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Name: People v. Ortiz (2023) 96 Cal.App.5th 768
Case #: H050117
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 10/23/2023

Prosecutor’s use of a peremptory challenge against a Black prospective juror based on his failure to answer questions, his confusion about questions, and his evasiveness did not violate Code of Civil Procedure section 231.7. Following a jury trial, Ortiz was convicted of felony offenses. On appeal, he argued the trial court erred by overruling his section 231.7 objection to the prosecutor’s use of a peremptory challenge against a Black prospective juror, S.H. Held: Affirmed. The prosecutor’s reasons for challenging S.H. triggered an inquiry under section 231.7(g), which contains a list of presumptively invalid reasons for exercising a peremptory challenge related to a prospective juror’s demeanor, behavior, or manner. To overcome the presumption in subdivision (g), there is a two-step process: (1) the trial court must confirm that the asserted behavior occurred and (2) the attorney offering the reason for the challenge must explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried. Here, the trial court confirmed the prosecutor’s observations that S.H. provided unclear answers, failed to answer questions, was confused by some of the questions, was reluctant, and was evasive. These findings were supported by substantial evidence. The prosecutor explained that S.H.’s manner of answering questions and demeanor did not allow her to determine his views and impartiality, and this satisfied the explanation requirement in the second step. Viewing all the prosecutor’s reasons for the peremptory challenge independently and under the totality of the circumstances, the Court of Appeal concluded “that there is not a substantial likelihood that an objectively reasonable person would view race as a factor in the prosecutor’s use of a peremptory challenge against S.H. (§ 231.7, subds. (d), (j).)” The trial court did not err by overruling Ortiz’s objection. [Editor’s Note: Because section 231.7 provides broader protection than that afforded under Batson/Wheeler, Ortiz’s failure to demonstrate error under section 231.7 necessarily led the court to conclude that there was no violation of his constitutional rights to an impartial jury, a jury venire drawn from a representative cross-section of the community, and equal protection.]

The Court of Appeal could consider the prosecutor’s additional reasons for the peremptory challenge that were given during the explanation step of the subdivision (g) inquiry after the trial court suggested them. Under section 231.7, subdivisions (d) and (j), the trial court and reviewing court shall only consider the reasons the party exercising the peremptory challenge actually gave and shall not speculate as to or consider reasons that were not given to explain the party’s use of the peremptory challenge. Here, the Court of Appeal concluded that a reason is “actually given” if the party exercising the challenge states the reason before the trial court rules on the objection, even if the party did not articulate the reason when initially stating its reasons upon the objection and the trial court first suggested the reason. However, the court noted that it was “mindful that when the party exercising the peremptory challenge gives additional reasons after hearing comments by the court or arguments by the objecting party, such conduct may be suggestive of unlawful bias.” As a result, “trial courts should consider asking a party to state at the outset all of their reasons for exercising a peremptory challenge before inviting argument on the stated reasons or proceeding to the confirmation and explanation process (§ 231.7, subd. (g)(2)).” Although the prosecutor in this case added two reasons for her challenge after hearing comments from the trial court, they were grounded in the record and did not evince a lack of genuineness or unlawful bias. [Editor’s Notes: (1) The Court of Appeal analyzed section 231.7 and the procedures that must be followed in the trial court and the standards of review on appeal in detail in this opinion. The court noted that 231.7(e) contains a different list of presumptively invalid reasons for a peremptory challenge and sets forth a different process for overcoming the presumption. (2) The Court of Appeal also concluded the trial court did not abuse its discretion under Evidence Code section 352 in allowing the prosecution to admit additional testimony by a defense character witness about her daughter’s mid-trial disclosure of molestation by Ortiz for the limited purpose of determining how much weight to give the witness’s prior opinion regarding Ortiz’s good character. (3) The court also concluded the trial court properly instructed the jury with CALCRIM 1193 regarding CSAAS evidence.]