Prosecutor’s peremptory strike of a prospective juror who supported Black Lives Matter (BLM) was more likely than not motivated in substantial part by discriminatory intent, requiring reversal under Batson v. Kentucky (1986) 476 U.S. 79, and People v. Wheeler (1978) 22 Cal.3d 258. Prospective Juror 275, a 25-year-old Black woman, stated on the jury questionnaire that she supported BLM; in response to the prosecutor’s questioning, she stated she was aware of but did not support damaging property as a part of the movement. The prosecutor exercised a peremptory challenge against her. The court denied defendants’ motion to set aside the challenge. Held: Reversed. defendant established a prima facie case of discriminatory purpose for the challenge under the Batson/Wheeler three-step analysis, as the prosecutor’s questions about BLM were not neutral and suggested an antipathy toward the movement based on misperceptions or biases. There was also some evidence of historical discrimination by the prosecutor and her office. While the prosecutor stated a nondiscriminatory reason, meeting the low bar of facial neutrality, the justifications for the strike were not persuasive, as they were either unsupported by the record or based on inappropriate questioning about BLM.

[Editor’s Note: In a footnote, the court noted that Assembly Bill No. 3070 will significantly modify the Batson/Wheeler framework, but concluded that the legislation has no bearing on this appeal because it applies prospectively to trials “in which jury selection begins on or after January 1, 2022.”]