Filed 11/3/14 In re McGee CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re BRIAN McGEE,                                                   B253231

                                                                     (Los Angeles County
         on Habeas Corpus.                                           Super. Ct. No. TA100412)

                                                               ORDER MODIFYING OPINION
                                                               (NO CHANGE IN JUDGMENT)



THE COURT:
         IT IS ORDERED that the opinion filed herein on October 15, 2014, be modified
as follows:
         1. On page 18, the text of footnote 5 shall be deleted and replaced with the
              following text:
         McGee’s habeas petition includes several arguments regarding his Wheeler
motions that are unrelated to the issue of comparative juror analysis. He asserts (among
other things) that several of the prosecutor’s reasons for exercising his peremptory
challenges were “unsupported by the record” and irrelevant to the prospective juror’s
ability to serve on the panel. Each of these arguments was either considered in the direct
appeal or could have been raised in the direct appeal. We therefore decline to address the
claims. (See Reno, supra, 55 Cal.4th at p. 476 [legal claims previously rejected on direct
appeal cannot be “reraised” in a habeas petition]; In re Dixon (1953) 41 Cal.2d 756, 759
[“the writ [of habeas corpus] will not lie where the claimed errors could have been, but
were not, raised upon a timely appeal from a judgment of conviction”].)


       The foregoing does not affect a change in the judgment. Petitioner’s petition for
rehearing is denied.




_____________________________________________________________________
PERLUSS, P. J.               WOODS, J.,                     ZELON, J.




                                            2
Filed 10/15/14 In re McGee CA2/7 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re BRIAN McAUTHOR McGEE,                                          B253231

                                                                     (Los Angeles County
         on Habeas Corpus.                                           Super. Ct. No. TA100412)



         ORIGINAL PROCEEDING for petition for writ of habeas corpus, Arthur Lew,
Judge. Writ denied.
         Peter Gold, under appointment by the Court of Appeal, for Petitioner.
         Kamala D. Harris, Attorney General; Lance E. Winters, Senior Assistant Attorney
General; Kenneth C. Byrne, Supervising Deputy Attorney General; Julia A. Harris,
Deputy Attorney General, for Respondent.




                                        _________________________
       In a prior direct appeal, petitioner Brian McGee argued the trial court erred in
denying several “Wheeler/Batson motions” that asserted the prosecutor had exercised
peremptory challenges against African-American jurors in a discriminatory manner. (See
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S.
79 (Batson).) We affirmed McGee’s judgment of conviction, concluding that substantial
evidence supported the trial court’s finding that the prosecution had provided credible,
race-neutral reasons for striking each prospective juror. Although McGee requested that
we conduct a “comparative juror analysis” to evaluate the prosecutor’s justifications for
the strikes, we concluded that then-controlling California Supreme Court precedent
prohibited us from considering such evidence. Approximately four years after we issued
our decision, the Court clarified in People v. Lenix (2008) 44 Cal.4th 602 (Lenix) that
reviewing courts must consider comparative juror analysis when evaluating a
Wheeler/Batson claim.
       In his current petition, McGee argues that, in light of Lenix, we are now compelled
to consider his comparative juror analysis evidence. He further contends that such
evidence demonstrates the prosecutor acted with discriminatory intent. We deny the
petition.
                  FACTUAL AND PROCEDURAL BACKGROUND
       A. Summary of Events Preceding McGee’s Trial
            1. Events preceding McGee’s arrest
       In People v. McGee (2002) 104 Cal.App.4th 559 (McGee I), we set forth the
following summary of facts: “McGee (sometimes known as Geeter) lived in an
apartment . . . with Linda Williams and Jonathan Bowen. Williams was dating Lee
Anthony Lewis, who lived nearby with his mother. [¶] On the evening of December 3,
1998, Lewis went to the apartment to see Williams. McGee answered the door, told
Lewis to go away and closed the door. Lewis did not leave and instead tried to get
Williams’s attention by shouting at her window. McGee and two friends, Charlie Mack
and Larry Hamilton, then came out of the apartment and attacked Lewis for



                                             2
‘disrespecting’ them. During the assault, Mack hit Lewis in the mouth with a handgun.
McGee threatened Lewis not go to the police ‘or he would kill him.’
         “Williams heard the commotion and went outside to see Lewis. McGee and Mack
forced her back into the apartment. Mack pointed the gun at her and said ‘“If you or your
boyfriend go and tell the police, or call the police, we’re going to kill you.”’ McGee
repeated the threat to Williams, who ran out of the apartment in search of Lewis.
         “Williams found Lewis down the street talking to the police. After Lewis reported
the incident, the police escorted Lewis and Williams back to the apartment, where Lewis
identified Mack and Hamilton as two of the attackers. Mack and Hamilton were placed
under arrest.
         “The police then accompanied Williams and Lewis to Lewis’s house. Williams
noticed McGee’s uncle, George Adams, watching from a nearby corner. After the police
departed, Adams knocked on the door. When Lewis answered, Adams said, ‘“Lee
Anthony, man, you should have just left it alone’” and ‘“should have taken it like a
man.”’
         “Seconds after Adams left, McGee burst into the Lewis residence and began
shooting. After the shooting stopped, Williams told Lewis’s mother, ‘“Geeter shot us,
Geeter shot us.”’ When the police arrived, both Williams and Lewis told the officers
they had been shot by McGee. [¶] Lewis died of multiple gunshot wounds to the chest
and buttocks. Although she had been shot seven times, Williams survived and testified at
trial.
         “McGee was charged with one count of murder (Pen. Code, § 187), one count of
attempted premeditated murder (Pen. Code, §§ 664, 187) and one count of making
terrorist threats (Pen. Code, § 422). The information specially alleged Lewis had been
intentionally killed because he was a witness to a crime (Pen. Code, § 190.2, subd.
(a)(10)).” (McGee I, supra, 104 Cal.App.4th at pp. 563-565.)




                                             3
          2. Trial court proceedings
       During jury selection McGee’s counsel “made a series of four motions under
Wheeler and Batson, each of which was denied.” (McGee I, supra, 104 Cal.App.4th at
p. 565.) The trial court denied McGee’s first motion, finding he had failed to establish a
prima facie case that the prosecutor exercised five peremptory challenges against
African-American jurors in a “discriminatory fashion.” (Id. at p. 566.) After the
prosecutor excused a sixth African-American juror, McGee brought a second Wheeler
motion asserting that all six African-American jurors had been struck on the basis of their
race. The trial court found that McGee had only established a prima facie case of
improper discrimination “‘as to the last’” juror, and further found that the prosecutor had
provided a credible, race-neutral basis for the juror’s dismissal. (Ibid.)
       “McGee’s third motion was made after the prosecutor exercised two more
peremptory challenges against African-American jurors. At that point, the prosecutor
had exercised eight out of nine peremptory challenges against African-Americans.
McGee’s counsel argued, ‘I believe that not only established a pattern but shows that the
People are using their peremptory challenges in a discriminatory way.’ The trial court
denied the motion, finding McGee had failed to make a prima facie showing the
prosecutor had used the peremptory challenges because of race or other group bias.”
(McGee I, supra, 104 Cal.App.4th at p. 567.)
       During the selection of alternate jurors, McGee made a fourth Wheeler motion
after the prosecutor struck a ninth African-American juror. “The court once again found
no prima facie showing, but nonetheless invited comment from the prosecutor. The
prosecutor explained the last juror had been excused because she had several close
relatives in prison. The court said ‘okay’ and proceeded to complete jury selection.”
(McGee I, supra, 104 Cal.App.4th at p. 567.) At the conclusion of jury selection, the
prosecutor had exercised 11 peremptory challenges, of which nine (82 percent) excluded
African-Americans from the jury. The jury that tried the case included five (41 percent)
African-Americans.



                                              4
       “The jury ultimately selected and sworn convicted McGee of murder and
attempted murder, acquitted him of making terrorist threats and found true all the
special allegations. He was sentenced to life in prison without the possibility of parole
plus a consecutive sentence of 25 years to life on the murder count. He received a
concurrent sentence of life imprisonment plus 25 years to life for the attempted murder
conviction. . . . [¶] McGee filed a timely notice of appeal.” (McGee I, supra, 104
Cal.App.4th at p. 567.)

       B. Post-Conviction Proceedings
            1. McGee I
       In his appeal, McGee contended (among other things) that the trial court had
“erred in ruling on his four Wheeler motions by (a) failing to find a prima facie case of
race-based exclusion with respect to his first motion; (b) having found a prima face case
with respect to his second Wheeler motion, failing to inquire into the reasons for all
peremptory challenges to African-American jurors up to that point; and (c) failing to find
a prima facie case with respect to his third and fourth Wheeler motions.” (McGee I,
supra, 104 Cal.App.4th at p. 567.)
       In McGee I, we ruled that the trial court had failed to follow “required procedures”
applicable to Wheeler claims. First, we concluded that when the court found a prima
facie showing of discrimination had been made in relation to McGee’s second Wheeler
motion, it should have required the prosecutor to provide a race-neutral explanation for
each of the six peremptory challenges that had been exercised against African-American
jurors. The trial court, however, “erroneously” required only that the prosecutor provide
a race-neutral explanation for “the most recent juror who had been excused.” (McGee I,
supra, 104 Cal.App.4th at p. 567.) We further concluded that this error had impacted
McGee’s ability to establish discriminatory intent on his third and fourth Wheeler
motions.1


1     In People v. Avila (2006) 38 Cal.4th 491 (Avila), the California Supreme Court
disapproved of McGee I’s suggestion that “once the trial court has found a prima facie

                                             5
       We reversed the judgment and remanded the matter “to allow the trial court to
conduct a new hearing on the Wheeler issues.” (McGee I, supra, 104 Cal.App.4th at
p. 573.)
              2. The trial court’s re-hearing on McGee’s Wheeler motions
       On remand, the trial court concluded that the prosecution had provided credible,
race neutral reasons for each of the six African-American jurors who were the subject of
McGee’s second Wheeler motion.
       On McGee’s third and fourth motions, which addressed the dismissal of two
additional African-American prospective jurors and a third African-American prospective
alternative juror, the trial court found McGee had failed to establish a prima facie
showing of discriminatory intent, but further explained that the prosecution had provided
credible, valid reasons for the peremptory challenges.
       Based on its findings, the trial court denied each of McGee’s Wheeler motions and
reinstated the judgment. McGee filed a second appeal.

              3. McGee II
       In his second direct appeal, McGee argued that the trial court had erred in denying
each of his Wheeler motions. We first reviewed the trial court’s finding that the
prosecutor had provided credible, permissible reasons for challenging each of the
African-American jurors who were the subject of the second Wheeler motion. McGee
argued that, in conducting our evaluation of the prosecutor’s explanations for each strike,
we should compare the characteristics of the jurors who were struck with the

case of group bias in the excusal of one prospective juror, the burden shifts to the
prosecutor to provide race-neutral explanations for all challenges to prospective jurors
who are members of the same group.” (Id. at p. 549.) The Court explained: “[W]hen a
trial court determines that the defendant has made a prima facie showing that a particular
prospective juror has been challenged because of such bias, it need not ask the prosecutor
to justify his or her challenges to other prospective jurors of the same group for which the
Batson/Wheeler motion has been denied. Accordingly, we disapprove of People v.
McGee, supra, 104 Cal.App.4th 559 . . ., to the extent it is inconsistent with this holding.”
(Id. at pp. 549-550.) Neither party contends that Avila’s holding has any effect on the
specific issues presented in McGee’s habeas petition.

                                             6
characteristics of the jurors who had remained on the panel. McGee argued that this
process―commonly known as “comparative juror analysis”―was a “‘well-established
tool for exploring the possibility that facially race-neutral reasons are a pretext for
discrimination.’ [Citation.]” (People v. McGee (Nov. 15, 2004 B170336, 2004 WL
2580780 [nonpub. opn.] (McGee II ).)2 We declined to engage in such an analysis based
on then-controlling California Supreme Court precedent. (See People v. Ervin (2003) 22
Cal.4th 48, 76 (Ervin) [“a reviewing court will not engage in such a comparative analysis
regarding persons the prosecutor accepted”].) We then proceeded to evaluate the
prosecutor’s reasons for dismissing each of the six African-American jurors, concluding
that substantial evidence supported the trial court’s findings that each explanation was
both race-neutral and credible.
       On McGee’s third and fourth Wheeler motions, we concluded that the transcript
from the remand hearing demonstrated that the “the trial court erred by conducting its
inquiry in the reverse order on the third [and fourth] Wheeler motion[s]. It first heard the
prosecutor’s reasons for the peremptory challenges, then determined that there was no
prima facie case.” (McGee II, supra, 2004 WL 2580780 at * 10.) We nonetheless
concluded that, under such circumstances, it was proper to infer that the court had
“impliedly found a prima facie case on the third [and fourth] Wheeler motion[s] but, upon
hearing the prosecutor’s reasons, ultimately found the peremptory challenges to be
constitutionally valid.” (Ibid.)
       We then considered the prosecutor’s reasons for excusing the three African-
American jurors who were the subject of the third and fourth Wheeler motions and again
found that “[t]he record on voir dire and on rehearing, considered as whole, . . .
[contained] [s]ubstantial evidence support[ing] the trial court’s finding the prosecutor’s

2      Although we are generally prohibited from citing unpublished California opinions
as legal authority, we may appropriately cite our prior decision “to explain the factual
background of the case” and when relevant under the doctrine of “law of the case.”
(Pacific Gas and Electric Co. v. City & County of San Francisco (2012) 206 Cal.App.4th
897, 907, fn. 10; see also Cal. Rules of Court, rule 8.1115(b)(1); Conrad v. Ball Corp.
(1994) 24 Cal.App.4th 439, 443, fn. 2.)

                                               7
explanation for [his] challenges were genuine and the jurors were not excused on the
basis of membership in a cognizable group.” (McGee II, supra, 2004 WL 2580780 at
* 13.) On January 19, 2005, the California Supreme Court denied McGee’s petition for
review.

       C. Federal Habeas Proceedings
       On July 12, 2005, McGee filed a federal petition for writ of habeas corpus under
28 U.S.C. section 2254 arguing that that we had erred in upholding the trial court’s denial
of his Wheeler motions.

          1. District court order granting McGee’s habeas petition
       Approximately five years after McGee filed his petition, the district court
issued a published opinion concluding that our “findings that the prosecutor’s reasons
were race-neutral was an ‘unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’ [Citation.].” (McGee v. Kirkland (C.D. Cal.
2010) 726 F.Supp.2d 1073, 1087 (McGee III).)
       The district court initially considered our decision not to conduct a comparative
juror analysis, which the court described as being “consistent with [controlling] state law
at the time.” (McGee III, supra, 726 F.Supp.2d at p. 1080.) The district court concluded
the United States Supreme Court’s decision in Miller-El v. Cockrell (2003) 537 U.S. 322
(Miller-El) clarified that when evaluating a prosecutor’s reasons for exercising a
peremptory challenge, courts must consider “not only the prosecutor’s statements about
his jury selection strategy and his explanations for the peremptory strikes, but also the
characteristics of the venire members that were not challenged.” (McGee III, supra, 726
F.Supp.2d at pp. 1079-1080.) In light of Miller-El, the court found that our refusal to
consider comparative juror analysis evidence was contrary to “clearly established federal
law, which was in existence by the time of [McGee’s] last reasoned state court decision
in 2004.” (Id. at pp. 1080-1081.)
       The district court then conducted a de novo analysis of the “prosecutor’s stated
reasons for striking” two jurors: juror 4046 and juror 9974. (McGee III, supra, 726

                                             8
F.Supp.2d at pp. 1083.) The court found that, in both instances, the prosecution’s stated
reasons were “unsupported by the record and/or fail after conducting a comparative
analysis.” (Ibid.) The court noted that although the prosecutor had allegedly struck juror
4046 based on the fact that she had no jury experience despite her advanced age, “[a]t
least one other person of advanced age, a retired truck driver who had never served on a
jury before, remained on the jury.” (Ibid.) The court also concluded that several other
reasons the prosecution had offered―including the juror’s failure to “‘stand up’ when her
house was burglarized,” her reluctant demeanor, her lack of educational background and
her failure to explain her children’s unemployed status―were either unsupported by the
record, shared by other jurors who remained on the panel or were otherwise irrelevant to
the juror’s ability to serve on the panel. (Id. at pp. 1083-1085.)
       The district court also found that the prosecutor’s sole reason for striking Juror
9744―having several relatives who were incarcerated―was “implausible” because the
prosecutor had “fail[ed] to object to other panel members who gave similar responses to
the . . . family criminal history question.” (McGee III, supra, 726 F.Supp.2d at pp. 1086-
1087.) The court found that because other jurors had likewise admitted they had family
members with a criminal history, the prosecutor’s explanation “served only as a pretext
for purposeful discrimination.” (Id. at p. 1087.)
       Finally, the court noted that other evidence suggested discriminatory intent,
including the fact that “the prosecutor used nine of his eleven peremptories, or 82%,
against black venire members.” (McGee III, supra, 726 F.Supp.2d at p. 1090.)

              2. Ninth Circuit’s reversal of the district court’s ruling
       On January 28, 2013, the Ninth Circuit reversed the district court’s grant of
McGee’s habeas petition, concluding that “[t]he California Court of Appeal’s denial of
McGee’s Batson claim was not an ‘unreasonable determination of the facts in light of the
evidence’ in the record. [Citation.] Although comparative juror analysis suggests that
the state courts may have ‘had reason to question the prosecutor’s credibility,’ such
analysis ‘does not . . . compel the conclusion that the trial court had no permissible


                                              9
alternative but to reject the prosecutor’s race-neutral justifications.’ [Citation.]”
(McGee v. Kirkland (9th Cir. Jan. 28, 2013) 506 Fed.Appx. 588, 590 (McGee IV).)
       In response to the district court’s analysis of juror 4046, the Ninth Circuit
explained: “The prosecutor provided three reasons for excusing Juror 4046 from the
jury: (1) her lack of jury experience; (2) her job as a ‘substitute cafeteria helper,’ from
which the prosecutor inferred she might lack the education and ability to understand fully
a complex murder trial; and (3) that she ‘demonstrated . . . that she was timid, . . . not
detail oriented, and potentially unable to contribute to the jury deliberations.’ These
justifications are race-neutral and supported by the record. Although the prosecutor
accepted some jurors without previous jury experience, several others without such
experience were stricken. Juror 4046’s lack of jury experience was connected to the
prosecutor’s overarching concern―that she might not be able to fulfill effectively the
obligations of a juror. It was not unreasonable, therefore, for the California courts to
conclude that the prosecutor challenged Juror 4046 based on this race-neutral concern.”
(McGee IV, supra, 506 Fed.Appx. at p. 590.)
       In response to the district court’s analysis of juror 9744, the Ninth Circuit
explained: “The California courts’ conclusion that the prosecutor’s challenge of Juror
9744 was not based on race was also reasonable. The prosecutor stated that he struck
Juror 9744 because of ‘the large number of [her] relatives [who were] in prison.’ This is a
permissible, race-neutral reason, substantiated by the record. [Citations.] Although the
prosecutor accepted some jurors whose relatives had been convicted of crimes,
prosecutors often attempt to ensure that juries have few, if any, such individuals. The
record indicates that the venire contained a large number of prospective jurors who
themselves had criminal convictions or who had relatives with criminal convictions.
Juror 9744, excused during the selection of alternate jurors, was the last African-
American prospective juror stricken by the prosecutor. It was not unreasonable of the
California courts to accept as race-neutral the prosecutor’s desire not to add another juror
whose relatives had criminal convictions to a jury that already had several such jurors.”
(McGee IV, supra, 506 Fed.Appx. at pp. 590-591.)

                                              10
       The Ninth Circuit also concluded that the record contained additional evidence
supporting our rejection of McGee’s Wheeler claims, including the fact that “five of the
seated jurors were African-American[, which was] . . . ‘indicative of a nondiscriminatory
motive.’” [Citations.] In addition, the prosecutor twice accepted the jury while it
contained some of the jurors who were eventually excused, further undermining any
inference of racial discrimination. [Citation.]” (McGee IV, supra, 506 Fed.Appx. at
p. 591.) Finally, the Ninth Circuit noted that “although the precise racial composition of
the venire is not in the record, the record strongly suggests that the venire contained a
large number of African–American prospective jurors. Therefore, it is unsurprising that a
large percentage of the excused jurors were African-American, diminishing any inference
of racial motivation that may ordinarily be drawn from that circumstance.” (Ibid.)
       The Ninth Circuit remanded the matter to the district court for consideration of
additional arguments McGee had raised in his federal petition. The district court denied
the petition in an unpublished disposition on May 20, 2013.

       D. McGee’s State Court Habeas Petitions
       On July 16, 2013, McGee filed a petition in the superior court, which was denied.
He subsequently filed the current petition, arguing that, in McGee II, we improperly
“den[ied] [his] Batson/Wheeler motions without conducting a comparative juror
analysis.” McGee contends that “subsequent authority from the California Supreme
Court [now] makes clear that in determining whether a prosecutor has struck prospective
jurors for discriminatory reasons, a reviewing court must conduct a comparative juror
analysis.” He further contends that “[d]oing so in this case exposes the prosecutor’s
stated reasons for his strikes against African-Americans as mere pretexts for purposeful
discrimination.”




                                             11
                                      DISCUSSION
       A. Summary of Applicable Law

          1. Analytical framework governing Wheeler/Batson claims
       “A defendant’s Batson challenge to a peremptory strike requires a three-step
inquiry. First, the trial court must determine whether the defendant has made a prima
facie showing that the prosecutor exercised a peremptory challenge on the basis of race.
[Citation.] Second, if the showing is made, the burden shifts to the prosecutor to present
a race-neutral explanation for striking the juror in question. [Citation.] Although the
prosecutor must present a comprehensible reason, ‘[t]he second step of this process does
not demand an explanation that is persuasive, or even plausible’; so long as the reason is
not inherently discriminatory, it suffices. [Citation.] Third, the court must then
determine whether the defendant has carried his burden of proving purposeful
discrimination. [Citation.] This final step involves evaluating ‘the persuasiveness of the
justification’ proffered by the prosecutor, but ‘the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the opponent of the strike.’
[Citation.]” (Rice v. Collins (2006) 546 U.S. 333, 338.) This three-step procedure “also
applies to state constitutional claims” under Wheeler, supra, 22 Cal.3d 258. (Lenix,
supra, 44 Cal.4th at p. 613.)3
       “A prosecutor asked to explain his conduct must provide a ‘“clear and reasonably
specific” explanation of his “legitimate reasons” for exercising the challenges.’
[Citation.] ‘The justification need not support a challenge for cause, and even a “trivial”
reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be
excused based upon facial expressions, gestures, hunches, and even for arbitrary or
idiosyncratic reasons. [Citations.].” (Lenix, supra, 44 Cal.4th at p. 613.)
       “At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to
whether the trial court finds the prosecutor’s race-neutral explanations to be credible.


3      In his petition, McGee argues only that the trial court erred in performing the third
stage of the Wheeler/Batson analysis.

                                             12
Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how
reasonable, or how improbable, the explanations are; and by whether the proffered
rationale has some basis in accepted trial strategy.’ [Citation.] In assessing credibility,
the court draws upon its contemporaneous observations of the voir dire. It may also rely
on the court’s own experiences as a lawyer and bench officer in the community, and even
the common practices of the advocate and the office that employs him or her.
[Citation.]” (Lenix, supra, 44 Cal.4th at p. 613 [footnote omitted].)
       “Review of a trial court’s denial of a Wheeler/Batson motion is deferential,
examining only whether substantial evidence supports its conclusions. [Citation.] ‘We
review a trial court’s determination regarding the sufficiency of a prosecutor’s
justifications for exercising peremptory challenges “‘with great restraint.’” [Citation.]
We presume that a prosecutor uses peremptory challenges in a constitutional manner and
give great deference to the trial court’s ability to distinguish bona fide reasons from sham
excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to
evaluate the nondiscriminatory justifications offered, its conclusions are entitled to
deference on appeal. [Citation.]’ [Citation.]” (Lenix, supra, 44 Cal.4th at pp. 613-614
[footnote omitted].)

               2. Summary of “comparative juror analysis”
       “[C]omparative juror analysis is a form of circumstantial evidence” (Lenix,
supra, 44 Cal.4th at p. 621) whereby the court conducts a “‘side-by-side comparison”
(Miller-El, supra, 545 U.S. at p. 241) of dismissed minority panelists with non-minority
panelists who were allowed to serve. “If a prosecutor’s proffered reason for striking a
[minority] panelist applies just as well to an otherwise-similar non-[minority panelist]
who is permitted to serve, that is evidence tending to prove purposeful discrimination.”
(Ibid.; Lenix, supra, 44 Cal.4th at p. 621.)
       As explained in McGee II, at the time we decided McGee’s direct appeals, our
Supreme Court had repeatedly held that “[t]he rule . . . in [California] . . . [is] . . . that in
evaluating the sufficiency of the prosecutor’s explanations [for exercising a peremptory


                                                13
challenge], a reviewing court will not engage in such a comparative analysis regarding
persons the prosecutor accepted. [Citations.]” (Ervin, supra, 22 Cal.4th at p. 76.)
Several years after we affirmed McGee’s judgment of conviction the Court issued
Lenix, supra, 44 Cal.4th 602, which held that two United States Supreme Court
decisions ―Miller-El, supra, 545 U.S. 231, and Snyder v. Louisiana (2008) 552 U.S.
472―made clear that “[c]omparative juror analysis is evidence that . . . . must be
considered when reviewing claims of error at Wheeler/ Batson’s third stage when the
defendant relies on such evidence and the record is adequate to permit the comparisons.
In those circumstances, comparative juror analysis must be performed on appeal even
when such an analysis was not conducted below.” (Lenix, supra, 44 Cal.4th at p. 607.)
       Lenix emphasized, however, that “comparative juror analysis is but one form of
circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of
intentional discrimination.” (Lenix, supra, 44 Cal.4th at p. 622.) The Court directed
reviewing courts to remain “mindful that comparative juror analysis on a cold appellate
record has inherent limitations. [Citation.]. . . . There is more to human communication
than mere linguistic content. On appellate review, a voir dire answer sits on a page of
transcript. In the trial court, however, advocates and trial judges watch and listen as the
answer is delivered. . . . “[T]he manner of the juror while testifying is oftentimes more
indicative of the real character of his opinion than his words. That is seen below, but
cannot always be spread upon the record.’ [Citation.].” (Ibid.)
       Lenix further clarified that while appellate courts must consider comparative juror
analysis when such evidence is relied on by the defendant, we still “accord significant
deference to the [trial court’s] factual findings on the question of discriminatory intent”
(Lenix, supra, 44 Cal.4th at p. 626) and “‘examin[e] only whether substantial evidence
supports its conclusions.’ [Citation].” (People v. Montes (2014) 58 Cal.4th 809, 847
(Montes).)




                                             14
       B. McGee Is Not Procedurally Barred from Pursuing Habeas Relief Predicated
          on Comparative Juror Analysis

       The People initially contend there are two reasons McGee is procedurally barred
from pursuing a habeas claim predicated on comparative jury analysis. First, the People
assert his claim is untimely because it was filed more than five years after Lenix was
decided. Second, the People argue that even if McGee’s claim is timely, the rule set forth
in Lenix does not apply retroactively to cases that became final before it was decided.4

           1.   McGee established good cause for the delay in filing his petition
       “[C]laims raised in a habeas corpus petition must be timely filed.” (In re Robbins
(1998) 18 Cal.4th 770, 778.) “Our rules establish a three-level analysis for assessing
whether claims in a petition for a writ of habeas corpus have been timely filed. First, a
claim must be presented without substantial delay. Second, if a petitioner raises a claim
after a substantial delay, we will nevertheless consider it on its merits if the petitioner can
demonstrate good cause for the delay. Third, we will consider the merits of a claim
presented after a substantial delay without good cause if it falls under [certain] narrow
exceptions.” (Reno, supra, 55 Cal.4th at p. 460.)
       McGee does not dispute he failed to present his claim without substantial delay,
acknowledging that Lenix was decided approximately five years before he filed his
petition. (See Reno, supra, 55 Cal.4th at p. 461 [“Substantial delay is measured from the
time the petitioner or his or her counsel knew, or reasonably should have known, of the

4
        Ordinarily “[l]egal claims that have previously been raised and rejected on direct
appeal . . . cannot be reraised in a collateral attack by filing a petition for a writ of habeas
corpus.” (In re Reno (2012) 55 Cal.4th 428, 476 (Reno).) However, a “petitioner can
renew a legal issue, despite having raised the issue unsuccessfully on appeal, in [certain]
circumstances[, including] . . . . ‘when there has been a change in the law affecting the
petitioner’ [Citation.].” (Id. at p. 478.) Although the parties do not directly address the
issue, it is apparent that McGee’s petition falls within this exception. McGee raised the
Batson/Wheeler issues in his direct appeals and specifically implored this court to
consider evidence of comparative juror analysis. Although the then-controlling law in
this state prohibited us from conducting a comparative juror analysis, Lenix has since
clarified that we must conduct a comparative analysis when the defendant has relied on
such evidence.

                                               15
information offered in support of the claim and the legal basis for the claim”].) McGee
contends, however, that his federal habeas petition, which was filed several years before
Lenix was decided and not resolved by the federal courts until 2013, constitutes good
cause for the delay.
       We agree that the unique procedural history of this case constitutes good cause for
McGee’s five year delay in seeking state habeas relief. The record shows that promptly
after his criminal conviction became final in 2005, McGee pursued a federal habeas
petition asserting that the California courts’ refusal to consider evidence of comparative
juror analysis constituted an unreasonable application of federal law. The district court,
however, did not decide McGee’s petition until 2010. The federal appellate process
lasted several more years, ultimately resulting in an order denying his petition that was
issued in May of 2013. McGee then promptly pursued a state habeas petition, which he
filed less than two months after the denial of his federal petition.
       The People argue that, despite his then-pending federal habeas petition, McGee
should have filed his state habeas petition immediately after Lenix was decided in 2008.
We disagree. McGee should not be punished for what was, in effect, an attempt to avoid
a multiplicity of identical habeas petitions; had his federal petition been successful (as it
was in the district court), he would not have needed to pursue a state habeas petition. The
United States and California Supreme Courts have both emphasized that “collateral
challenges to final criminal judgments exact a heavy cost on the judiciary.” (Reno,
supra, 55 Cal.4th at p. 452; McCleskey v. Zant (1991) 499 U.S. 467, 491 [“Federal
collateral litigation places a heavy burden on scarce federal judicial resources, and
threatens the capacity of the system to resolve primary disputes”].) Forcing petitioners to
simultaneously pursue identical habeas claims in state and federal court under the
circumstances presented here would only serve to exacerbate these burdens. We
therefore conclude McGee has demonstrated good cause for his delay.




                                              16
              2. Lenix is applicable to McGee’s case
       The People next contend that the “rule announced in Lenix . . . should not apply
retroactively” to McGee, whose judgment became final several years before the case was
decided. “In determining whether a decision should be given retroactive effect, the
California courts undertake first a threshold inquiry, inquiring whether the decision
established new standards or a new rule of law. If it does not establish a new rule or
standards, but only elucidates and enforces prior law, no question of retroactivity arises.”
(Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36.) Thus, if Lenix merely
“elucidates prior law, but does not establish a new rule or standard, its principles are
applicable to petitioner’s case even though the judgment became final . . . before [Lenix
was decided.]” (In re Bower (1985) 38 Cal.3d 865, 877, fn. 6.)
       In Lenix, our Supreme Court explicitly found that the United States Supreme
Court decision in Miller-El did not “change[] the Batson standard.” (Lenix, supra, 44
Cal.4th at p. 621.) The decision merely clarified that, contrary to the California Supreme
Court’s prior holdings, comparative juror analysis is a form of relevant evidence that
reviewing courts must consider when applying the third step of the Batson analysis.
(Id. at p. 622; see also Boyd v. Newland (9th Cir. 2006) 467 F.3d 1139, 1146 [concluding
that Miller-El applies retroactively because it did not “create a new rule of criminal
procedure. Instead, it simply illustrates the means by which a petitioner can establish,
and should be allowed to establish, a Batson error”].) Given Lenix’s explicit
acknowledgment that its ruling merely served to clarify the procedures governing Batson
claims, we conclude that its principles apply to McGee.

       C. Comparative Juror Analysis Evidence Does Not Demonstrate that the
          Prosecutor Acted with Discriminatory Intent

       The narrow issue presented in this habeas proceeding is whether the comparative
juror analysis set forth in McGee’s petition, considered in conjunction with other relevant




                                             17
evidence in the record, demonstrates that the prosecutor’s explanations for exercising
peremptory challenges against several African-American jurors were pretextual.5
       Before assessing McGee’s comparative juror analysis of each excused African-
American juror, we note several factors that generally support the trial court’s factual
finding of no discriminatory intent. First, as discussed in McGee II, this court has already
concluded that: (1) the prosecutor provided permissible, race-neutral reasons for
challenging each of the nine African-American prospective jurors; and (2) in the absence
of the comparative juror analysis evidence discussed below, substantial evidence
supported the trial court’s finding that the prosecutor’s explanation for his challenges
were genuine.
       Second, as we noted in McGee II, while the prosecution’s peremptory challenge to
nine African-American prospective jurors is significant, five African-Americans sat on
the jury that convicted McGee. “The presence of these jurors on the panel is one
indication of the prosecutor’s good faith in exercising his peremptory challenges to
exclude the African-American prospective jurors in question.”6 (Montes, supra,



5       McGee’s habeas petition includes several arguments regarding his Wheeler
motions that are unrelated to the issue of comparative juror analysis. He asserts (among
other things) that several of the prosecutor’s reasons for exercising his peremptory
challenges were “unsupported by the record” and irrelevant to the prospective juror’s
ability to serve on the panel. McGee has not explained why these arguments could not
have been raised on direct appeal. We therefore decline to address the claims. (See In re
Dixon (1953) 41 Cal.2d 756, 759 [“The general rule is that habeas corpus cannot serve as
a substitute for an appeal, and, in the absence of special circumstances constituting an
excuse for failure to employ that remedy, the writ will not lie where the claimed errors
could have been, but were not, raised upon a timely appeal from a judgment of
conviction”].)

6      The record suggests that at the time the jury was sworn, the prosecutor retained a
sufficient peremptory challenges to excuse each of the five African-American jurors who
remained on the jury panel. Because McGee was charged with murder and attempted
premeditated murder, both punishable by a life term (Pen. Code, §§ 190 & 664 subd. (a)),
the prosecutor had 20 peremptory challenges. (See Code Civ. Proc., § 231, subd. (a) [“if
the offense charged is punishable with . . . imprisonment in the state prison for life, the

                                             18
58 Cal.4th at p. 848 [presence of “three African-Americans . . . seated on the jury”
supported trial court’s finding of non-discriminatory intent]; People v. Stanley
(2006) 39 Cal.4th 913, 938, fn. 7 [“‘While the fact that the jury included members of a
group allegedly discriminated against is not conclusive, it is an indication of good faith in
exercising peremptories, and an appropriate factor for the trial judge to consider in ruling
on a Wheeler objection’”].)
       Third, McGee does not dispute that the prosecutor had twice accepted the jury
while it included several of the same African-American jurors who were later excused,
further undermining any inference of racial discrimination. (See People v. Williams
(2013) 56 Cal.4th 630, 659 [although “not conclusive,” the prosecutor’s decision to
“pass[]” on African-American juror who was later challenged qualified as circumstantial
evidence of nondiscriminatory intent]).
       We now consider whether, despite such evidence, a comparative juror analysis
demonstrates the trial court erred in accepting the prosecution’s proffered, race-neutral
reasons for utilizing peremptory challenges against each of the individual African-
American jurors.

          1. Juror 4046
              a. Summary of trial court proceedings
       Juror 4046 was a “substitute cafeteria helper” with four daughters, only one of
whom was employed. In her voir dire responses, juror 4046 stated that she had “never
done jury duty before” and that her home was burglarized “four or five times.” Although
she reported each incident to law enforcement, no arrests were ever made.
       At the Wheeler hearing, the prosecutor identified “numerous reasons” he did not
believe juror 4046 would make “a good juror,” including: (1) despite her advanced age,
she had no prior jury experience; (2) her current employment as a cafeteria helper
suggested she had limited education, making her ill suited for a complex murder trial; (3)


defendant is entitled to 20 and the people to 20 peremptory challenges”].) When the jury
was sworn, the prosecutor had used only 9 of these 20 peremptory challenges.

                                             19
her voir dire responses suggested she was “timid, not detail oriented and potentially
unable to contribute to the jury deliberations.”
       In a memorandum opposing McGee’s Wheeler claims, the prosecution expounded
on the third factor, asserting: “[The juror] indicated that her home was robbed ‘at least
four or five times.’ [] Often times, jurors recount with great detail the horror of having
their home burglarized . . . For [this juror] to have lost track of the number of times her
home was invaded, and then coupled with relatively large number of times her home was
burglarized, suggested to the prosecutor that [she] was not focused on reducing such
activity in her neighborhood or her life. . . .” The prosecutor further explained that the
juror had stated three of her four daughters were unemployed, but “did not attempt to
explain the unemployment. . . . [H]er failure to clarify the status of [their unemployment]
reflected negatively upon this potential juror.” Finally, the prosecutor noted juror 4046
was the first juror that he had challenged.
       The trial court accepted the prosecution’s explanation that the juror had been
stricken based on her apparent limited educational background: “Her being a cafeteria
helper, I think the people can infer from that possibly she didn’t have a lot of education
and would not be able to evaluate all the issues the way that they would like to see her
evaluate them. It appears to me that the strike was based on non-race grounds.”

              b. McGee’s comparative juror analysis of juror 4046 does not
                 demonstrate discriminatory intent

       McGee argues a comparative juror analysis demonstrates that each of the
prosecutor’s purported reasons for striking juror 4046 were pretext for discrimination.
First, McGee contends that while the prosecutor asserted it was “unusual Juror 4046 did
not elaborate about the burglaries of her home, . . . [the record shows] that two-thirds [of
prospective jurors who reported having been the victim of burglaries] did not elaborate
[on the specific circumstances of their crimes].” The prosecutor’s statements about juror
4046 make clear, however, that he was not merely concerned about her failure to provide
specific details regarding each burglary. Rather, the prosecutor was concerned the juror


                                              20
could not even recall the specific number of times she had been burglarized which, when
combined with her inability to recall the specific details of each event, suggested she was
not detail oriented and timid. McGee has identified no other juror who shared such
attributes. (See People v. DeHoyos (2013) 57 Cal.4th 79, 107 (DeHoyos) [rejecting
comparative juror analysis where “[n]one of the jurors [identified] . . . . by defendant
expressed a substantially similar combination of [characteristics as the stricken
prospective juror]”].)
       McGee next asserts that although the prosecutor alleged he had concerns that three
of juror 4046’s daughters were unemployed, “[t]he prosecutor had absolutely no
unemployment-related worries about Juror 3997, who ‘chooses to be unemployed,’ nor
about the adult, college educated son of Juror 4645, who was also unemployed by choice.
[] The prosecutor’s apprehension about unemployment . . . should have sparked concerns
about these jurors, but the record reflects none.” This argument misstates the
prosecutor’s explanation regarding juror 4046’s unemployed daughters. The prosecutor
did not state that he challenged juror 4046 because she had three unemployed daughters;
he stated that the juror’s failure to explain why her daughters were unemployed provided
further evidence that she was not detail oriented. The two accepted jurors McGee
identifies did provide such information during voir dire: juror 3997 explained that her
unemployed son was backpacking through Europe; juror 4645 explained that he had
served as an executive at a private management company for nine years, but recently left
the job and chose to remain unemployed.
       Moreover, to the extent McGee’s “comparative juror analysis” may cast doubt on
some of the prosecutor’s reasons for excusing juror 4046, McGee has ignored other
reasons that were provided in support of the peremptory challenge. First, as explained by
the trial court, the prosecutor stated that juror 4046’s position as a cafeteria helper
suggested her education level might hinder her ability to serve as a juror in a complex
criminal matter. Our Supreme Court has previously held that perceived lack of education
is a permissible, race-neutral ground for exercising a peremptory challenge. (See People
v. Reynoso (2003) 31 Cal.4th 903, 924 (Reynoso) [prosecutor’s subjective opinion that a

                                              21
customer service representative lacks educational experience to effectively serve as a
juror may properly form the basis of a peremptory challenge].) The Court has also made
clear that “[w]hether a prosecutor’s generalizations about a given occupation have any
basis in reality or not, a prosecutor ‘surely . . . can challenge a potential juror whose
occupation, in the prosecutor’s subjective estimation, would not render him or her the
best type of juror to sit on the case for which the jury is being selected.’ [Citation.]”
(People v. Chism (2014) 58 Cal.4th 1266, 1317 (Chism).)
       McGee’s comparative analysis also ignores the prosecutor’s stated concern that,
despite her advanced age, juror 4046 lacked any jury experience. Again, our Supreme
Court has explicitly found that lack of “prior jury experience . . . [is a] legitimate,
nondiscriminatory ground[] for exercising a peremptory challenge.” (People v.
Manibusan (2013) 58 Cal.4th 40, 82.)7

           2. Juror 3744
              a. Summary of trial court proceedings
       Juror number 3744 was an unmarried “mail processor” employed at the UCLA
Medical Center. The juror had one son who was in prison and no prior jury experience.
During voir dire, juror 3744 explained that her son had been convicted of “robbery, rape
and drugs [sic]” and was currently serving a life sentence. When asked whether she

7
        McGee does reference juror 4046’s purported lack of education and jury
experience in arguments set forth in two footnotes, neither of which contains citation to
any legal authority. We need not address issues discussed only in a footnote. (Cal. Rules
of Court, rule 8.204(a)(1)(B); People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; see
Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.) Moreover, the footnotes simply assert
that other jurors who the prosecutor passed on either lacked jury experience or held “non-
technical occupations . . . from which it might be . . . assumed they did not have an
extensive education training.” These conclusory statements fail to show that any of these
other prospective jurors shared the combination of factors that juror 4046 exhibited,
which included lack of education, lack of jury experience and voir dire answers
suggesting lack of attention to detail. (See DeHoyos, supra, 57 Cal.4th at p. 107
[rejecting comparative juror analysis where “[n]one of the jurors [identified] . . . . by
defendant expressed a substantially similar combination of [characteristics as the stricken
prospective juror]”].)

                                              22
believed her son had been treated “fairly or unfairly,” she responded “I think he was
treated unfairly,” explaining that he did not get “the right representation.” The juror was
asked whether she believed she could “put[] aside whatever happened to your son and
be[] a fair juror to both sides in this case.” After hesitating and asking questions about
the specific nature of McGee’s alleged crimes, the juror stated that she “th[ought]” she
“could be fair.”
       The prosecutor explained he struck juror number 3744 for two reasons. “First,
[the juror] was a mail processor for UCLA, a job that would seem similar to working for
the post office. The tedious nature of working with millions of pieces of mail causes the
prosecutor to believe that a juror with this occupation would not be used to listening and
focusing on the numerous details associated with sitting on a jury. Furthermore, analysis
of those details may be difficult for a person employed in this capacity. . . . Second, [the
juror] indicated that her son was in prison for robbery, rape, and drugs. She stated that he
was treated unfairly. The prosecutor believed that a juror with this personal history
would cloud this case with her son’s case and thus not be a fair juror to [the] People.”
       The trial court accepted the prosecutor’s second reason for striking the juror,
explaining: “This is a situation where the people are prosecuting an individual accused of
a crime. Here’s a juror who has a son who is in prison for robbery and rape and drugs
and feels that he was treated unfairly. I think any prosecutor would be concerned
regardless of what the race of that particular juror was. It certainly is a legitimate
concern and a legitimate reason for challenging that juror and it is not related to race.”

              b. McGee’s comparative juror analysis of juror 3744 does not
                 demonstrate discriminatory intent

       McGee argues that a comparative juror analysis demonstrates the prosecutor’s
assertion that he struck juror 3744 because of his position as a “mail processor” was
pretext for discrimination. In support, McGee relies on a statement the prosecutor made
at the Wheeler hearing in which he explained that he had experienced problems with
juries that included persons “employed by the United States Postal Service or . . . by L.A.


                                              23
Unified School District. . . . Basically, I’ve had problems with teachers and mail carriers.
That is as unscientific as that may seem, it is the nature of the occupation. Sometimes
renders it difficult for them to render a decision in cases such as this [sic].” McGee
argues that while the prosecutor elected to strike juror 3744 based on his status as a mail
processor, he elected to leave several “teachers” on the jury. McGee contends this
demonstrates pretext because “the prosecutor did not explain . . . why he accepted
numerous teachers as jurors . . . despite equating them with mail carriers in their
difficulty rendering decisions.”
       There are two problems with this analysis. First, McGee concedes the prosecutor
did not accept any juror who was employed as a mail carrier or processor. While it is
true the prosecutor made passing references to teachers during the Wheeler hearing, he
made clear that his concerns with juror 3744’s occupation arose from the “tedious” nature
of mail delivery. (See People v. Trinh (2014) 59 Cal.4th 216, 242 (Trinh) [permitted
exercise of a peremptory challenge based on a prospective juror’s “occupation as a postal
worker”].) Although the prosecutor might have harbored other concerns about teachers,
the fact the prosecutor left several teachers on the jury is not evidence that his reasons for
striking juror 3744 was pretextual. (DeHoyos, supra, 57 Cal.4th at p. 107 [“In order for a
comparison to be probative, jurors need not be identical in all respects [citation], but they
must be materially similar in the respects significant to the prosecutor’s stated basis for
the challenge”].)
       Second, McGee’s argument ignores the second proffered reason for the
prosecutor’s peremptory challenge: juror 3788’s statement that her son had been treated
unfairly by the system. The trial court found that this race-neutral explanation was
credible. (See People v. Cornwell (2005) 37 Cal.4th 50, 70 [“any prosecutor” would be
expected to utilize peremptory challenge against prospective juror with “personal
experience with an allegedly unfair homicide prosecution of a close relative”]
[disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22];
People v. Jones (2013) 57 Cal.4th 899, 920 [“‘a prosecutor may reasonably surmise that a



                                             24
close relative’s adversary contact with the criminal justice system might make a
prospective juror unsympathetic to the prosecution.’ [Citation.]”].)

           3. Juror 3378
              a. Summary of trial court proceedings
       Juror 3378 had no prior jury experience, was divorced and had two young
children. At voir dire, the juror explained that she had been raped at gunpoint six years
earlier. She also stated that she never reported the crime because her perpetrators had
threatened to kill her. Juror 3378 also informed the court that one of her cousins was
incarcerated for robbery and that she believed he should have gotten a longer sentence.
She further reported that a second cousin had been murdered four years earlier and that
the suspects charged with the killing should have received harsher punishments.
       In the People’s written opposition to McGee’s Wheeler motion, the prosecutor
explained he struck juror 3378 because “the charges in the present case involved witness
intimidation and violence thus making it impossible, in the prosecutor’s analysis, for [the
juror] to separate her experiences with the facts in this case. This case appeared too
similar to a terrible episode in her life and the prosecutor felt [the juror] was not suited to
sit as a juror on this type of case. [¶] Additionally [the juror] had strong opinions about
how her cousin who committed robbery and those that were charged in her cousin’s death
should have been treated. It appeared possible that the issue of punishment would have
weighed heavily on this juror’s mind, thus making the prosecutor feel unsure that this
juror would deliberate appropriately. . . . Because [the juror] had never served jury duty
before, she may have had trouble separating this case from the crimes in her life and in
the lives around her.”
       The court ruled the prosecutor had provided a genuine, race-neutral basis for
challenging the juror: “We have here a juror who has family members involved in crime,
serious crimes for that matter. She herself was the victim of a crime and was personally
intimidated . . . by the perpetrators. [Although] . . . one might think [those incidents
would make her] a good juror for the prosecution[,] . . . the People had to weigh what


                                              25
effect would it have that you have family members involved in crime? . . . If you are part
of a family that is involved in crime, you may look at everything totally different from
someone who’s in a family that’s not involved in crime. I think different lawyers would
evaluate it differently, but it seems to me the fact that she does have these individual
family members involved in serious crimes that’s certainly a legitimate reason to strike
her from the panel.”

            b. McGee’s comparative juror analysis of juror 3378 does not demonstrate
               discriminatory intent

         McGee argues that a comparative juror analysis demonstrates the trial court erred
in accepting the prosecutor’s assertion that he struck juror 3378 because “she had
relatives and friends who had been victims or perpetrators of crime.” According to
McGee, the voir dire record demonstrates that: (1) “[m]ost of the prospective jurors had
close relatives who were crime victims or they had been victims themselves”; and (2) the
prosecutor accepted numerous jurors who had “family members with criminal
backgrounds.” McGee also asserts that the prosecutor’s concerns about juror 3378’s
“strong opinions” regarding the sentencing of her cousin and the individuals who
murdered her other cousin were not credible because the prosecutor subsequently
preserved juror number 9694, who had exhibited a “strong opinions” about the criminal
process. Moreover, juror 9694 also had family and friends who were incarcerated for
violent crimes and also believed a close friend had been treated unfairly during a murder
trial.
         McGee’s comparative evidence ignores the primary reason the prosecutor
provided in support of the peremptory challenge to juror 3378: the juror had been the
victim of a crime that was similar to the acts McGee had allegedly committed in this
case; specifically, she was subjected to a violent crime at gunpoint and then told she
would be killed if she reported the incident. The prosecutor explained that this similar
experience, combined with the juror’s lack of prior jury service, might make it difficult
for her to deliberate appropriately. We conclude that the juror 3378’s lack of jury


                                             26
experience, combined with having been the victim of a substantially similar crime,
differentiates her from jurors who had family members who were victims or perpetrators
of criminal activity or who had expressed strong opinions about the legal system.

       4. Juror 6072
           a. Trial court proceedings
       Juror 6072 was unmarried, had no jury experience and had recently obtained a
bachelor’s degree in political science. During voir dire, the juror informed the court he
had been arrested for petty theft approximately one-and-half to two years ago and
believed he was still on “summary probation.” He had also been arrested for “possession
of stolen goods” four year earlier, which resulted in “community service” and a year of
“summary probation.”
       The prosecution informed the court he had struck juror 6072 because the juror
“had no prior jury service and had been convicted of two crimes of moral turpitude, petty
theft and receiving stolen goods. [These] convictions caused the prosecutor to believe
[the juror] would sympathize with the defendant in this case.”
       The trial court found this explanation credible, noting that the People had the right
“to strike an individual with that kind of background. Juror’s still on summary probation.
It is that recent.”

           b. McGee’s comparative juror analysis of juror 6072 does not demonstrate
              discriminatory intent

       McGee argues that the prosecution’s purported reason for striking juror
6072―two prior convictions for crimes of moral turpitude and his current probationary
status―were pretext for discrimination because the prosecution did not strike jurors 3997
and 8755, who had both been convicted of driving while under the influence of alcohol.
       The two jurors McGee has identified are not substantially similar to juror 6072
because they had each suffered only a single conviction, their crimes were committed
many years before the voir dire proceeding and neither was currently on probation. Juror
3997 was convicted approximately nine years before the trial court proceeding; juror

                                             27
8755 was convicted 18 years before the proceeding. In contrast, juror 6072 had
committed multiple crimes of moral turpitude in the past four years and was still on
probation for the second offense.

       5. Juror 9833
           a. Trial court proceedings
       Juror 9833 was unmarried, had no prior jury experience and worked for the “U.S.
Postal Service.” The juror had her home burglarized once and had never witnessed a
crime. The prosecutor did not ask her any questions at voir dire.
       The prosecutor provided two reasons for striking juror 9833. First, as with
dismissed juror 3744 (discussed above), the prosecutor explained that in his experiences
the occupation of a “postal worker” made it “difficult . . . to render a decision in a case
such as this.” Second, the prosecutor noted that the juror had answered “yes” to very few
of the questions posed to her during voir dire and exhibited a “reluctan[t]” demeanor that
suggested she was “holding back.”
       The court found these explanations credible, explaining: “Again, we revisit the
issue of a postal worker. I think I stated . . . that it is a well-known theory on the part of
some prosecutors, and my experience it [sic] doesn’t really seem to matter what race the
postal worker comes from, whether it’s a valid theory or not, they seem to believe that
and I don’t think that postal workers are necessarily a cognizable class. And I . . . do
remember she appeared to be a little reticent. And it is just her demeanor. It is not
anything she said or didn’t say. It was just her demeanor. . . . I . . . find . . . it was not
race based and he had legitimate reasons for challenging her.”

           b. McGee’s comparative juror analysis of juror 9833 does not demonstrate
              discriminatory intent

       McGee argues that a comparative analysis demonstrates the prosecution’s
assertion he struck juror 9833 as a result of her status as a postal worker was not credible.
As with juror 3744, McGee again relies on the prosecutor’s statement at the Wheeler
hearing that he had experienced problems with both postal workers and teachers, but

                                                28
nonetheless left several teachers on the jury. McGee also contends that a comparative
analysis shows that numerous other prospective jurors who were left on the jury
answered “yes” to few if any of the trial court’s questions at voir dire.
       We reject McGee’s first argument for the reasons stated in relation to juror 3744.
The mere fact that the prosecutor made negative comments about both teachers and
postal workers does not mean that juror 9833 was similarly situated to prospective jurors
who were teachers. The prosecutor provided an explanation why he believed postal
workers, in particular, were ill suited to serve as jurors: the tedious nature of their work.
Regardless of whether those subjective beliefs had “any basis in reality,” they
nonetheless provided a permissible basis for exercising a peremptory challenge. (See
Trinh, supra, 59 Cal.4th at p. 242 [permitting exercise of a peremptory challenge based
on a prospective juror’s “occupation as a postal worker”]; Chism, supra, 58 Cal.4th at
p. 1317 [permitting prosecutor challenge based on subjective beliefs about occupation].)
       McGee’s second argument fails because he has not demonstrated that any of the
other jurors who answered “yes” to few of the court’s voir dire questions also exhibited a
“reluctant” demeanor suggesting that they might be holding something back. “It is well
settled that ‘[p]eremptory challenges based on counsel’s personal observations are not
improper’ [Citation.].” (Reynoso, supra, 31 Cal.4th at p. 917.) Indeed, “‘race-neutral
reasons for peremptory challenges often invoke a juror’s demeanor. . . . In this situation,
the trial court must evaluate . . . whether the juror’s demeanor can credibly be said to
have exhibited the basis for the strike attributed to the juror by the prosecutor. . . .
[T]hese determinations of credibility and demeanor lie “‘peculiarly within a trial judge’s
province.”’ [citations], and . . . “in the absence of exceptional circumstances, we . . . defer
to [the trial court on such issues].’ [Citation.]’ [Citation.]” (Lenix, supra, 44 Cal.4th at
p. 614.) Because McGee has identified no “exceptional circumstance” that would
warrant a rejection of the trial court’s own observations regarding juror 6072’s demeanor,
McGee’s comparative analysis claim fails.




                                               29
       6. Juror 4191
           a. Trial court proceedings
       Juror 4191 was a retired teacher with prior jury service. During voir dire, the juror
informed the court that he had an “unfair” experience with the police about which he had
written a letter of complaint. The juror explained that although he did not have problems
with all “police officers,” he believed that there “are some who stretch the truth to make
their case.” When asked whether he would have “a problem” following the court’s
instructions, the juror stated “maybe,” explaining that “I know the law is not always
correct” and that “laws are made for man.”
       In response to further questioning, juror number 4191 stated that he believed he
had been “arrested for being Black in public.” He also indicated that his negative
feelings about police officers would be triggered if an offense involved “alcohol, drugs,
anything like that would involve any incidents where you get detained and stopped and
put in jail for having a dirty license plate, for having a broken tail light, something else.”
Juror number 4191 clarified, however, that he had a positive impression of most police
officers, he had a brother-in-law and friends who worked in law enforcement and that he
believed he could follow the court’s instructions.
       The prosecutor explained that he had challenged juror 4191 based on his “feelings
about police officers” and his “inconsistent statements about his beliefs on the law and
whether or not he was even going to follow the law.” According to the prosecution, the
juror “seemed to have his own agenda, to have some very strong opinions coming into
this process.”
       The court found the prosecutor’s reasons credible, explaining: “Juror number
4191 . . . says he has a problem with cops. Some stretch the truth to make their case. . . .
That he had been arrested for being black in public. Certainly I think this juror has some
strong―I think the people can infer that this juror has some strong biases based on his
answers to voir dire.”




                                              30
           b. McGee’s comparative juror analysis of juror 4191 does not demonstrate
              discriminatory intent

       McGee contends that the prosecutor’s reasons for striking juror 4191 were not
credible because the prosecutor had failed to challenge juror 9694, who had likewise
expressed “strong opinions . . . related to the criminal justice system. . . . [¶] Since Juror
9694 came with strong opinions, one would have expected the prosecutor to have
challenged her given his explanations for striking Juror[] . . . 4191”
       A comparative analysis, however, demonstrates there is no similarity between the
“strong opinions” expressed by jurors 4191 and 9694. At the Wheeler hearing, the
prosecutor explained that juror 9694 had provided “strong opinions” regarding her
experiences as a witness during a criminal trial. The juror explained at voir dire that she
had previously testified for the prosecution in a case involving a home invasion. Juror
9694 described her treatment at the trial as “unfair,” explaining that the attorneys had
made her “seem like she was the criminal.” At the Wheeler hearing, the prosecutor
informed the court he believed these “strong” comments suggested juror 9694 would
react negatively if defense counsel attempted to use aggressive tactics against any
testifying witnesses. The prosecutor further noted that juror 9694 had been seated “very
late in the process” and that he decided to keep her on the jury because he was “not sure
what else [he] was going to get.”
       We see no relation between juror 9694’s “strong attitudes” about her personal
experiences as a trial witness, and juror 4191’s “strong” statements regarding police
officers and his willingness to follow the law. (DeHoyos, supra, 57 Cal.4th at p. 107.)

       7. Juror 4303
           a. Trial court proceedings
       Juror 4303 performed clerical duties for the Hubert Humphrey Medical Center.
During voir dire, he informed the court he had been the victim of robbery, burglary, theft
and a “hit and run.” The juror stated that he had only reported some of these crimes,
noting there was “no particular reason” why he reported some crimes, but not others.


                                              31
Juror number 4303 also stated that he had “four relatives who have been shot, stabbed,
robbed, grand theft auto [sic].” Two years earlier, the juror was arrested and “went to
jail” on a “traffic warrant” that had been issued because he “wasn’t paying his tickets.”
At voir dire, the court asked juror 4303 to remove a toothpick from his mouth.
       The prosecutor informed the court he had struck juror 4303 because he had “been
jailed for unpaid traffic tickets. He also indicated that he had been a victim of several
crimes but did not report all of them. He also indicated that he had several relatives who
had been victims of violent crimes. Finally, the court admonished him for talking with a
toothpick in his mouth. The prosecutor believed that [this juror] did not have respect for
the criminal justice system as evidenced by his reluctance to pay traffic fines, his failure
to report crime, and his disrespectful attitude displayed in front of this court.”
       The trial court found these reasons credible, noting that the juror “had the
toothpick in his mouth and [was] ask[ed] to remove it. It does appear that he has some
disrespect for the juridical system, the [prior arrest] and, again, the toothpick in his
mouth. It appears to the court there was certainly adequate reason for the people to
challenge him aside from any race considerations.”

           b. McGee’s comparative juror analysis of juror 4303 does not demonstrate
              discriminatory intent

       McGee argues that the prosecutor’s stated reasons for dismissing juror 4303 were
not credible because the prosecutor accepted two other jurors―numbers 3997 and
8755―who had previously been convicted of driving while under the influence of
alcohol.
       McGee has failed to demonstrate that jurors 3997 and 8755 were similarly situated
to juror 4303. First, as explained above, jurors 3997 and 8755 convictions for driving
while under the influence convictions were substantially older (9 years and 18 years
respectively) than juror 4303’s traffic warrant arrest, which occurred only two years prior
to the voir dire. Moreover, the prosecutor explained that he did not strike juror 4303
based solely on his prior arrest; rather, the prosecutor explained that the arrest, combined


                                              32
with the fact the juror had failed to report crimes and been asked to remove a tooth pick
from his mouth at voir dire, suggested he did not respect the judicial system. (See
generally People v. Barber (1988) 200 Cal.App.3d 378, 396 [peremptory permissible
based on fact that juror was wearing a “Coors jacket” which may have suggested lack of
respect for the court]; People v. Jordan (2006) 146 Cal.App.4th 232, 254-255 [affirming
dismissal of prospective juror in part because she had been chewing gum during voir dire,
showing a lack of respect for the court].) We find no basis for concluding that jurors
3997 or 8755 exhibited characteristics that were “materially similar” to those exhibited
by juror 4303. (DeHoyos, supra, 57 Cal.4th at p. 107.)

          8. Juror 9744
              a. Trial court proceedings
       Juror number 9744, called as a prospective alternative juror, was unmarried, had
one adult daughter and worked as a customer service representative for a dental company.
She had never witnessed or been the victim of a crime and had previously served on a
jury that reached a verdict. During voir dire, juror 9744 informed the court she had
“nephews and cousins that [were currently imprisoned],” explaining that “one was [in
jail] for bank robbery, one [was in jail] for embezzlement” and that she did “know what
the other one did.” The prosecutor did not ask juror 9744 any questions.
       The People informed the trial court juror 9744 had been challenged because she
had a “large number of relatives in prison,” including “‘nephews and cousins” who had
committed “bank robbery, . . . embezzlement, and another . . . unknown crime.” The
court found this reason credible, explaining: “Here again we have somebody who has
family members involved in fairly serious crimes and would appear to me that would be a
valid reason for the prosecutor to exercise a peremptory . . .”

              b. McGee’s comparative juror analysis of juror 9744 does not
                 demonstrate discriminatory intent

       McGee argues that a comparative juror analysis demonstrates the prosecution’s
proffered reason for striking juror 9744―family criminal history―was pretext for

                                             33
discrimination. Although McGee does not dispute a prosecutor may challenge a juror
based on “relative[s]’ contact[s] with the criminal justice system” (People v. Farnam
(2002) 28 Cal.4th 107, 138; see also Avila, supra, 38 Cal.4th at pp. 554-555), he argues
that, in this case, the prosecution did not strike four other jurors (numbers 7458, 6624,
3977, 9694) who had family members that were involved in criminal activity.8
       We reject McGee’s argument for multiple reasons. First, McGee overlooks that
juror 9744 was a prospective alternate for a jury panel that already included numerous
individuals who had friends or family members that were involved in criminal activity.
In Lenix, our Supreme Court emphasized that when conducting a comparative analysis,
we must remain cognizant that “the selection of a jury is a fluid process, with challenges
for cause and peremptory strikes continually changing the composition of the jury before
it is finally empanelled. . . . ‘[T]he particular combination or mix of jurors which a
lawyer seeks may, and often does, change as certain jurors are removed or seated in the
jury box.” (Lenix, supra, 44 Cal.4th at p. 623.) As the Ninth Circuit explained in
assessing this same argument during federal habeas proceedings, the trial court did not
act improperly in “accept[ing] as race-neutral the desire not to add another juror whose
relatives had criminal convictions to a jury that already had several such jurors.” (McGee
IV, supra, Fed.Appx. at p. 591; see also Mendoza v. City of West Covina (2012) 206
Cal.App.4th 702, 717 fn. 13 [California courts may “cite and rely on unpublished federal
. . . court decisions as persuasive authority”].)
       Second, McGee’s argument overlooks relevant differences in the characteristics of
juror 9744 and those of the four jurors who were left on the panel despite their family

8
        McGee also argues that the prosecution’s reason for striking juror 9744 were
pretext because “[m]ost of the prospective jurors had close relatives who were crime
victims or they had been victims themselves. Indeed, of the 14 jurors actually sworn to
hear . . . McGee’s case, only five did not fall into this category.” We fail to see how this
information is relevant to assessing the prosecutor’s reasons for striking juror 9744. The
prosecutor did not claim he struck juror 9744 because she was a victim of crime or
because her family members had been victims of crime. Rather, the prosecutor stated
that he struck the juror because she had close family members who were currently
incarcerated for crimes they had committed.

                                              34
criminal history. The record indicates that juror 7458 informed the court one of her
brothers had been arrested for failing to pay parking tickets, while another brother was
arrested in high school for shoplifting. The prosecutor could reasonably believe that such
offenses were qualitatively different than the crimes juror 9744’s family members had
committed, which included bank robbery, embezzlement and a third undisclosed offense.
       Similarly, juror 6624 stated that she believed her brother “may” have been arrested
for driving while under the influence of alcohol and that her son had been arrested after a
“pipe” was found in his car. She explained that her son had gone “on a trip with three
other guys and they were coming home from a snow trip, and they were stopped for
speeding and somehow it turned into them searching the car and they found what was
classified as drug paraphernalia, a pipe, so they were arrested.” Again, the prosecutor
could reasonably believe such crimes were qualitatively different than bank robbery or
embezzlement.
       Juror 3977 informed the court that his brother was a “habitual offender” who was
currently in prison for “a number of things.” Unlike juror 9744, juror’s 3977 statement
demonstrated he had only one family member with a criminal background. Moreover, as
the People argue in their return, juror 3977’s “characterization of his brother as a
‘habitual offender’” could have been reasonably interpreted by the prosecutor as an
indication that the jury “disapproved of his brother’s lifestyle.”
       Finally, as discussed above, although juror 9694 had multiple cousins serving time
in prison for violent offenses, the prosecutor explained there were two reasons he had
elected not to challenge her. First, the prosecutor noted that juror 9694 had provided
answers during voir dire indicating she would react negatively if defense counsel
questioned testifying witnesses in an aggressive manner. Second, the prosecutor
explained that juror 9694 was selected “late in the process” and that, given the high
concentration of prior prospective jurors who had “previously been convicted of of moral
turpitude crimes,” he elected to “keep 9694 at that point in time because [he] wasn’t sure
what else I was going to get.” McGee has provided no explanation why these
explanations regarding juror 9694 are not reasonable or credible.

                                             35
       In sum, we conclude that the comparative analysis McGee has provided in relation
to each of these eight African-American jurors is insufficient to demonstrate the trial
court erred in crediting the prosecutor’s race neutral reasons for exercising his
peremptory challenges.9

                                      DISPOSITION

       The petition for writ of habeas corpus is denied.




                                                  ZELON, J.
We concur:




       PERLUSS, P. J.




       WOODS, J.




9      Although McGee’s petition also argues that a comparative analysis demonstrates
juror 5912 was also struck based on his race, McGee concedes in his petition that his
counsel “withdrew his challenge to the striking of juror 5912” during the Wheeler
hearing. The transcript of the hearing indicates that after defense counsel was reminded
juror number 5912 had a recent conviction for petty theft, counsel stated “I have no
problem with that peremptory challenge.” To the extent counsel’s statement does not
constitute a waiver of any Wheeler claim regarding juror 5912, McGee’s comparative
analysis does not demonstrate the court erred in crediting the prosecutor’s reasons for
striking this juror. The prosecutor explained that juror 5912 had no prior jury experience,
a cousin serving a life sentence in prison and a two year old conviction for petty theft.
McGee has failed to identify any accepted juror who shared these combination of
qualities―lack of jury service, a recent criminal conviction and a family member serving
an extended life sentence.

                                             36
