (i).)
B.
Section 231.7 prohibits removing a prospective juror on
the basis of the prospective juror’s actual or perceived “race,
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Opinion of the Court by Kruger, J.
ethnicity, gender, gender identity, sexual orientation, national
origin, or religious affiliation.” (§ 231.7, subd. (a).) (For
simplicity’s sake, we refer in this opinion to “race or other
protected status.”) To effectuate this overarching prohibition,
the statute sets out a framework that differs from
Batson/Wheeler in several important respects.
If another party or the trial court objects to the use of a
peremptory challenge, then the party that exercised the
peremptory challenge must state the reasons for the challenge;
there is no requirement that the objecting party first establish
a prima facie case of discrimination. The trial court evaluates
the reasons given and rules on the objection, stating its reasons
on the record. (§ 231.7, subds. (b)–(d).) In ruling on the
objection, the court may “not speculate on, or assume the
existence of, other possible justifications for the use of the
peremptory challenge.” (§ 231.7(d)(1).) Rather, the court
evaluates “the reasons given . . . in light of the totality of the
circumstances.” (Ibid.; see id., subd. (d)(3) [articulating a non-
exhaustive list of circumstances the court may consider, such as
whether: “[t]he objecting party is a member of the same
perceived cognizable group as the challenged juror”; “[t]he
alleged victim is not a member of that perceived cognizable
group”; and “race [or other protected status] . . . bear on the facts
of the case to be tried”].)
Perhaps the most significant departure from
Batson/Wheeler concerns the standard the court applies in
making this determination. In passing section 231.7, the
Legislature found that “requiring proof of intentional bias,” as
Batson/Wheeler does, “renders the procedure ineffective.”
(Stats. 2020, ch. 318, § 1, subd. (b).) In contrast to
Batson/Wheeler, the ultimate question under section 231.7 is
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Opinion of the Court by Kruger, J.
not whether the striking party has purposefully discriminated
on the basis of race or other protected status. The question is,
rather, whether “there is a substantial likelihood that an
objectively reasonable person would view race [or other
protected status] . . . as a factor in the use of the peremptory
challenge.” (§ 231.7(d)(1).) An “objectively reasonable person”
is one who is “aware that unconscious bias, in addition to
purposeful discrimination, have resulted in the unfair exclusion
of potential jurors in the State of California.” (Id.,
subd. (d)(2)(A).)
The statute sets out two categories of reasons that,
because of their association with discrimination, are treated as
invalid unless certain conditions are met. (§ 231.7, subds. (e),
(g); see Stats. 2020, ch. 318, § 1, subd. (b) [“many of the reasons
routinely advanced to justify the exclusion of jurors from
protected groups are in fact associated with stereotypes about
those groups or otherwise based on unlawful discrimination”].)
These reasons are presumed invalid unless rebutted; there is no
longer a presumption of validity, in contrast to the approach in
our Batson/Wheeler case law. (Cf. People v. Gutierrez (2017)
2 Cal.5th 1150, 1158 [“ ‘ “[u]nless a discriminatory intent is
inherent in the [striking party’s] explanation,” ’ the reason will
be deemed neutral”]; see also People v. Mai (2013) 57 Cal.4th
986, 1052 (Mai) [“the prosecutor’s demeanor observations, even
if not explicitly confirmed by the record, are a permissible race-
neutral ground for peremptory excusal, especially when they
were not disputed in the trial court”].)
The first category is set out in section 231.7,
subdivision (e) (section 231.7(e)), which provides: “A
peremptory challenge for any of the following reasons is
presumed to be invalid unless the party exercising the
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peremptory 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 other
protected status], and that the reasons articulated bear on the
prospective juror’s ability to be fair and impartial in the case.”
(§ 231.7, subd. (e); see id., subd. (f) [setting out further
instructions for the application of the clear and convincing
standard].) Subdivision (e) then lists a number of reasons that
are, broadly speaking, reasons disproportionately associated
with particular racial or other cognizable groups. These include,
for instance, “having a negative experience with law
enforcement,” “[n]ot being a native English speaker,” and
“[e]mployment in a field that is disproportionately occupied by
members” of cognizable groups. (Id., subd. (e)(1), (7), (10); see
also id., subd. (e)(13) [adding “[a]ny justification that is
similarly applicable to a questioned prospective juror or jurors,
who are not members of the same cognizable group as the
challenged prospective juror, but were not the subject of a
peremptory challenge by that party”].)
The second category, set forth in section 231.7,
subdivision (g), is the category at issue in this case.
Subdivision (g)(1) lists reasons that have “historically been
associated with improper discrimination in jury selection” that
relate to the prospective juror’s behavior, demeanor, or manner
of answering questions. (§ 231.7, subd. (g)(1).) The reasons are:
(A) “The prospective juror was inattentive, or staring or failing
to make eye contact”; (B) “The prospective juror exhibited either
a lack of rapport or problematic attitude, body language, or
demeanor”; and (C) “The prospective juror provided
unintelligent or confused answers.” (§ 231.7, subd. (g)(1)(A)–
(C).) Subdivision (g)(2) provides that such reasons “are
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Opinion of the Court by Kruger, J.
presumptively invalid unless the trial court is able to confirm
that the asserted behavior occurred, based on the court’s own
observations or the observations of counsel for the objecting
party. Even with that confirmation, the counsel offering the
reason shall explain why the asserted demeanor, behavior, or
manner in which the prospective juror answered questions
matters to the case to be tried.” (§ 231.7(g)(2).)
The statute states that if a court finds a peremptory
challenge improper during jury selection and the objecting party
so requests, the court must “[q]uash the jury venire and start
jury selection anew.” (§ 231.7, subd. (h)(1).) Otherwise, the
court may seat the prospective juror, provide the objecting party
additional challenges, or “[p]rovide another remedy as the court
deems appropriate.” (§ 231.7, subd. (h)(3)–(5).)
A denial of a section 231.7 objection “shall be reviewed by
the appellate court de novo, with the trial court’s express factual
findings reviewed for substantial evidence.” (§ 231.7, subd. (j).)
“The appellate court shall not impute to the trial court any
findings, including findings of a prospective juror’s demeanor,
that the trial court did not expressly state on the record,” and it
“shall not speculate as to or consider reasons that were not given
to explain either the party’s use of the peremptory challenge or
the party’s failure to challenge similarly situated jurors who are
not members of the same cognizable group as the challenged
juror.” (Ibid.) The statute instructs, finally: “Should the
appellate court determine that the objection was erroneously
denied, that error shall be deemed prejudicial, the judgment
shall be reversed, and the case remanded for a new trial.” (Ibid.)
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C.
Defendant Joel SanMiguel was tried by jury for willful,
deliberate, premeditated attempted murder and assault with a
deadly weapon, along with associated enhancements. (Pen.
Code, §§ 187, subd. (a), 664; id., § 245, subd. (a)(1).) Jury
selection commenced in August 2023, more than a year after
Code of Civil Procedure section 231.7 became applicable. The
prosecutor exercised a peremptory challenge to excuse
prospective juror S.M. Defense counsel made a section 231.7
objection, stating his client, SanMiguel, is “of Latino descent”
and “[S.M.], as far as [defense counsel] could tell, is — was the
only Latino man left of the 18.” Citing section 231.7, the trial
court asked the prosecutor to justify the strike.
The prosecutor initially gave several reasons. First, “the
victim in this case . . . is also Hispanic. I wouldn’t have a reason
to kick Hispanic people when I have a Hispanic on Hispanic
crime.” Second, S.M. “didn’t have much of anything to say. His
responses were extremely brief.” Third, “[t]here are other
people in the following six that are on the front that I believe
will be jurors that I prefer more to [S.M.].” And fourth, another
prospective juror “has a Hispanic surname. I have not kicked
her.”
The trial court requested clarification to understand
“exactly what the explanation was because the explanation
sounded like it was [S.M.] didn’t really say much of anything.”
The prosecutor reiterated that S.M. “did not have much to say
about what my questions were.” The prosecutor then added
“another” reason: that S.M. “was not fully following some of the
orders from the Court. He walked out with papers, walked back
in during breaks.” The prosecutor clarified he was referring to
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S.M. leaving with the court questionnaire, to which the trial
court responded it never “gave any orders about that” —
although it “would have if [it] would have thought about it.” The
prosecutor added “that [S.M.] walked back in when the rest of
the jury had already been excused. . . . [Y]ou look at these small
little things of what jurors are doing and how close they’re
paying attention to the process.” The prosecutor went on to
explain that he felt other prospective jurors were “being more
attentive” and “giving more eye contact,” whereas S.M. was
“kind of looking down. I don’t feel like he’s being as engaged as
other people are.”
The trial court “confirm[ed] exactly what the prosecutor
did say . . . about [S.M.’s] body language.” It “notice[d] that . . .
[S.M.] ha[d] a very flat affect, and he [was] looking down most
of the time. He [was] not responding to questions the same way
everybody else d[id]. There [was] no — he’s not making eye
contact at all. He was doing the same thing with the Court.”
The court continued “that [S.M.] did enter the courtroom at a
time when nobody else did,” which was not “a violation of a
Court order, necessarily, but it show[ed] that he’s not paying
attention to what everybody else is doing.” The court “den[ied]
the motion based on 231.7,” reiterating that it “understands
what the prosecutor is saying, and the Court can confirm the
same thing.”
At the completion of trial, the jury convicted SanMiguel of
attempted premeditated murder (Pen. Code, §§ 187, subd. (a),
664) and assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1)). The jury found true that SanMiguel personally
used a deadly and dangerous weapon (Pen. Code, § 12022,
subd. (b)(1)) and that he personally inflicted great bodily injury
(Pen. Code, § 12022.7, subd. (a)). The trial court sentenced
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SanMiguel to an indeterminate term of life with the possibility
of parole after seven years for the attempted murder,
consecutive to four years for the deadly weapon and great bodily
injury enhancements.
On appeal, SanMiguel argued the trial court erred in
denying his section 231.7 objection. A divided Court of Appeal
affirmed the denial. The majority acknowledged that several of
“the prosecutor’s stated reasons for challenging S.M.” were
“presumptively invalid under section 231.7, subdivision (g)”
because they “critiqued some combination of S.M.’s demeanor
and inattentiveness.” (People v. SanMiguel (2024)
105 Cal.App.5th 880, 889–890 (SanMiguel).) The majority
added that “section 231.7, subdivision (g)(2) contains both
‘ “confirmation” ’ and ‘ “explanation” ’ requirements,” and while
the majority questioned “why behaviors like inattentiveness
would require further explanation,” it acknowledged that “the
prosecutor and trial court could have made a more extensive and
thorough inquiry.” (Id. at pp. 890–891.) The majority
concluded, however, that reversal was unwarranted because
S.M.’s “lack of attention alone” both “overc[ame] the
presumption of invalidity” and “was a sufficient reason for his
dismissal.” (Id. at p. 891.) The majority reasoned: “No matter
what a person’s background, race, or economic standing, if the
juror does not pay attention, the juror does not belong on any
jury.” (Ibid.)2
2
Justice Yegan also wrote a concurring opinion.
(SanMiguel, supra, 105 Cal.App.5th at pp. 891–893 (conc. opn.
of Yegan, J.).) He opined that the automatic reversal
requirement in section 231.7, subdivision (j) is unconstitutional
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Justice Cody, dissenting in part, “disagree[d] . . . with the
majority’s conclusion that the presumption of invalidity was
overcome.” (SanMiguel, supra, 105 Cal.App.5th at p. 894 (dis.
opn. of Cody, J.).) Because the “prosecutor never explained why
S.M.’s behavior ‘matter[ed] to the case to be tried,’ ” Justice Cody
concluded that the court “must treat as conclusive the
presumption that [S.M.] was excused for invalid, discriminatory
reasons.” (Id. at pp. 894–895 (dis. opn. of Cody, J.).) Justice
Cody noted: “One may well wonder why behaviors like
inattentiveness would require further explanation.” (Id. at
p. 895 (dis. opn. of Cody, J.).) But the court was not, in her view,
“at liberty to delete the unambiguous explanation requirement.”
(Ibid.) Justice Cody added that “[t]he prosecutor’s remaining
reasons for challenging S.M. [were] unsupported by the record
or [were] otherwise unpersuasive.” (Ibid.) We granted review
to address the court’s interpretation of section 231.7,
subdivision (g) (section 231.7(g)).
II.
We consider the interpretation of section 231.7(g) de novo,
reading the provision in its broader statutory context and giving
the language its usual and ordinary meaning. (People v.
Castillolopez (2016) 63 Cal.4th 322, 329.) “If the language is
clear in context, our work is at an end. If it is not clear, we may
consider other aids, including the statute’s legislative history.”
(National Lawyers Guild v. City of Hayward (2020) 9 Cal.5th
488, 498.)
because it violates the separation of powers doctrine. No party
in this case challenges the constitutionality of section 231.7 and
we do not address the meaning or constitutionality of
subdivision (j) here.
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Section 231.7(g) provides, as relevant here, that when a
striking party offers one of the listed behavior-based reasons —
for instance, the prospective juror’s inattentiveness, level of eye
contact, or lack of rapport with counsel — that reason is
“presumptively invalid unless the trial court is able to confirm
that the asserted behavior occurred, based on the court’s own
observations or the observations of counsel for the objecting
party. Even with that confirmation, the counsel offering the
reason shall explain why the asserted demeanor, behavior, or
manner in which the prospective juror answered questions
matters to the case to be tried.” (§ 231.7(g)(1)–(2).)
The primary issue SanMiguel raises is whether the
presumptive invalidity of a behavior-based reason for striking a
prospective juror has been rebutted when the trial court
confirms that the asserted behavior occurred but counsel has not
explained why the behavior “matters to the case to be tried.”
(§ 231.7(g)(2).) As the case comes to us, however, there is no
dispute on this point. The Attorney General agrees that when a
striking party offers a behavior-based reason, both confirmation
and explanation are necessary to rebut the presumption that the
reason is invalid.
Even though the parties agree on this first, threshold
point, it bears further examination. The question whether the
explanation required by section 231.7(g) is necessary to rebut
the statutory presumption of invalidity implicates other
questions regarding the meaning of the statute — including the
question that does now divide the parties, which concerns what
it means, precisely, to say that the presumption of invalidity has
not been rebutted.
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A.
The parties’ view that an explanation is required to rebut
the presumption of invalidity tracks the rule articulated by
appellate courts to address the issue. Although none has
engaged in extensive analysis, all of the Courts of Appeal (with
the arguable exception of the court in this case) have read the
statute as setting up two requirements for rebutting the
statutory presumption that a behavior-based reason is invalid:
(1) confirmation of the behavior; and (2) an explanation of why
the behavior matters. (People v. Ortiz (2023) 96 Cal.App.5th
768, 794 (Ortiz); People v. Caparrotta (2024) 103 Cal.App.5th
874, 890–891 (Caparrotta); People v. Barnes (2024)
107 Cal.App.5th 560, 582.)
We are not, however, bound by the parties’ or the appellate
courts’ interpretation of the law; its meaning falls to us to
decide. (See, e.g., People v. Lopez (2020) 9 Cal.5th 254, 268.)
And although we ultimately take the same view, the issue is not
as straightforward as the case law or the parties’ agreement
might suggest. Only confirmation is explicitly described in
section 231.7(g)(2) as a requirement for rebutting the
presumption of invalidity. The explanation requirement is set
forth in a separate sentence that, on its face, neither specifies
what sort of explanation is required nor says anything about
rebutting the presumption. The statute does speak in
mandatory terms: “The counsel offering the reason shall
explain why the asserted demeanor . . . matters to the case to be
tried.” (§ 231.7(g)(2), italics added.) That of course means an
explanation is required. (E.g., In re Dannenberg (2005)
34 Cal.4th 1061, 1087.) But does it mean that an explanation is
required to rebut the presumption of invalidity?
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It is not uncommon for statutes to impose requirements
without specifying precisely what consequences flow from
failure to comply. (See, e.g., Kabran v. Sharp Memorial Hosp.
(2017) 2 Cal.5th 330, 340 [describing so-called directory statutes
for which no consequence is specified]; Edwards v. Steele (1979)
25 Cal.3d 406, 410 [“generally, requirements relating to the
time within which an act must be done are directory rather than
mandatory or jurisdictional, unless a contrary intent is clearly
expressed”].) One might plausibly conclude that while
section 231.7(g) requires an explanation, an explanation is not
required to rebut the presumption of invalidity; instead, by
failing to specify the consequences of failing to explain the
reason, the statute leaves it to the court to decide whether it
should nonetheless consider the reason as part of its totality-of-
the-circumstances determination under section 231.7(d)(1).
The text alone does not clearly tell us whether an
explanation is required to rebut the presumption of invalidity
under section 231.7(g), so we must consider the role that these
component parts are designed to play in the larger statutory
scheme. (See, e.g., People v. Pennington (2017) 3 Cal.5th 786,
795 [“If the words appear susceptible of more than one
reasonable construction, we look to other indicia of legislative
intent, bearing in mind the admonition that ‘[t]he meaning of a
statute may not be determined from a single word or sentence’
[citation] and that apparent ‘ambiguities often may be resolved
by examining the context in which the language appears and
adopting the construction which best serves to harmonize the
statute internally and with related statutes’ ”].) The inquiry
leads us to two further questions: (1) what kind of explanation,
precisely, the statute demands; and (2) what happens if the
presumption of invalidity is not overcome.
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B.
To answer the first question, we start by reviewing the
Legislature’s overarching purposes in enacting section 231.7 in
general, and section 231.7(g) in particular. The Legislature’s
uncodified findings explain its intent to “put into place an
effective procedure for eliminating the unfair exclusion of
potential jurors” for reasons infected by discrimination.
(Stats. 2020, ch. 318, § 1, subd. (a).) One of the Legislature’s
central concerns was identifying and preventing conscious and
unconscious bias affecting jury selection. (See id. at § 1,
subd. (a) [“It is the intent of the Legislature that this act be
broadly construed to further the purpose of eliminating the use
of group stereotypes and discrimination, whether based on
conscious or unconscious bias, in the exercise of peremptory
challenges”]; see also Assem. Com. on Judiciary, Analysis of
Assem. Bill No. 3070, supra, as amended May 4, 2020, p. 6
[“[T]he existing procedure cannot address strikes exercised
because of implicit bias, that is, unconscious or automatic
attitudes and stereotypes”].) With this overarching goal in
mind, the Legislature crafted procedures designed to give both
trial and appellate courts more information to assess whether
conscious or unconscious bias was likely a factor in the
peremptory challenge — as is evidenced by the requirement
that a striking party state its reasons when an objection is made,
regardless of whether a prima facie case of discrimination is
established (§ 231.7, subd. (c)), and the requirement that the
court explain the reasons for its ruling on the record
(§ 231.7(d)(1)). The former requirement in particular, as the
Assembly Committee on the Judiciary analysis explained, gives
“appellate courts . . . more information with which to determine
whether discrimination occurred during jury selection.” (Assem.
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Com. on Judiciary, Analysis of Assem. Bill No. 3070, supra, as
amended May 4, 2020, p. 10.)
As numerous courts have recognized, demeanor- and
behavior-based reasons, by their nature, pose several potential
challenges and risks. For one, “ ‘explanations which focus upon
a venireperson’s body language or demeanor . . . are subjective
and can easily be used . . . as a pretext for excluding persons on
the basis of race’ ” or other protected status. (People v. Hicks
(2024) 103 Cal.App.5th 1229, 1240; see also Harris v. Hardy (7th
Cir. 2012) 680 F.3d 942, 965 (Harris) [“Demeanor-based
explanations for a strike are particularly susceptible to serving
as pretexts for discrimination”].) Demeanor- or behavior-based
strikes can also reflect unconsciously held attitudes rooted in
stereotypes or cultural misunderstandings. (See Batson, supra,
476 U.S. at p. 106 (conc. opn. of Marshall, J.) [“A prosecutor’s
own conscious or unconscious racism may lead him easily to the
conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’
a characterization that would not have come to his mind if a
white juror had acted identically”]; see also, e.g., Tremblay,
Interviewing and Counseling Across Cultures: Heuristics and
Biases (2002) 9 Clinical L.Rev. 373, 394 [explaining that
cultural differences in patterns of eye contact can lead to a
mistaken “inference that the listener is inattentive”].) In some
cases, what a striking party interprets as a problematic attitude
may in reality represent a reasonable reaction to the striking
party’s own exhibition of bias or other problematic behavior.
(See People v. Silas (2021) 68 Cal.App.5th 1057, 1106 [observing,
where prosecutor gave as a reason for striking a Black
prospective juror that she was “openly hostile” in response to
questioning about Black Lives Matter, that the prospective juror
“became hostile when subjected to concededly inappropriate
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questions”].) And reasons based on a person’s demeanor or
behavior in the trial court, unless explored on the record, are
difficult to evaluate on appeal. (See, e.g., People v. Lenix (2008)
44 Cal.4th 602, 626 [“ ‘ “An appellate court can read a transcript
of the voir dire, but it is not privy to the unspoken atmosphere
of the trial court — the nuance, demeanor, body language,
expression and gestures of the various players” ’ ”]; accord, id. at
p. 634 (conc. opn. of Moreno, J.) [“[P]eremptory challenges may
turn upon perceptions not available to someone reading the cold
record — the tone of voice, facial expression, body language, etc.,
of the prospective juror”]; People v. Poore (2022) 13 Cal.5th 266,
294 [“ ‘[A] trial judge who observes and speaks with a
prospective juror and hears that person’s responses (noting,
among other things, the person’s tone of voice, apparent level of
confidence, and demeanor), gleans valuable information that
simply does not appear on the record’ ”].)
The requirements of subdivision (g)(2) respond to these
concerns in a manner designed to advance the overarching aims
of section 231.7. The requirement of the trial court’s
confirmation, “based on [its] own observations or the
observations of counsel for the objecting party,” guards against
reliance on mischaracterizations or misperceptions of a
prospective juror’s demeanor. (§ 231.7(g)(2).) The requirement
to explain the relevance of the observed behavior enables the
court to assess the fit between the asserted behavior and the
striking party’s understanding of the significance of that
behavior, to evaluate the strength or weakness of the inferences
that the striking party is drawing from the behavior, and so to
evaluate what the reason says about whether an objective
observer would likely find conscious or unconscious bias was
involved. Taken together, compliance with these requirements
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means that more information is put on the record to facilitate
appellate review.
To understand the function of the explanation
requirement is to understand both the nature of the
requirement and why it is a necessary condition for overcoming
the presumption of invalidity. The statute does not specify a set
of magic words the striking party must use to explain why an
observed behavior matters to the case. Nor does it specify a
particular sequence or order of operations in which confirmation
of the behavior and explanation of its relevance must occur.
While the statutory language sets forth requirements — the
party must state reasons for exercising the peremptory
challenge (§ 231.7, subd. (c)), and when one of those reasons is a
behavior-based reason, the trial court must confirm the asserted
behavior and the party must explain it (§ 231.7(g)) — the statute
does not prescribe a particular verbal formula or dictate an
order in which these requirements must be satisfied.3 As such,
a party may provide the requisite explanation either before or
after the trial court’s confirmation. Likewise, a party may
provide an explanation either separately from, or together with,
its statement of reasons.
3
Some Courts of Appeal have, in dicta, described
section 231.7(g)(2) as setting forth a “two-step process,”
suggesting that the court must confirm the behavior occurred
before counsel may explain why the behavior matters. (E.g.,
People v. Ortiz, supra, 96 Cal.App.5th at p. 794.) The
requirements are, of course, listed in this order in the statute,
but nothing requires that they be fulfilled sequentially; there is
no reason why counsel’s explanation cannot precede the court’s
confirmation.
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The explanation requirement is not formalistic, but
functional. What the statute requires is a striking party’s
explanation of the relevance of an observed behavior that is
sufficient to permit a court to evaluate the reason as part of the
totality-of-the-circumstances inquiry under section 231.7(d)(1).
That is, the explanation must provide sufficient insight into the
striking party’s thought process to reveal the case-related
inferences that they are drawing from the observed behaviors,
and thus to permit the court to evaluate whether those
inferences indicate that bias played a role in the challenge. A
court may be able to confirm the striking party’s observation
that a prospective juror was not making eye contact during
questioning, for example, but the court cannot evaluate the
reason as section 231.7 requires unless it knows what inferences
the striking party is drawing from that behavior: Is the striking
party interpreting the failure to make eye contact as a sign of
timidity that would affect the prospective juror’s ability to hold
firm in contested deliberations? Hostility to one of the parties?
Failure to pay attention? While some inferences will reveal
valid concerns about a prospective juror’s fitness, others may
indicate bias in the form of unexamined associations,
subconscious attitudes, or stereotypes.
The Court of Appeal in this case appeared to dismiss the
significance of the explanation requirement because it
considered the relevance of behaviors like “inattentiveness” — a
behavior expressly enumerated in the statute — to be too
obvious to require explanation. (See SanMiguel, supra,
105 Cal.App.5th at p. 890; see also id. at p. 895 (dis. opn. of
Cody, J.) [also questioning why the statute requires the striking
party to explain the relevance of juror inattentiveness].) For a
certain kind of observations about inattentiveness, the Court of
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Appeal makes a fair point. Fair adjudication in any trial setting
requires jurors to pay careful attention to the evidence
presented, the arguments of counsel, and instructions of the
court. (See, e.g., Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388,
411 [“The duty to listen carefully during the presentation of
evidence at trial is among the most elementary of a juror’s
obligations. . . . Were the rule otherwise, litigants could be
deprived of the complete, thoughtful consideration of the merits
of their cases to which they are constitutionally entitled”];
People v. Ramirez (2006) 39 Cal.4th 398, 458 [affirming
discharge of a juror where “the trial judge had observed that the
juror had difficulty paying attention during trial and appeared
to fall asleep”].)
Where the striking party observes a specific behavior that
is obviously inconsistent with a prospective juror’s duty to pay
attention to courtroom proceedings — say, continuously
sleeping while the court provides instructions — the observation
alone may well be sufficient to enable a court to evaluate the
reason as part of the section 231.7 analysis. No real purpose
would be served by requiring the striking party to rehearse why
it is important for jurors to remain awake and pay attention
when the judge speaks. A reason involving a specific behavior
that clearly demonstrates an inability to fulfill the basic
functions of a juror already adequately explains why the
observed behavior “matters to the case to be tried.”
(§ 231.7(g)(2).)
But the same is not true of many reasons that might relate
to “inattentiveness” in some broad sense. If the striking party
says a prospective juror was excused because the juror appeared
not to be paying attention when another member of the jury
venire was talking during a break, it is not clear what case-
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PEOPLE v. SANMIGUEL
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related inferences the striking party is drawing about the
prospective juror’s ability to pay attention when court is in
session. The same is true of the prospective juror who is
observed staring into space while other prospective jurors are
being questioned, or who frequently glances at her watch. These
behavior-based reasons, without more, do not convey the case-
related significance the striking party has attached to the
behavior. An explanation of the relevance of these types of
observations about a prospective juror’s perceived
inattentiveness thus serves the important purpose of surfacing
the case-related inferences that the striking party is drawing,
and an explanation is thus necessary for the court to evaluate
whether those inferences indicate that bias played a role in the
challenge.
Because nearly all behavior-based conclusions about a
prospective juror’s fitness for service will involve some degree of
inferential reasoning, litigants should strongly err on the side of
explaining what inferences they are drawing from the conduct
they observe in the courtroom. The risks of failing to provide an
adequate explanation are high. Ultimately, if the striking party
does not offer enough information to permit the court to assess
whether the behavior-based reason for the strike was infected
with bias, then the statute cannot fulfill its central goal of
identifying and eradicating discrimination, whether conscious
or unconscious, in the selection of jurors. It follows ineluctably
that the presumption of invalidity has not been rebutted.
C.
The question remains, however: What does it mean to say
the presumption of invalidity has or has not been rebutted?
SanMiguel, relying on the Court of Appeal’s decision in
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Caparrotta, argues that when a behavior-based reason is
invalid, that necessarily means that discrimination was likely a
factor in the strike, meaning the strike must be found unlawful.
(See Caparrotta, supra, 103 Cal.App.5th at p. 891.) The
Attorney General disagrees. He argues that when the required
explanation is not provided for a behavior-based reason, that
does not necessarily resolve the challenge’s lawfulness; rather,
a court should proceed to the section 231.7(d)(1) totality-of-the-
circumstances analysis.
To resolve this debate, we return to the statutory text.
Section 231.7(g)(2) provides that “[t]he reasons set forth in
paragraph (1) are presumptively invalid” unless the trial court
confirms the behavior and counsel explains it. (Italics added.)
So, by the terms of the statute, whether the confirmation and
explanation requirements are satisfied goes to the validity of the
section 231.7, subdivision (g)(1) reason. The court must still
rule on the objection to the peremptory challenge.
Section 231.7, subdivision (d) sets forth that inquiry. The
court evaluates “the reasons given to justify the peremptory
challenge in light of the totality of the circumstances” without
“speculat[ing] on, or assum[ing] the existence of, other possible
justifications.” (§ 231.7(d)(1).) “If the court determines there is
a substantial likelihood that an objectively reasonable person
would view race [or other protected status] . . . as a factor in the
use of the peremptory challenge, then the objection shall be
sustained.” (Ibid.) This totality-of-the-circumstances inquiry is
mandatory in all cases. (Ibid. [“The court shall evaluate the
reasons given to justify the peremptory challenge in light of the
totality of the circumstances”].)
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When the striking party gives a behavior-based reason
and the confirmation and explanation requirements for that
behavior-based reason are satisfied, the court proceeds to
evaluate that behavior-based reason alongside other “reasons
given to justify the peremptory challenge in light of the totality
of the circumstances.” (§ 231.7(d)(1).) The explanation is one
circumstance the court may consider in this analysis. (See Ortiz,
supra, 96 Cal.App.5th at p. 804 [stating the court “may consider
the substance of the prosecutor’s explanation, as part of ‘the
totality of the circumstances’ inquiry”].) Other circumstances
include: the identity group of the objecting party, challenged
juror, alleged victim, and witnesses; whether race or other
protected status bears on the facts of the case to be tried; the
type and manner of questions posed to the challenged juror;
whether other prospective jurors gave similar answers; whether
a reason is disproportionately associated with race or other
protected status; whether a reason is unsupported by the record;
and whether counsel has disproportionately used peremptory
challenges against members of a protected group in the present
or past cases. (§ 231.7, subd. (d)(3).) Ultimately, the court —
considering the confirmed behavior-based reason, the
accompanying explanation, other reasons given, and other
relevant circumstances — must decide whether “there is a
substantial likelihood that an objectively reasonable person
would view race [or other protected status] . . . as a factor in the
use of the peremptory challenge.” (§ 231.7(d)(1).)
Drawing on Caparrotta, SanMiguel argues that when the
striking party gives a behavior-based reason and the
confirmation or explanation requirement for that behavior-
based reason is not satisfied, the behavior-based reason becomes
conclusively invalid. And if the reason is conclusively invalid,
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SanMiguel argues, that means that the peremptory strike is
likewise invalid, because it has conclusively been established
that improper discrimination was “a factor in the use of the
peremptory challenge.” (§ 231.7(d)(1).) On this view, the court
does not — and may not — consider any other valid reasons the
striking party may proffer, nor does it consider any other
relevant circumstances under section 231.7, subdivision (d)(3).
SanMiguel reasons that “the Legislature would not have set up
a procedure under which a trial court could overrule an objection
after a peremptory challenge was already determined to be
based, at least in part, on an invalid reason.” (Caparrotta,
supra, 103 Cal.App.5th at p. 897; see ibid. [concluding that the
trial court properly upheld a section 231.7 objection to strikes by
the defense where the court did not confirm counsel’s
observations about the prospective jurors’ behavior, though
counsel also offered other reasons for the strikes].)
This argument misreads the presumption that a
section 231.7(g) behavior-based reason is “invalid” as a
presumption that the reason is inherently infected with
discrimination. The confusion is perhaps understandable,
because, as the Caparrotta court observed, in both
subdivisions (e) and (g), the statute lists reasons that are
treated as “ ‘presumptively invalid’ ” without defining what
“ ‘invalid’ ” means, or how a finding of invalidity relates to the
overall inquiry into whether impermissible discrimination was
a factor in the strike. (Caparrotta, supra, 103 Cal.App.5th at
p. 885.)
We have no occasion here to consider the effect of failing
to rebut the presumption of invalidity under section 231.7(e),
which lists reasons such as “[e]xpressing a distrust of or having
a negative experience with law enforcement,” “[h]aving a close
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relationship with people who have been stopped, arrested, or
convicted of a crime,” and “[h]aving a child outside of marriage.”
(§ 231.7(e)(1), (3), (5).) That provision contains different
language and prescribes a different procedure to overcome the
presumption. As to section 231.7(g), SanMiguel emphasizes
introductory language stating that the listed behavior-based
reasons “have historically been associated with improper
discrimination in jury selection.” (§ 231.7, subd. (g)(1).) But the
provision contains no indication that behavior-based reasons
like inattentiveness or confused answers are presumed invalid
because they are inherently associated with group stereotypes
or bias, and we see no basis to reach that conclusion. In the
absence of any indication to the contrary, we presume the
Legislature’s concern is the distinct concern that judicial
decisions have long recognized: that the nature of behavior-
based reasons, particularly with regard to certain types of
behavior, makes them readily available vehicles for concealing
or obfuscating bias.
As a logical matter, failure to rebut the presumption that
a behavior-based reason is invalid assuredly means that the
reason should not be relied on to justify the strike, because the
risk of pretextual or other improper use remains.4 But failure
4
Notably, this is a significant break from our
Batson/Wheeler jurisprudence, where a behavior-based reason
was presumed to be legitimate if the opposing party did not
dispute that the behavior occurred. (Mai, supra, 57 Cal.4th at
p. 1052.) Under the new law, unless the observed behavior is
confirmed and adequately explained, the court considers any
such reason as invalid in the totality-of-the-circumstances
analysis. And in addressing any such reason in light of the
totality of the circumstances, the court considers, with the
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to rebut the presumption is not necessarily determinative of
whether an objective observer would likely view discrimination
as a factor in the peremptory challenge, without regard to the
other circumstances present in the case. Imagine, for example,
that an attorney exercises a peremptory challenge on the ground
the prospective juror was rolling her eyes when the attorney was
speaking, but neither the trial court nor opposing counsel saw
the eye rolling. In this scenario, because the behavior cannot be
confirmed, the statute states explicitly that the presumption of
invalidity is not rebutted. (§ 231.7(g)(2).) But the lack of
confirmation does not necessarily mean that the reason was
motivated by improper discrimination; it means only that the
judge or opposing counsel did not see it and so cannot verify that
it occurred.5
The same is true for the explanation requirement.
Imagine an attorney exercises a peremptory challenge because
a prospective juror repeatedly and loudly sighed, in what
benefit of argument from both parties and among other
considerations, whether its inability to confirm the behavior was
due to the fact that the behavior did not actually occur, was
otherwise not significant enough to register as observable, or
was due to the court’s attention elsewhere.
5
To this hypothetical scenario, SanMiguel responds that if
the trial court fails to observe the behavior in question, this is
“unfortunate” but the invalidation of the reason is “attributable
to the neglect” of the court, as well as the attorney who failed to
call the behavior to the court’s attention at the time. It is,
however, simply not realistic to expect that even the most
attentive of trial courts will witness every behavior exhibited by
every one of the dozens of people occupying the courtroom at all
times during jury selection. And whether reflective of neglect or
not, the trial court’s inability to observe the challenged behavior
is not logically indicative of bias.
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appeared to be an exasperated manner, during voir dire. Once
the trial court and opposing counsel agree they heard the
sighing, the conversation moves on, without exploring what
inferences the striking party drew from the behavior about the
prospective juror’s performance as a juror. In this scenario, the
failure to rebut the presumption of invalidity means that the
trial court and reviewing court should not rely on the sighing to
justify the strike. But the failure to explain the significance of
the observation about the prospective juror’s repeated and loud
sighing does not, without more, logically establish that the
reason was reflective of bias. This behavior stands in contrast
to other demeanor-based behaviors, such as periodic lack of eye
contact, or vaguely “problematic . . . body language”
(§ 231.7(g)(2)), that are “particularly susceptible to serving as
pretexts for discrimination” (Harris, supra, 680 F.3d at p. 965)
and indicative of bias.
To conclude that a peremptory challenge fails if the
striking party provides any behavior-based reason that is
unaccompanied by confirmation from the court or an
explanation by the striking party not only would test the bounds
of logic, but it might well compromise the important goals that
Assembly Bill No. 3070 aims to achieve. If the court were
required to automatically sustain a section 231.7 objection for
lack of confirmation or explanation — including when, for
instance, the lack of confirmation is due to the court’s inability
to see the behavior when it occurred — parties may hesitate to
ever give a behavior-based reason, even when the behavior-
based reason is the actual reason for the peremptory strike.
(§ 231.7(d)(1) [“The court shall consider only the reasons
actually given”].) It would contravene the goals of Assembly
Bill No. 3070 if attorneys were to hesitate to give their actual
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reasons for exercising a peremptory challenge for fear of having
the strike invalidated either at trial or on appeal because of
circumstances that are unrelated to bias and, in some cases,
beyond their control.6
Ultimately, whether a subdivision (g)(1) reason is or is not
valid does not necessarily determine whether the strike is valid;
in all circumstances, the ultimate inquiry for the court is
whether, evaluating all of the reasons in light of the totality of
the circumstances, there is a substantial likelihood that an
objective observer would view race or other protected status as
a factor. (§ 231.7(d)(1).)
Of course, in a situation where the court determines that
a behavior-based reason is in fact indicative of bias, such a
finding — regardless of other reasons offered for the strike —
will establish for purposes of the overarching section 231.7(d)(1)
inquiry that race or other protected status was “a factor in the
use of the peremptory challenge” and thus “the objection shall
be sustained.” (§ 231.7(d)(1), italics added.) But the same is not
true in every case in which, for whatever reason, a behavior-
based reason is not confirmed or explained. The fact that
counsel cited an observation about a prospective juror that the
court did not, or could not, corroborate, or that counsel failed to
6
It is, of course, true that even under the principles we have
explained here, a striking party who raises a behavior-based
reason runs the risk that a court may interpret the juror’s
behavior differently and thus forbid reliance on that reason. To
the extent the striking party is concerned about relying on
reasons related to behaviors that are ambiguous or otherwise
open to interpretation, it is worth noting that, under this
statute, the inferences drawn from ambiguous behaviors may
most safely be explored by additional questioning related to the
inference or the behavior.
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explain what they perceived as its relevance, are certainly
factors to consider in the totality-of-the-circumstances
inquiry — as are the reasons the confirmation or explanation
requirements were not satisfied. It is one thing if, for example,
the confirmation requirement is not satisfied because the trial
court and opposing counsel did not see a fleeting behavior,
where the striking party’s stated concerns about that behavior
contain no suggestion of bias or pretext, and the fleeting
behavior was one of several reasons for a peremptory strike. It
is different, however, if the confirmation requirement is not
satisfied because the trial court disagreed with counsel’s
characterization of an observed behavior, determined the
behavior did not occur at all, or was troubled by the inference
counsel drew from it. The latter scenarios indicate a greater risk
that bias played a role and thus will bear differently on the
section 231.7(d)(1) inquiry. But in either scenario, the court
considers the failure to confirm or explain alongside the totality
of circumstances to decide whether there is a substantial
likelihood that an objectively reasonable person would view race
or other protected status as a factor in the peremptory
challenge.7
D.
To sum up: Even though section 231.7(g)(2) does not say
so in as many words, the statute is most reasonably read to
mean that an explanation is required to overcome the
presumption that a behavior-based reason is invalid. Again, the
requirement is not a formalistic, but a functional one. What is
7
We disapprove People v. Caparrotta, supra, 103 Cal.App.5th
874, 890–891, 894 and People v. Barnes, supra, 107 Cal.App.5th
560, 582 to the extent they articulate a different rule.
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PEOPLE v. SANMIGUEL
Opinion of the Court by Kruger, J.
required is an explanation sufficient for the court to evaluate
what the striking party perceives as the relationship between
the observed behavior and the prospective juror’s ability to
perform the functions of a juror. While there may be rare cases
in which the observed behavior is so obviously inconsistent with
the role of a juror that no further explanation is required to
permit meaningful evaluation, a striking party should always
hesitate before assuming that any behavior-based reason is one
that, in essence, speaks for itself. If the striking party does not
offer enough information to permit the court to assess whether
the behavior-based reason for the strike was infected with bias,
then the striking party has not satisfied the explanation
requirement, and the reason may not be relied on to justify the
strike.
But in any event — whether the reason is considered
invalid or not — the court must then proceed to ask the ultimate
question under section 231.7(d)(1): Whether, based on an
evaluation of all the reasons given to justify the peremptory
challenge in light of the totality of the circumstances, there is a
substantial likelihood that an objectively reasonable person
would view race or other protected status as a factor in the
strike.
III.
With these general principles about section 231.7(g) in
mind, we turn to the decision on review. The Court of Appeal in
this case concluded that once the trial court confirmed the
prosecutor’s observations about prospective juror S.M.’s
attentiveness, the presumption of invalidity was rebutted,
without squarely addressing the statute’s explanation
requirement. It then proceeded to rely exclusively on counsel’s
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PEOPLE v. SANMIGUEL
Opinion of the Court by Kruger, J.
and the court’s observations about S.M.’s behavior to conclude
that an objectively reasonable person would not have perceived
race as a factor in the strike.
To the extent the Court of Appeal concluded that the
explanation requirement is dispensable, we conclude it erred.
But neither the court nor the parties have yet had the
opportunity to consider the issue in light of this court’s guidance
about what the prosecutor was required to explain. Specifically,
neither side has yet explored whether, how, or why the
prosecutor’s statement of reasons did or did not convey why
S.M.’s observed behaviors mattered to the case, such that the
court could adequately evaluate the reason as part of its
overarching determination of whether an objective observer
would view race or other protected status as a factor in the
exercise of the peremptory challenge. We thus allow the parties
and the court to address that issue in the first instance.
We caution, however, that the answer to that question is
not dispositive of the appeal. For reasons already explained, a
finding that the presumption of invalidity was not overcome
means the reason may not be relied on to justify the strike, but
it does not, as SanMiguel has argued, definitively establish that
the strike was invalid. Conversely, even if the Court of Appeal
was correct in concluding that the presumption of invalidity was
adequately rebutted, the Court of Appeal erred in treating a
concern that S.M. was comparatively less attentive than other
prospective jurors as independently dispositive of the
section 231.7(d)(1) determination. The Court of Appeal may still
conclude, after weighing other reasons and relevant
circumstances, that an objective observer would still likely
conclude that race or other protected status was a factor in the
peremptory challenge.
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PEOPLE v. SANMIGUEL
Opinion of the Court by Kruger, J.
In the decision on review, the Court of Appeal emphasized
“S.M.’s lack of attention,” stating that “[t]he prosecution had a
legitimate reason to be concerned about S.M.’s ability to be ‘fair
and impartial’ ” because “[n]o matter what a person’s
background, race, or economic standing, if the juror does not pay
attention, the juror does not belong on any jury.” (SanMiguel,
supra, 105 Cal.App.5th at p. 891, quoting § 231.7, subd. (f).)
The Court of Appeal added that “no capable attorney would fail
to challenge . . . a juror [like S.M.] unless the attorney had what
is known in the trade as a dead-bang loser.” (SanMiguel, at
p. 891.) These characterizations overstate the record. The
record does not indicate that S.M. was persistently inattentive
to courtroom proceedings. It indicates that the prosecutor
thought S.M. was paying less “attention to the process” than
other jurors because S.M. “walked back in when the rest of the
jury had already been excused.” And it indicates that the
prosecutor “fe[lt] like [other prospective jurors were] being more
attentive” because they were “giving more eye contact to me”
whereas S.M. was “kind of looking down.” Given the purpose of
section 231.7, and section 231.7(g) in particular, the statute
requires courts to closely examine inferences like one equating
looking down and avoiding eye contact with not paying attention
as part of evaluating a section 231.7 objection.
Moreover, the prosecutor raised inattentiveness as a
justification only after giving several other reasons for striking
S.M. Of those initial reasons, the only one pertaining to S.M.
was the brevity of his answers. That the prosecutor had no
“reason to kick Hispanic people” and that he preferred “other
people in the following six” does not explain why the prosecutor
considered S.M. to be an undesirable juror. (Cf. Batson, supra,
476 U.S. at p. 98 [a prosecutor may not rebut a defendant’s
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PEOPLE v. SANMIGUEL
Opinion of the Court by Kruger, J.
prima facie case of purposeful discrimination “ ‘merely by
denying that he had a discriminatory motive or “affirm[ing] [his]
good faith in making individual selections” ’ ”]; see also People v.
Cisneros (2015) 234 Cal.App.4th 111, 120–122 [prosecutor’s
stated reason that “she preferred the next prospective juror” was
“in effect, no reason at all” because “whenever counsel exercises
a peremptory challenge, it necessarily means that he or she
prefers the next prospective juror to the one being challenged”].)
It was only after the trial court requested clarification that the
prosecutor added “[a]nother thing”: that S.M. was not fully
following court orders, and then that S.M. was “kind of looking
down” and not “being as engaged as other people [were].” The
Court of Appeal did not address this sequence of events in its
analysis.
The Court of Appeal’s opinion also did not address other
relevant circumstances, such as “[t]he number and types of
questions” the prosecutor posed to S.M.; the race of SanMiguel
and the alleged victim; whether the prosecutor “question[ed]
[S.M.] about the concerns later stated . . . as the reason for the
peremptory challenge”; “[w]hether other prospective jurors . . .
provided similar, but not necessarily identical, answers but
were not the subject of a peremptory challenge”; and whether
race “bear[s] on the facts of the case to be tried.” (§ 231.7,
subd. (d)(3).) Because the statute calls for de novo review
(§ 231.7, subd. (j)), the Court of Appeal was required to evaluate
the reasons given in light of the totality of circumstances to rule
on the section 231.7 objection. Instead of engaging in this
analysis, the Court of Appeal concluded that “S.M.’s lack of
attention” both “overc[ame] the presumption of invalidity
under section 231.7, subdivision (g)(2)” and was itself “a
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PEOPLE v. SANMIGUEL
Opinion of the Court by Kruger, J.
sufficient reason for [S.M.’s] dismissal.” (SanMiguel, supra, 105
Cal.App.5th at p. 891.)
Because the Court of Appeal treated S.M. being less
attentive as S.M. being inattentive and further concluded S.M.’s
inattention by itself was dispositive as to the section 231.7(d)(1)
determination, we reverse the judgment of the Court of Appeal
and remand the case for further proceedings. On remand, the
court may permit the parties to raise any additional argument
concerning whether the prosecutor adequately explained his
concerns about S.M.’s attentiveness. The court should also
address whether, considering all of the prosecutor’s reasons in
light of the totality of the circumstances, an objectively
reasonable person would view race as a factor in the peremptory
challenge. (§ 231.7(d)(1).)
We end with a reminder for all litigants and courts that
face similar issues. The Legislature enacted section 231.7 for
the purpose of eliminating the taint of invidious discrimination,
whether conscious or unconscious, from the selection of juries.
If the statute is to fulfill that vital purpose, trial courts must
exercise care in ruling on section 231.7 objections, mindful of the
pernicious nature of the bias that the statute was designed to
combat. Appellate courts, in turn, must give scrupulous
consideration to the records before them to determine whether,
considering all relevant circumstances, the proceedings failed to
satisfy the principle of equal treatment embodied in
section 231.7.
IV.
We reverse the judgment of the Court of Appeal and
remand for further proceedings consistent with this opinion.
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PEOPLE v. SANMIGUEL
Opinion of the Court by Kruger, J.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
EVANS, J.
EGERTON, J.*
*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
39
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. SanMiguel
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 105 Cal.App.5th 880
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S287786
Date Filed: July 30, 2026
__________________________________________________________
Court: Superior
County: Ventura
Judge: Ryan J. Wright
__________________________________________________________
Counsel:
Matthew Alger, under appointment by the Supreme Court, for
Defendant and Appellant.
Galit Lipa, State Public Defender, and Laura Rogers, Deputy State
Public Defender, for the Office of the State Public Defender as Amicus
Curiae on behalf of Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Chief Assistant Attorneys General, Susan Sullivan Pithey
and Jeffrey M. Laurence, Assistant Attorneys General, Scott A. Taryle,
Idan Ivri and Blythe J. Leszkay, Deputy Attorneys General, for
Plaintiff and Respondent.
Dan Dow, District Attorney, and Richard J. Sachs, Deputy District
Attorney, for the Office of the District Attorney for the County of San
Luis Obispo as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Matthew Alger
Attorney at Law
P.O. Box 1319
Erie, CO 80516
(559) 658-6500
Blythe J. Leszkay
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6191