Filed 7/1/13 P. v. Rivas CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F061170
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. BF129529B &
                   v.                                                                BF129529C)

ALLEN RIVAS et al.,

         Defendants and Appellants,

THE PEOPLE,                                                                                F062077

         Plaintiff and Respondent,                                           (Super. Ct. No. BF129529A)

         v.
                                                                                         OPINION
JOE CORONADO, JR.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
         James F. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant Allen Rivas.
         Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant
and Appellant Hilario Torres.



                        SEE CONCURRING AND DISSENTING OPINION
       Christine Vento, under appointment by the Court of Appeal, for Defendant and
Appellant Joe Coronado, Jr.
       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter
W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
                                          -ooOoo-
                                    INTRODUCTION
       On October 28, 2009, a consolidated information was filed in Kern County
Superior Court, charging defendants Allen Rivas, Hilario Torres, and Joe Coronado, Jr.,
with attempted premeditated murder (Pen. Code,1 §§ 187, subd. (a), 189, 664; count 1),
assault with a firearm (§ 245, subd. (a)(2); count 2), being a felon in possession of a
firearm (former § 12021, subd. (a)(1); count 3), and active participation in a criminal
street gang (§ 186.22, subd. (a); count 5). Coronado was also charged with being a felon
in possession of ammunition (former § 12316, subd. (b)(1); count 4).2 As to count 1, it
was alleged Coronado personally and intentionally discharged a firearm, proximately
causing great bodily injury or death (§ 12022.53, subd. (d)), and, as to Rivas and Torres,
that a principal in the commission of the offense so acted (id., subds. (d) & (e)(1)). As to
count 2, Coronado was alleged to have personally inflicted great bodily injury
(§ 12022.7). It was further alleged, as to counts 1 through 4, that defendant(s) charged
therein committed the crime for the benefit of or in association with a criminal street

1      All statutory references are to the Penal Code, unless noted otherwise.
2      Former sections 12021, subdivision (a)(1) and 12316, subdivision (b)(1) were
repealed as of January 1, 2012, and their provisions reenacted without substantive change
as sections 29800, subdivision (a)(1) and 30305, subdivision (a), respectively. (Stats.
2010, ch. 711, §§ 4 & 6; see People v. Correa (2012) 54 Cal.4th 331, 334, fn. 1.)
Because defendants were convicted under the repealed statutes, we refer to former
sections 12021 and 12316 throughout this opinion for clarity and convenience. For
brevity, we also omit the word ―former.‖



                                             2.
gang (§ 186.22, subd. (b)(1)). Last, it was alleged Rivas and Torres each had previously
been convicted of a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds.
(c)-(j), 1170.12, subds. (a)-(e)).
       Following a jury trial, Rivas and Torres were convicted of count 3, felon in
possession, and acquitted of the remaining charges. Count 3‘s gang enhancement
allegations were found not true as to both men. Coronado was convicted of counts 1
through 4, but acquitted of count 5. The jury found true all but the gang enhancement
allegations, which it found not true. Following a bifurcated court trial, Rivas and Torres
were each found to have suffered a prior conviction under the ―Three Strikes‖ law.3
       Rivas and Torres requested that the court dismiss their prior strike convictions.
The requests were denied, and each was sentenced to six years in prison and ordered to
pay various fees, fines, and assessments. Coronado was sentenced to a total unstayed
term of life plus 25 years to life in prison, and was ordered to pay restitution along with
various fees, fines, and assessments.
       Defendants now appeal, raising numerous claims of error.4 Coronado contends
that: (1) the trial court erred in denying his Batson/Wheeler5 motion; (2) the trial court
erred in instructing on the kill zone theory; (3) the kill zone theory instruction was
ambiguous and misleading; (4) the prosecutor committed misconduct in vouching for his
case; (5) the trial court erred when it denied Coronado‘s request to sever and bifurcate


3      The prosecutor did not proceed on the section 667, subdivision (a) allegations, as
the jury‘s verdicts rendered them inapplicable to both Rivas and Torres.
4      Because Coronado was sentenced several months later than Rivas and Torres, his
appeal originally was separate from theirs. By order of January 11, 2013, we
consolidated the two cases.
5      Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler). Wheeler has been overruled in part by Johnson v. California
(2005) 545 U.S. 162.



                                              3.
gang issues; (6) the trial court erred in denying Coronado‘s Pitchess6 motion; (7) counsel
was ineffective for failing to adequately argue to bifurcate the gang issue; and (8)
cumulative error occurred. We find no merit in Coronado‘s contentions and affirm.
       Torres and Rivas make various contentions on appeal. Because we agree that
there is insufficient evidence to sustain either of their convictions for possession of a
firearm, we reverse their convictions, rendering their remaining contentions moot.
                                           FACTS
    A. PROSECUTION EVIDENCE
       The Shooting
       On the afternoon and evening of September 26, 2009, Johnny Elizalde threw a
birthday party at his Bakersfield home for himself and his niece. Defendants were among
the 30 to 60 friends and family members who attended. Elizalde had known Coronado,
who lived down the street, for years, and defendants were present at Elizalde‘s
invitation.7 Most of those at the party congregated in the vicinity of the backyard patio,
where Elizalde had music, drinks, and food.
       Although Elizalde had not been involved for some 20 years, he grew up in the
Colonia, a southern gang. He was familiar with the Okie Bakers; they were a south side
gang who ―used to kick with the Colonia.‖ Elizalde was aware there was rivalry between
southern and northern Hispanic gangs. Bakersfield was southern territory; southern
gangs associated with the number 13.
       Elizalde‘s wife, Claudia, and her family, including her brothers Ricardo, René,
Johnny, and Alejandro Serrano, were from Delano.8 Elizalde was aware that Delano was

6      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
7      Elizalde knew defendants by their nicknames: ―Clover‖ for Coronado, ―Scooby‖
for Rivas, and ―Cruiser‖ for Torres.
8      For the sake of clarity, we will refer to Claudia and members of the Serrano family
by their first names. No disrespect is intended.



                                              4.
northern territory. He had never seen Claudia, Ricardo, or René be involved with gang-
related activities. When Elizalde gave parties, however, they would often throw signs,
like a one and a four, with their hands.9 They were just ―messing around.‖ Claudia
playfully did so on this occasion.
       The night of the party, Elizalde was wearing a Raiders jersey, Ricardo was
wearing a 49ers shirt, and Coronado was wearing a Pittsburgh Steelers jersey. The party
was not a gang party; according to Elizalde, ―[e]verybody uses Niners‖ without it making
them ―14.‖10 Elizalde even danced with Torres, who was wearing a white tank top with a
blue rag around his neck. Rivas was wearing a gray polo or T-shirt. None of the
defendants said anything to Elizalde about gangs or about Elizalde‘s family being from
Delano. In fact, prior to the discussion between Rivas and Ricardo that preceded the
shooting, nobody at the party heard anyone say anything gang related. Nobody saw
anyone with a weapon prior to the shooting.
       At some point during the party, Elizalde‘s family was singing and dancing in the
backyard. When the music stopped, Ricardo and his wife, Yolanda, started to return to
the area in which they had been sitting. As they did so, Rivas came up to Ricardo, tapped
him on the shoulder, asked if he could talk to him, and pointed toward the garage.
Ricardo and Yolanda walked to the garage to see what he wanted. Yolanda felt
something was not right. She had ―sensed something weird‖ when defendants arrived at
the party, because Torres was wearing a ―wife beater‖ shirt with a bandana over his neck,
and when she saw people like that, she thought of gangs right away. Also, at times she
caught the three ―just staring over‖ at her group, which included René.
       Once inside the garage, Rivas asked Ricardo why Ricardo was throwing gang
signs. Ricardo asked what Rivas was talking about, said he was there with his family

9      Northern gangs associate with the number 14.
10     The color red is associated with Nortenos.



                                              5.
having a good time, and asked what Rivas wanted to do. Ricardo, who said he had not
thrown any gang signs, interpreted Rivas‘s question as a challenge to fight. During the
conversation, Yolanda realized Torres and Coronado were standing an inch or two from
her, looking upset. This made her uncomfortable because of what Torres was wearing
and the fact one had approached Ricardo and then all three got together.
       Yolanda yelled at Rivas that if he had anything he wanted done or any trouble, he
needed to leave, because it was her sister-in-law‘s house and they did not go over there to
cause problems like that. Rivas then said, ―let‘s take it outside,‖ and started walking out
of the garage to the street. When Yolanda turned to Coronado and Torres, they put up
their hands. Torres told her, ―no, no, no, it‘s cool,‖ and Coronado said nothing was going
to happen. At that point, the lights went off in the garage. Yolanda saw Coronado and
Torres walk out behind Rivas. She held onto Ricardo so he would not follow them.
       Later, around 10:00 p.m., René was dancing when somebody came and said his
brother was getting into an argument in the front. René walked through the garage.11
René‘s son, Daniel, walked close to where Rivas was standing, because he thought
Ricardo was going to need help. Daniel was standing on the sidewalk, looking into the
street, when Rivas struck him once or twice in the jaw. Rivas struck Daniel without
provocation; neither had said anything to the other before the fight. Daniel fought back.
They were the only ones fighting.12 Opinions differed on who was winning. According


11     Upon becoming aware something was happening, people began running through
the garage from the backyard to the front.
12     The testimony at trial was that Daniel and Rivas were the only ones fighting.
However, Jose Flores, a good friend of the Serrano family, gave a statement to Deputy
Avila in which he related that René and Ricardo both were arguing with ―those guys‖
(presumably, defendants). Vanessa Serrano gave a statement in which she said she saw
Flores and Daniel fighting with several subjects in front of the residence, and that she
also saw René fighting. Yolanda told Deputy Avila that when she heard someone tell
someone in the backyard that there was a fight, René was already out there fighting.



                                             6.
to Yolanda, defendants had all moved out to the street by this time. However, Elizalde
did not see Coronado or Torres anywhere.
         Flores saw René heading toward Daniel. Something else appeared to draw René‘s
attention, and he turned the other way and quickly walked toward Coronado as if they
were going to fight. Vanessa saw Coronado then pull a small black gun from his waist,
point it at René, and shoot him one time in the stomach. She did not see any other
weapons. Torres was standing about an arm‘s length from Coronado when Coronado
fired. He did not do anything as Coronado was pulling out the firearm. Nothing gang
related was said. Flores (who did not see a gun in Coronado‘s hand but saw the flame
come out of the barrel) estimated Coronado shot René when the two were about four feet
apart.
         According to Vanessa, Coronado walked away after he fired the shot. Torres went
in the same direction. According to Elizalde, who did not see the shooting but heard one
shot, defendants ran in the direction of Coronado‘s house. Rivas was first, Torres was
behind him, and Coronado was last. According to Ricardo, who likewise did not actually
see the shooting but heard one shot, Coronado immediately walked away and defendants
all left. Yolanda confirmed there was only one shot; she did not see Torres or Rivas at
the time of, or after, the gunshot, although she saw Coronado get into a small, dark blue
car. According to Daniel, however, he saw Torres walking away from the house before
the gunshot went off. At the time the shot was fired, Torres was already down the street.
         Shot in the upper abdomen, René was hospitalized for close to a month, during
which time he underwent three surgeries due to his injuries and resulting infections. As
of the time of trial, he had undergone five operations, and had lasting physical effects, as
a result of the gunshot wound.
         On September 28, 2009, a search was conducted at Coronado‘s residence. A
McDonald‘s restaurant bag containing a box of twenty .22-caliber rounds was found
inside an old sofa in the backyard.

                                             7.
       That same morning, Senior Deputy Marvin Gomez and Deputy Andrew Avila
spoke to Coronado at the residence.13 Coronado related that Elizalde had invited him to
the party. When Coronado asked who would be there, Elizalde said he would have some
people from Delano who were Nortenos, but that they were going to ―keep everything
cool.‖ As soon as Coronado arrived, however, he felt tension. A lot of people were
wearing red. Coronado mentioned to Elizalde that some of the partiers were drunk and
looking at him funny, like there were going to be problems, but Elizalde told him not to
worry about it.
       Coronado related that later, after the beer ran out and people started drinking hard
liquor, he decided it was time to go. As he started walking out through the garage, ―all
the chaos started happening.‖ Coronado heard people yelling ―fuckin‘ scrapes [sic],‖
then, when everyone started running in and out of the garage and to their vehicles, he left.
He was wearing a Steelers jersey bearing the number 10. When people were yelling
―scrapes [sic],‖ he assumed they thought he was Southern.
       Coronado related that he heard one gunshot, but did not realize anyone had been
shot. When he got home, however, his ―old lady‖ told him she heard gunshots on the
street and right behind the house. Coronado estimated he got home around 10:00, then he
stayed in an abandoned house down the street. He denied shooting anybody or having a
gun on him.
       Gomez and Avila interviewed Torres later that same day.14 Torres denied being at
the party, and said he was with his wife and children at his mother‘s house. Confronted
with a photograph taken at the party, however, he admitted he and his wife were there,
but stated they left and he did not know what happened. He related that Elizalde had



13     An audio recording of the interview was played for the jury.
14     An audio-video recording of the interview was played for the jury.



                                             8.
invited them. At some point, it seemed like everyone went into the garage. He and his
wife also went in; they heard a gunshot and then left.
       The Gang Expert‟s Testimony
       Senior Deputy Gomez testified as the prosecution‘s gang expert. He was familiar
with the Okie Bakers, which, the parties stipulated, was a criminal street gang within the
meaning of the Penal Code. The gang‘s primary activities were murder, attempted
murder, illegal possession of guns, drug sales, carjacking, and drive-by shootings.
       Gomez explained that the Okie Bakers were a Southern Hispanic street gang.
Southern Hispanic gangs claim allegiance to the Mexican Mafia prison gang. Southern
Hispanic gang members ―are the soldiers for the Mexican Mafia.‖ Although Southern
gang members are all over now because of family members being incarcerated in
Northern California, the traditional stronghold for Southern Hispanic gangs is the city of
McFarland on south. The color blue and number 13 are associated with Southerners.
Nortenos are the arch rival of Southerners. They claim their allegiance to the Nuestra
Familia prison gang, with that group calling the shots for all the foot soldiers, which are
called Nortenos or Northerners. The geographic location for Nortenos is Delano on
north. The color red and number 14 are associated with Northerners.
       Gomez explained that throwing gang signs at someone is a form of disrespect. In
addition, ―scraps‖ or ―scrapas‖ is a term used by Northerners to disrespect Southern
Hispanic gang members. Especially with Hispanic gangs, respect is somewhat
synonymous with fear. The level of respect ―is a big deal.‖ Gomez further explained that
a moniker is a nickname gang members use to identify themselves. Coronado‘s moniker
was Clover, Torres‘s moniker was Cruiser, and Rivas‘s monikers were Scooby, Little
Scooby, and Scoobs.
       In researching defendants, Gomez reviewed offense reports, field interview cards,
street checks, photographs, bookings, tattoos, and associates, and also had conversations
with defendants. Based on these items (which Gomez detailed for the jury), together with

                                             9.
his training and experience, Gomez opined that on September 26, 2009, defendants were
members of, and active participants in, the Okie Bakers criminal street gang.
       Gomez also reviewed the reports and information generated in the current case. In
answer to hypothetical questions tracking the evidence presented by the prosecution,
Gomez opined that the shooting in this case was done in association with the Okie Bakers
street gang, since there were three gang members involved. Gomez further opined the
shooting was for the benefit of the gang, because attempting to kill or shoot a gang rival
instills fear in the witnesses and citizens in the area and the community, which in turn
makes citizens in the community reluctant to report illegal activities of the gang. Gomez
additionally opined that the shooting furthered the criminal activity of the gang by
making citizens scared to report the illegal activities of the gang.
       In Gomez‘s opinion, possession of a firearm by an Okie Bakers member, who is a
felon prohibited from possessing a firearm, would also be for the benefit of, and in
association with, the Okie Bakers criminal street gang, because possessing a firearm that
is ready for use offensively to shoot somebody benefits the gang when attacking rival
gang members. Possession of a firearm also promotes, furthers, or assists gang members
in criminal conduct, because being known for carrying and using weapons and not being
afraid to use violence against citizens or rival gang members allows the gang to continue
with its criminal activity. Similarly, possessing ammunition would benefit the gang
because it could be placed into a firearm, and a firearm could then be used to shoot a rival
gang member or citizens. That act would further the gang‘s criminal activity by its effect
on the gang‘s reputation. Using firearms instills fear in the community, which in turn
makes citizens not want to report the gang‘s illegal activities.
   B. DEFENSE EVIDENCE
       Alejandro Serrano was in the backyard with his girlfriend when he heard yelling
coming from the front yard. René was not in the backyard at the time. Alejandro quickly
went out to the front through the garage. Ricardo was right behind him. Once Alejandro

                                             10.
got out front, he saw a bunch of males ―kind of scuffling.‖ Defendants were three of the
four or five men involved. Then he heard the gunshot, which sounded like it came from a
.22-caliber handgun, and ―everybody just scattered.‖ The muzzle flash came ―from the
scuffling.‖ During the time he was in the backyard, Alejandro did not hear any insults or
anything about gang activity. He did not see any kind of weapon.
        Harlan Hunter testified as a gang expert. He reviewed various materials, including
employment records and police reports, with respect to Coronado. Based on everything
he reviewed, Hunter opined that on September 26 and 27, 2009, Coronado was not a
member of the Okie Bakers, and had, in fact, gotten out of the gang in early to mid-2007.
Hunter did not conduct any review with respect to Torres or Rivas.
                                        DISCUSSION
   I.   SUFFICIENCY OF THE EVIDENCE
        Rivas and Torres contend the evidence is insufficient to sustain their convictions
for possession of a firearm by a felon. We agree.
        The standard of review by which we assess such a claim applies regardless of
whether the prosecution relies primarily on direct or on circumstantial evidence. (People
v. Lenart (2004) 32 Cal.4th 1107, 1125.) The test of sufficiency of the evidence is
whether, reviewing the whole record in the light most favorable to the judgment below,
substantial evidence is disclosed such that a reasonable trier of fact could find the
essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26
Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial
evidence is that evidence which is ―reasonable, credible, and of solid value.‖ (People v.
Johnson, supra, at p. 578.) An appellate court must ―presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the evidence.‖ (People
v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence
(People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses,
or resolve factual conflicts, as these are functions reserved for the trier of fact (In re

                                              11.
Frederick G. (1979) 96 Cal.App.3d 353, 367). ―If the circumstances, plus all the logical
inferences the jury might have drawn from them, reasonably justify the jury‘s findings,
our opinion that the circumstances might also reasonably be reconciled with a contrary
finding does not warrant a reversal of the judgment. [Citations.]‖ (People v. Tripp
(2007) 151 Cal.App.4th 951, 955.)
       ―Before the judgment of the trial court can be set aside for insufficiency of the
evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis
whatever is there sufficient substantial evidence to support it. [Citation.]‖ (People v.
Redmond (1969) 71 Cal.2d 745, 755.) However, ―[e]vidence which merely raises a
strong suspicion of the defendant‘s guilt is not sufficient to support a conviction.
Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis
for an inference of fact. [Citations.]‖ (Ibid.)
                            Possession of a Firearm by a Felon
       ―The elements of the offense proscribed by section 12021 are conviction of a
felony and ownership, possession, custody or control of a firearm. [Citations.]
Knowledge is also an element of the offense. [Citation.]‖ (People v. Jeffers (1996) 41
Cal.App.4th 917, 922; accord, People v. Snyder (1982) 32 Cal.3d 590, 592.) ―No specific
criminal intent is required, and a general intent to commit the proscribed act is sufficient
to sustain a conviction. [Citations.]‖ (People v. Snyder, supra, at p. 592.) ―The elements
of unlawful possession may be established by circumstantial evidence and any reasonable
inferences drawn from such evidence. [Citations.]‖ (People v. Williams (1971) 5 Cal.3d
211, 215.)
       It is undisputed there was no evidence Rivas or Torres actually physically
possessed a firearm on the night in question.15 Indeed, none of the witnesses had any

15    The parties stipulated defendants were felons and prohibited by law from
possessing a firearm.



                                              12.
idea, prior to Coronado pulling the gun from his waist area and firing, that there was even
a gun at the party. Accordingly, we must determine whether there was substantial
evidence Rivas or Torres constructively possessed the gun, or aided and abetted
Coronado‘s possession of it.
       ―Constructive possession occurs when the accused maintains control or a right to
control the contraband; possession may be imputed when the contraband is found in a
place which is immediately and exclusively accessible to the accused and subject to his
dominion and control, or to the joint dominion and control of the accused and another.
[Citation.]‖ (People v. Williams, supra, 5 Cal.3d at p. 215.) ―The accused also has
constructive possession of [contraband] that [is] in the physical possession of his agent or
of any other person when the defendant has an immediate right to exercise dominion and
control over the [contraband]. [Citations.]‖ (People v. Francis (1969) 71 Cal.2d 66, 71.)
―The inference of dominion and control is easily made when the contraband is discovered
in a place over which the defendant has general dominion and control: his residence
[citation], his automobile [citation], or his personal effects [citation]. However, when the
contraband is located at premises other than those of the defendant, dominion and control
may not be inferred solely from the fact of defendant‘s presence, even where the
evidence shows knowledge of the presence of the [contraband] .…‖ (People v. Jenkins
(1979) 91 Cal.App.3d 579, 584.)
       A conviction for possession of contraband may also be upheld where there is
evidence the defendant aided and abetted another in committing the crime of possession.
(People v. Francis, supra, 71 Cal.2d at p. 72.) ―A ‗person aids and abets the commission
of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the
perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the
commission of the offense, (3) by act or advice aids, promotes, encourages or instigates,
the commission of the crime.‘ [Citation.]‖ (People v. Marshall (1997) 15 Cal.4th 1, 40.)
―Aiding and abetting does not require participation in an agreement to commit an offense,

                                            13.
but merely assistance in committing the offense. [Citation.]‖ (People v. Morante (1999)
20 Cal.4th 403, 433, fn. omitted.) Factors that may be considered in determining aiding
and abetting include presence at the crime scene, companionship, and conduct before and
after the offense. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) However, mere presence
at the scene of an offense is not sufficient, standing alone, to sustain a conviction.
(People v. Miranda (2011) 192 Cal.App.4th 398, 407.)16
       Leaving aside the gang expert‘s testimony, the evidence in the present case
showed Rivas, Torres, and Coronado attended the party together and, after the shooting,
fled at the same time, at least according to some witnesses. They sat at the same table
during the party, and were together when Rivas confronted Ricardo in the garage. At the
time the shot was fired, Rivas was fighting with Daniel Serrano. Torres was an arm‘s
length from Coronado when the latter pulled the gun; Torres did nothing.
       The foregoing does not support a reasonable inference Rivas or Torres knew
Coronado possessed a firearm, let alone that either of them had the right to exercise
dominion and control over it. Similarly, no conduct by Rivas or Torres assisted
Coronado in achieving his unlawful possession of the gun. (See People v. Thompson
(2010) 49 Cal.4th 79, 117.) Although one gang member‘s ―act of standing backup‖ can,
depending upon the circumstances, reasonably be inferred to have aided and encouraged
another gang member‘s commission of a crime (see People v. Gonzales and Soliz (2011)

16      ―‗A person who knowingly aids and abets criminal conduct is guilty of not only
the intended crime [target offense] but also of any other crime the perpetrator actually
commits [nontarget offense] that is a natural and probable consequence of the intended
crime.… [Citation.]‘ [Citation.] Liability under the natural and probable consequences
doctrine ‗is measured by whether a reasonable person in the defendant‘s position would
have or should have known that the charged offense was a reasonably foreseeable
consequence of the act aided and abetted.‘ [Citation.]‖ (People v. Medina (2009) 46
Cal.4th 913, 920.)
       The Attorney General implicitly concedes the natural and probable consequences
doctrine does not apply to the facts of the present case.



                                             14.
52 Cal.4th 254, 296), no such inference can reasonably be drawn from Torres‘s conduct
here because there is no evidence he or anybody else knew Coronado was armed. We
might speculate Torres and Rivas were aware of the gun‘s presence; it is also possible
either or both had the right to exercise dominion and control over it should they wish to
do so. However, ―a mere possibility is nothing more than speculation‖ (People v. Ramon
(2009) 175 Cal.App.4th 843, 851), and ―‗speculation is not evidence, less still substantial
evidence.‘ [Citations.]‖ (People v. Waidla (2000) 22 Cal.4th 690, 735.) As the
California Supreme Court has stated, ―We may speculate about any number of scenarios
that may have occurred on the [evening] in question. A reasonable inference, however,
‗may not be based on suspicion alone, or on imagination, speculation, supposition,
surmise, conjecture, or guess work. [¶] … A finding of fact must be an inference drawn
from evidence rather than … a mere speculation as to probabilities without evidence.‘
[Citations.]‖ (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on another ground in
In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5 & 545, fn. 6.)
       In arguing the evidence is sufficient to uphold the convictions, the Attorney
General points to the testimony of Senior Deputy Gomez, the People‘s gang expert.
Gomez described, in part, a Bakersfield Police Department report, dated December 4,
2006, of a case in which Coronado was found driving a vehicle. He had blood on his
shirt. Torres, one of four passengers in the vehicle, had a loaded handgun in his
waistband. When asked if anyone else inside the vehicle knew he had the handgun,
Torres related that Coronado and the other male passenger both knew, because ―he didn‘t
want to do them dirty.‖ Coronado and Torres both admitted being Okie Bakers. Gomez
explained that ―[d]oing somebody dirty‖ is disrespecting them by not letting them know
there is a firearm in the vehicle or in the person‘s possession.
       Gomez also described an offense report, dated August 20, 2005, in which a
sheriff‘s deputy made a traffic stop on Torres and two other subjects. One of the subjects
had a firearm on his person. Gomez found this significant because Torres, a self-

                                             15.
admitted Okie Baker, was in Okie Bakers territory with two other subjects, one of whom
was armed. Gomez explained that the firearm was capable of being passed around and
used by the other gang members. It was readily available.
        In addition, Gomez described a sheriff‘s report, dated May 8, 2001, in which
Rivas was identified as having handed off a handgun to someone who then shot Tommy
Tillery. Gomez found this significant because Tillery was beating up one of the subjects
who was involved. Handing off a firearm to another person so that person could shoot
the victim who was winning the assault showed the three subjects were working together
to get the victim, Tillery. Gomez explained that ―to back up somebody‖ means to offer
protection to a fellow gang member. If that person gets in a fight, the other gang member
is expected to back him up because not doing so would be disrespecting the person.
        As the Attorney General acknowledges, the jury was admonished at the outset of
Gomez‘s testimony that Gomez was going to testify ―regarding gang and gang activity as
to one or all of the defendants,‖ and that his testimony was ―going to go to the defendants
as to their gang activity in this case.‖ During the course of jury instructions, jurors were
told:

              ―Deputy Marvin Gomez testified in part for the People for a limited
        purpose; that is, as a gang expert.[17]

               ―The opinions expressed by the deputy relate to the gang
        enhancements alleged in the Information in Counts 1 through 4 for Joe
        Coronado; Counts 1 through 3 for Hilario Torres; and Counts 1 through 3
        for Allen Rivas; and the alleged violation of Penal Code Section 186.22(a),
        in Count 5, for each defendant.

               ―Part of the information relied upon by the officer, that is, certain
        police reports, field interview cards, booking sheets, tape recorded
        statements, personal contacts, and/or transcripts involving alleged criminal



17      Gomez also testified concerning his investigation of the shooting itself.



                                             16.
       conduct attributed to other individuals or to the defendants were not being
       offered for the truth of the matter stated therein.

               ―Such information is being used to show the basis upon which the
       officer arrived at his opinions.

               ―The opinions of the deputy and the information upon which he
       relies is not being offered to show that the defendants are of bad character
       or have a disposition to commit the crimes charged in the information.

             ―You may consider such testimony only for the limited purpose for
       which it is being offered.‖ (Italics added.)
       The offense-report information recited by Gomez was not admitted, nor was it
admissible, for the truth of the matters contained in the reports. ―[A] witness‘s on-the-
record recitation of sources relied on for an expert opinion does not transform
inadmissible matter into „independent proof‟ of any fact. [Citations.]‖ (People v.
Gardeley (1996) 14 Cal.4th 605, 619, italics added; see People v. Ramirez (2007) 153
Cal.App.4th 1422, 1427.)
       Moreover, Gomez‘s testimony produced nothing more than speculation as to what
possibly occurred on the night of the party. Even if we were to draw an inference from it
that Rivas and Torres may have known Coronado possessed a firearm, this is insufficient
since, even assuming knowledge, the testimony does not give rise to an inference they
had the right to exercise dominion and control over the gun. That the gun may have been
capable of being passed around and used by all is simply not enough.
       People v. Sifuentes (2011) 195 Cal.App.4th 1410 (Sifuentes) is instructive. In that
case, police found Sifuentes and Lopez — both convicted felons — in a motel room.
When the officers entered, Sifuentes was lying on top of the bed nearest the door, while
Lopez was kneeling on the floor on the far side of the second bed. A loaded handgun
was subsequently found under the mattress next to where Lopez had been kneeling. (Id.
at pp. 1413-1414.)




                                            17.
       At trial, a gang expert testified, based on arrest reports, field interviews,
defendants‘ past association with other gang members, and other police contacts and
information, that Sifuentes and Lopez were active participants in Santa Ana‘s Delhi
criminal street gang on the day of their arrest. The expert based his opinion on several
prior incidents in which defendants possessed weapons. This information was offered as
foundation for the expert‘s opinions, not to prove defendants possessed a weapon on the
current occasion. (Sifuentes, supra, 195 Cal.App.4th at pp. 1414-1415 & fn. 2.) The
expert further testified ―that weapons, particularly guns, play a prominent role in the gang
subculture. [The expert] defined a ‗gang gun‘ as a gun that is passed freely among gang
members to use in their criminal endeavors. He explained that aside from ‗certain
restrictions,‘ a gang gun is ‗accessible‘ to all gang members ‗[a]t most times.‘ Gang
members ‗frequently and almost are [sic] required to share information about the
possession of gang guns and where they‘re kept.‘ A gang member possessing a gun will
inform other gang members he has a firearm for two reasons: (1) possession of a gun
garners respect within the gang for the possessor, and (2) to alert other gang members
who are subject to probation or parole terms that prohibit them from knowingly
associating with anyone carrying a gun.‖ (Id. at p. 1415.) The expert further opined that
a gang‘s possession of guns promoted, furthered, or assisted its felonious criminal
conduct, because possession facilitated its criminal endeavors and enhanced its
reputation. He asserted that a gang member‘s mere possession of a gun ―‗at the ready‘‖
benefits the gang, but admitted he had no information that Lopez kept a gun for the gang,
and that no direct evidence tied Lopez‘s gun to other gang members or to its use by the
gang. (Id. at p. 1416.)
       Sifuentes and Lopez were convicted, inter alia, of possession of a firearm by a
felon. (Sifuentes, supra, 195 Cal.App.4th at p. 1413.) Sifuentes‘s conviction was
obtained based on the doctrine of constructive possession. (Id. at p. 1417.) On appeal, he
claimed the evidence was insufficient to support the requisite conclusion he had the right

                                              18.
to control the firearm discovered near Lopez. (Id. at p. 1413.) The Court of Appeal
agreed. It reasoned:

             ―The prosecution‘s gang expert did not testify any gun possessed by
      a gang member automatically constitutes a gang gun to be shared with all
      other gang members. Rather, the gang expert explained gangs use gang
      guns offensively and defensively to commit crimes and assault their rivals.
      Under those circumstances, firearms are freely shared and therefore gang
      members will know who among them has possession of these weapons.
      There was no evidence, however, the gun officers discovered had ever been
      used in this manner.

              ―Even assuming the firearm Lopez possessed fell into the gang gun
      category, no evidence showed Sifuentes had the right to control the
      weapon. The gang expert did not testify all gang members always have the
      right to control a gang gun, whether kept in a safe place or held by another
      gang member. Rather, the expert testified a gang gun was ‗accessible‘ to
      gang members ‗at most times,‘ but did not elaborate. When asked if ‗every
      single [gang] member‘ could use the gang gun, the expert responded
      ‗certain restrictions‘ applied, but failed to describe the nature of those
      restrictions. Based on the expert‘s testimony, it also may be that gang
      members have no right to control a firearm held by a compatriot where no
      offensive or defensive actions are undertaken. That was the case here,
      where Sifuentes and Lopez simply occupied a motel room with two
      females. There was no evidence defendants had used or were about to use
      the gun offensively or defensively. Consequently, there is no basis to
      conclude Sifuentes had the right to control the weapon.

             ―The Attorney General argues the jury could have relied on
      information that in 1997 Sifuentes gave his female companion a firearm to
      hide in her purse, and she later told an investigator that Sifuentes always
      carried a weapon. [The expert] testified about this incident based on a 1997
      police report, which reported the female companion‘s statement .…
      Although the trial court overruled Sifuentes‘s hearsay objection, the court
      did not admit the female companion‘s statement for its truth, but as part of
      the basis for the expert‘s opinion Sifuentes was an active participant in the
      Delhi gang. [Citation.] We therefore may not consider the hearsay
      statements of Sifuentes‘s female companion in assessing whether Sifuentes
      constructively possessed the firearm Lopez attempted to hide.

              ―The Attorney General also claims the expert testified the gun was
      ‗jointly possessed,‘ but no evidence supports this assertion.… The


                                           19.
       prosecutor did not elicit, and the expert did not testify that a hypothetical
       individual in Sifuentes‘s position would have the right to control the
       firearm discovered under the mattress.

               ―The prosecutor failed to elicit from the expert any substantial
       evidence Sifuentes had the right to control the firearm. The expert did not
       testify all gang members had the right to control communal gang guns,
       assuming this firearm fell into that category. Rather, as discussed above, he
       testified certain restrictions applied concerning ‗access‘ to a gang gun and
       did not explain these restrictions or whether he equated access with a right
       to control. Nor did the expert link Sifuentes to the particular firearm found
       next to Lopez.

              ―Thus, the evidence falls far short of providing substantial evidence
       Sifuentes had the right to control the firearm in this case.‖ (Sifuentes,
       supra, 195 Cal.App.4th at pp. 1417-1419, fns. omitted.)
       In the present case, the Attorney General seeks to distinguish Sifuentes. She says:
―First, the incident reports relied on by Deputy Gomez in forming his opinion,
established that these appellants had a propensity to share gang guns in the past. Second,
the incident reports further established that the Okie Baker gang and these appellants
considered it a sign of disrespect not to inform other gang members that a fellow gang
member was armed with a firearm. Third, the evidence in this case indicates that
appellants acted in concert with one another by sitting together during the party,
accompanying each other to the garage when confronting Ricardo Serrano about use of
gang signs, accompanying each other to the front of the house where the altercation and
shooting occurred and, immediately after Coronado shot René Serrano, all three
appellants fled the scene of the shooting. [¶] Thus, the jury was [sic] could reasonably
infer that appellants had knowledge of, and joint or constructive possession of the gun.
The above evidence, taken together, supports a logical inference, drawn from
circumstantial evidence, that appellants knew Coronado possessed a firearm, and that it
was available for their use if needed, and that he would use it if necessary to protect
fellow gang members, to wit, Rivas and Torres.‖




                                             20.
       The Attorney General overstates the effect of Gomez‘s testimony, and blurs the
line between permissible and impermissible use of the incident reports.18 Even if we
were to assume the evidence showed defendants had a propensity to share gang guns,
there is nothing to suggest the gun possessed by Coronado was such a gun as opposed to
his personal weapon, or that the gun was immediately available to Torres and/or Rivas.
Gomez did not testify that if one Okie Baker possesses a gun, his fellow gang members
all have the right to exercise dominion and control over it. That such a gun is ―capable of
being passed around‖ does not change this. Moreover, knowledge that a companion who
is a fellow gang member possesses a firearm does not constitute the right to exercise


18      The prosecutor did much the same thing at trial, telling jurors: ―Finally …, you
might have some questions on felons in possession of a firearm. How is it that all three
defendants are charged with a firearm when Coronado‘s the only one who had possession
of it? [¶] If you read that instruction, it talks about possessing, possession, if I have the
right to control it, okay, or although it‘s not on my person at that particular moment, I still
am technically, and under the law, in possession of it. [¶] Do you remember when we
talked to -- to Deputy Gomez about the -- the gang evidence? [¶] Deputy Gomez relied
on an incident where Hilario Torres told officers that there was a firearm and he didn‘t
want to do his friends dirty. Meaning he didn‘t want to not let his friends who were with
him know he had the firearm because that‘s what gang members do. [¶] When you‘re in
a gang -- and, again, this is irrational to some people, but -- and that‘s why we have our
expert. You know, when you‘re doing these types of crimes and you‘re in a gang, you
know, when you‘re -- when you‘re a member, you know what your gang member friends
are doing and what they‘re possessing. You know if your buddy‘s selling -- selling dope.
You know if your buddy has a firearm when you go out. You know this because you
guys are all together and it‘s part of what you guys do. [¶] So that‘s why all three
defendants are charged with that crime, because each one of them had to have known that
Coronado had that firearm when the incident occurred.‖ The prosecutor reiterated this
argument in his closing summation.
        It is improper for a prosecutor to argue in such a way as to obscure the limited
nature of the evidence in question. (See People v. Clark (1993) 5 Cal.4th 950, 1008-
1009, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.) Although defendants forfeited any claim of prosecutorial misconduct by failing
to object to the prosecutor‘s remarks (Clark, supra, at p. 1008), this does not mean we
can now consider Gomez‘s testimony for any and all purposes.



                                             21.
dominion and control over that firearm. Defendants‘ actions at the party do not alter this
fact.19
          The evidence adduced at trial is insufficient to establish that Torres and/or Rivas
had possession, whether actual or constructive, of a firearm on the night in question, or
that they aided and abetted Coronado‘s possession of a firearm. Accordingly, the
judgments in Kern County Superior Court case Nos. BF129529B and BF129529C must
be reversed. Retrial in those cases is barred. (People v. Anderson (2009) 47 Cal.4th 92,
104 & cases cited.) Our disposition renders Torres‘s and Rivas‘s remaining contentions
moot.
     II. BATSON/WHEELER CLAIM
          At trial, defendants jointly brought a Batson/Wheeler motion on grounds that six
of the prosecutor‘s seven peremptory challenges were used against women, of whom four
were Hispanic females. The trial court found that the defendants had stated a prima facie
case of improper use of peremptory challenges and, after explanation by the prosecutor,
found that the prosecutor excused the jurors for race-neutral reasons. Coronado alone
now challenges the prosecutor‘s explanation for excusing one of those prospective jurors,
Doris O., for failing to satisfy Batson/Wheeler requirements. The six other challenges are
not questioned in this appeal. We find no violation of Batson/Wheeler.
          ―The purpose of peremptory challenges is to allow a party to exclude prospective
jurors who the party believes may be consciously or unconsciously biased against him or
her.‖ (People v. Jackson (1992) 10 Cal.App.4th 13, 17.) Peremptory challenges may
properly be used to remove prospective jurors believed to entertain specific bias, i.e., bias

19     The Attorney General concedes that the only circumstantial evidence of
constructive possession emanates from Gomez‘s testimony based on the prior incident
reports, and defendants‘ actions during the party. She says if we conclude that evidence
and the inferences that might be drawn therefrom run afoul of Sifuentes, there was
insufficient evidence to convict Rivas and Torres of violating section 12021.



                                               22.
regarding the particular case being tried or the parties or witnesses thereto. (Wheeler,
supra, 22 Cal.3d at p. 274.) ―There is a rebuttable presumption that a peremptory
challenge is being exercised properly, and the burden is on the opposing party to
demonstrate impermissible discrimination. [Citations.]‖ (People v. Bonilla (2007) 41
Cal.4th 313, 341.)
       However, ―‗[a] prosecutor‘s use of peremptory challenges to strike prospective
jurors on the basis of group bias — that is, bias against ―members of an identifiable group
distinguished on racial, religious, ethnic, or similar grounds‖ — violates the right of a
criminal defendant to trial by a jury drawn from a representative cross-section of the
community under article I, section 16 of the California Constitution. [Citations.] Such a
practice also violates the defendant‘s right to equal protection under the Fourteenth
Amendment to the United States Constitution. [Citations.]‘ [Citation.]‖ (People v. Bell
(2007) 40 Cal.4th 582, 596; see Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, 22
Cal.3d at pp. 276-277.)
       ―The United States Supreme Court has … reaffirmed that Batson states the
procedure and standard to be used by trial courts when motions challenging peremptory
strikes are made. ‗First, the defendant must make out a prima facie case ―by showing that
the totality of the relevant facts gives rise to an inference of discriminatory purpose.‖
[Citations.] Second, once the defendant has made out a prima facie case, the ―burden
shifts to the State to explain adequately the racial exclusion‖ by offering permissible
race-neutral justifications for the strikes. [Citations.] Third, ―[i]f a race-neutral
explanation is tendered, the trial court must then decide … whether the opponent of the
strike has proved purposeful racial discrimination.‖ [Citation.]‘ [Citation.]‖ (People v.
Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California, supra, 545 U.S. 162,
168.) The California Supreme Court has ―endorsed the same three-part structure of proof
for state constitutional claims. [Citations.]‖ (People v. Bell, supra, 40 Cal.4th at p. 596,
see Wheeler, supra, 22 Cal.3d at pp. 280-282.)

                                              23.
       With these principles in mind, we turn to the case before us.
                                    Factual Background
       Rosa H., Debra R., and Linda B. were among the first 18 prospective jurors
examined during voir dire. They provided the following information in response to
questions from the court. Rosa H. related that she was a housewife with two children in
high school. When she lived in Los Angeles, she had a friend or friends whom the police
accused of being in a Hispanic gang. Rosa H. did not believe they were in a gang. She
had no feelings about gangs, and stated she could set aside what happened in Los Angeles
and judge the facts of this case solely on the evidence.
       Debra R. related that she worked in the receiving department of a shoe business
and had three children, all over age 18. Neither she nor anyone close to her had been the
victim of gang violence or accused of being in a gang, nor had she witnessed or
investigated a gang crime.20 She was convicted of misdemeanor trespassing five years
earlier, but felt she was treated fairly and it would not affect her ability to be fair to both
sides. In addition, her husband had gotten into a fight with his brother-in-law over 10
years earlier. He was charged with attempted murder, but after investigation, the charges
were dropped. She did not have any problem with law enforcement or the court system
as a result.
       Linda B. related that she was retired. Her three grandchildren were all in school.
Approximately 10 years earlier, her friend was assaulted, and the friend‘s car vandalized,
in what may have been a gang-related incident. Linda B. believed she could judge the
present case fairly and solely on the evidence presented. In addition, her nephew had
been stabbed in a street fight about 10 years earlier. Linda B. stated that nothing about

20     The gang-related information was initially obtained by means of a confidential
questionnaire filled out by each prospective juror. If a prospective juror answered any
question(s) affirmatively, the subject was then explored further out of the presence of the
other prospective jurors.



                                              24.
the incident would affect her ability to be fair to both sides. Her grandson was charged
with assault as a juvenile three years earlier. He was acquitted. Although she felt he was
fairly treated by law enforcement, she felt he was not fairly treated by the prosecuting
attorney. This took place in Kern County. She was positive she would not hold this
against the prosecutor in the present case.
       The prosecutor did not question any of these prospective jurors individually. He
used his first peremptory challenge to excuse Rosa H., and his second peremptory
challenge to excuse Debra R.
       After the prosecutor and defendants (acting jointly) had each excused three
prospective jurors, Rafaela O. and Aida S. were among those examined by the court.
Rafaela O. related that she was divorced and had two adult children. Although neither
she nor anyone close to her had been the victim of gang violence or accused of being in a
gang, nor had she witnessed or investigated a gang crime, her home and vehicles had
been broken into multiple times, and a relative of hers was stabbed almost 30 years
earlier. Sometimes she thought he had it coming to him, because he was ―one of those
kind of kids.‖ She stated that none of the incidents would have any bearing on how she
viewed this case, although she conceded that, if she had a chance to extend leniency to
the person who stabbed her relative because her relative deserved it, she ―[p]ossibly‖
would do so. In addition, her brother-in-law was arrested for selling narcotics and drug
use. She ―guess[ed]‖ he was fairly treated by law enforcement, explaining that she felt
they ―should have kept him longer.‖ The incident would not affect her ability to be fair
to both sides.
       Aida S. related that she was a registered nurse who did recovery room nursing. In
the course of her employment, she had seen a lot of gunshot and stab wounds. She stated
that if there was testimony about some sort of wound or injury, she would take the
evidence as it was presented and not second-guess what someone else did or how he or
she treated the problem. Neither she nor anyone close to her had been the victim of gang

                                              25.
violence or accused of being in a gang, nor had she witnessed or investigated a gang
crime.
         The prosecutor questioned Rafaela O., but not Aida S., individually. He used his
fourth peremptory challenge to excuse Linda B., his fifth peremptory challenge to excuse
Rafaela O., and his sixth peremptory challenge to excuse Aida S. After the defense
followed each of the prosecutor‘s strikes with a joint excusal, the prosecutor accepted the
panel as constituted at that time. The defense then jointly exercised another peremptory
challenge, after which seven more prospective jurors were called for questioning. Doris
O. was among this group, although she was not seated as one of the twelve in the jury
box.
         Doris O. related that she was a yard supervisor for the Wasco School District. She
was married, had four children, one of whom was still in high school, and six
grandchildren. According to her answers to the questions contained in the confidential
questionnaire, neither she nor anyone close to her had been the victim of gang violence or
accused of being in a gang, nor had she witnessed or investigated a gang crime. She
answered negatively when counsel for Rivas asked her if she believed she was a god.
She believed she paid attention to everything that had happened during trial to that point,
and she never ―started nodding.‖21 Counsel for Rivas continued to question Doris O. as
follows:

         ―Q: … [D]o you think that it is possible for that thing to fall off that – the
         emergency lighting fixture on that wall, to fall off in two minutes and kill
         Mr. (1776491?)

         ―A: No.

         ―Q: Okay. [¶] Is it likely that that‘s going to happen?


21    At one point during its voir dire, the trial court asked her if she was doing okay.
The reason for the inquiry is not apparent from the record.



                                               26.
―A: No.

―Q: But it is possible that it could happen, correct?

―A: Yes. I mean, yeah.

―Q: All right. Now, the Judge is going to tell you what the standard is that
he needs to meet in order to prove his case.

―A: Okay.

―Q: Now, if it was a civil case, it would be a preponderance of the
evidence. Fifty percent lean a little bit, and you get yourself a verdict,
right?

―A: Right.

―Q: If they wanted to take your kids away from you –

―A: Uh-huh.

―Q: -- it‘s clean and convincing evidence. It‘s a higher standard.

―A: Okay.

―Q: If you were a god, it goes beyond all doubt.

―A: Right.

―Q: Because God is all knowing.

―A: Right.

―Q: For criminal cases, beyond a reasonable doubt. The highest standard
in law.

―A: Okay.

―Q: You buy that?

―A: Yes.

―Q: Why?

―A: Because that‘s what the Judge will tell me.

―Q: And the Judge tells you anything that has to do with what?


                                      27.
       ―A: The law.

       ―Q: The law. [¶] Now, who decides what the facts are in this case?

       ―A: The Judge? Or no.

       ―Q: No. [¶] Let the record reflect I was nodding my head vigorously. [¶]
       No. You do that.

       ―A: I do that?

       ―Q: Yes. That‘s why we‘re picking 12 jurors.

       ―A: Okay.

       ―Q: You become the judges of fact. [¶] Do you understand that?

       ―A: Okay.

       ―Q: You have a problem with that?

       ―A: No.‖
       The prosecutor then questioned Doris. O. and asked whether she watched over
children when they went out on recess. She responded that she had been a yard
supervisor for 18 years at different schools in Wasco. Presently, the children were
kindergarten through sixth grade. When the prosecutor asked if she ever watched over
older children, ―like seventh, eighth grade, high school,‖ she responded that she had
before, but not high schoolers.
       After the parties passed for cause, the prosecutor accepted the panel of 12 jurors
four times. After the defense‘s next joint strike, Doris O. was moved into the jury box.
The prosecutor immediately excused her. Shortly after, court adjourned for the weekend.
       The following Monday morning, at the outset of the next court session, counsel
for Rivas brought a Batson/Wheeler motion on behalf of the defendants jointly on the
ground that six of the prosecutor‘s seven peremptory challenges were used against




                                            28.
women, of whom four (Doris O., Debra R., Rosa H., and Rafaela O.) were Hispanic
females.22 The trial court noted that the prosecutor had also excused a Hispanic male.
       After the trial court outlined the analytical steps of a Batson-Wheeler motion and a
brief summary of requirements of the first step, the trial court found the motion was
timely, and that a prima facie showing had been made. Accordingly, it asked the
prosecutor for an explanation of his strikes against females. This ensued:

              ―MR. LOUIE [prosecutor]: Okay.

              ―[Rafaela O.] stated she had a relative who was stabbed that had it
       coming to him.… [A]lthough every other person who I talked to about that
       said that that wouldn‘t be right and that‘s not something that they would
       consider, … she continued to maintain that belief. And that‘s the reason
       why I show [sic] her.

              ―[Doris O.] works with children, seventh and eighth graders, in
       Wasco. I know Wasco to be an area that has Hispanic gang populations,
       especially at that age group.

              ―She did mention that. She did mention something about seventh
       and eighth graders and kids being involved in that -- in that type of activity,
       which is the reason why I struck her.

              ―[Rosa H.] … stated that her friends were accused of being in a gang
       in L.A., a -- Hispanic gangs, and the police accused the friends of her
       wrongly of being in that gang. I think she might have some bias … against
       the police for accusing her and her friends of being in a gang when they
       really weren‘t.

              ―That was [Rosa H.]




22     Counsel for Rivas named Angela R. instead of Debra R. We assume he misspoke,
since Angela R. was excused for cause based on her answers concerning the confidential
questionnaire. (Apparently, there were three persons in the venire with the last name R.)
There is no indication in the record that the prosecutor or the court were given prior
notice of the motion.



                                             29.
       ―[Debra R.] had a misdemeanor conviction for trespassing. I also
noticed that she had … what looked to be a fairly large, yet faded, so it was
probably old, tattoo, of some flowers and roses around her left wrist.

        ―The main reason was because of the misdemeanor for trespassing
that I struck her.

       ―[Linda B.] stated … that her grandson was not fairly treated at
juvenile. Again, that shows some bias or prejudice against law
enforcement and the Court system. Although she, I do not believe, is
Hispanic.

       ―[Aida S.] is not Hispanic, either, but she is a nurse, and she has seen
gunshot wounds. Her information on gunshot wounds and how things …
such as that are treated and injuries involved with that, which is why I
struck her. [¶] … [¶]

     ―THE COURT: All right. Miss Kim [counsel for Coronado], any
comments?

       ―MS. KIM: No, Your Honor.

       ―THE COURT: Mr. Carter [counsel for Torres]?

       ―MR. CARTER: … [R]egarding [Aida S.], … I think the D.A.
himself went through a process of trying to say that she would ignore what
she knows and she would listen to the testimony on the stand. That she
would rely on what was presented to her on the stand, and she agreed with
that. [¶] … [¶]

       ―As to the trespass misdemeanor, I‘m not quite sure why
misdemeanor trespass indicates bias. That … was on [Debra R.]…. [M]y
recollection was we had at least one or perhaps two males who also
mentioned they had misdemeanor trespass.… So I don‘t recall exactly
what happened to them along the way, but it doesn‘t seem to me that
misdemeanor trespasses in the past is any reason to show bias on [Debra
R.‘s] part.

       ―… I was unclear as to [Rafaela O.]. Now, she was the one that had
the stabbed relative, and she felt he might have deserved it. I‘m not sure
how that bias is [sic] the -- the defense in this case.

       ―As to [Doris O.], I believe she had indicated she mostly dealt with
the younger groups of children; that she had, in the past, done some junior
high. I believe when she indicated that‘s when they mostly got into --


                                     30.
started being approached by the gangs and that becoming a problem. But
she no longer -- but she dealt mostly with the young people. She may have
indicated there was -- they had started to be influenced by gangs in the later
years, but, again, just because she lives in Wasco, may have, and teaches in
school, I‘m not sure where the bias comes from. Just the fact that she
knows about gangs in Wasco, just I think the statement by the District
Attorney that he knows that there are gang problems in Wasco, I‘m not sure
that‘s sufficient cause to show that everybody from Wasco ought to be
excluded.

        ―As to … [Rosa H.], the grandmother who felt that her grandchild
was wrongly accused. Again, … since there was no discussion of how that
might influence her, … I don‘t recall myself … [Rosa H.‘s] perspective on
it, since I guess we did discuss it with her and it didn‘t rise to a level of
cause to excuse her.

         ―It seems to me there‘s really no indication of what that bias may be.
It‘s at this point, I guess, just speculation of a potential bias. I‘m not sure.

       ―But other than that, I have no further comments, Your Honor.

       ―THE COURT: Mr. Revelo [counsel for Rivas]?

       ―MR. REVELO: I believe that [Doris O.] said that she worked with
children that were not high schoolers and not seventh, eighth grade. So I
don‘t think … that‘s accurate.

      ―There was another individual, also female, that used to be a teacher
and now is a stay-at-home momma, and she was the one that said she was
working with seventh and eighth graders. That‘s my recollection. Maybe
I‘m wrong.

       ―As to [Debra R.], … trespass is such a diminimus [sic] offense …
in making no indication that she was upset about it. I don‘t think that‘s a
valid reason to throw someone out.

        ―And the issue of … tattoos, strangely surprising, given the fact that
it is such a common occurrence nowadays. Almost everybody now I know
has tattoos. A lot of people came in with jurors that had tattoos. So … I
can‘t really understand that.

       ―So with that, I submit.

      ―THE COURT: All right. The Court will note that there are four
Hispanics on the panel now. Mr. Louie has accepted the panel five times.


                                      31.
            ―Regarding the jurors, the Judge has evaluated Mr. Louie‘s
      explanation. I am satisfied with each explanation and finding the
      explanations sincere and genuine, and the motion is denied at this point.

           ―The Court is aware of the fact that Mr. Louie [the prosecutor] has
      bumped almost all of his peremptory challenges used on women. [Sic.]

             ―Four of those on Hispanic females. The Court is satisfied as to the
      record given by Mr. Louie as to [Rosa H., Debra R., Rafaela O., and Doris
      O.], those are the Hispanic females, as well as [Aida S. and Linda B.], who
      appeared to be Anglo females.

             ―The Court finds a valid reason for each one. [¶] … [¶]

             ―MR. LOUIE: Judge, could I also note for the record that there are
      … at least four females remaining on the panel, which I have accepted.

             ―THE COURT: Right.

            ―And I‘d also like the record to reflect that the defense has bumped
      two Hispanic females of their 12. Joint peremptory challenges.‖
      Coronado now says the prosecutor‘s explanation for excusing Doris O. failed to
satisfy Batson/Wheeler requirements. He claims the prosecutor‘s stated reasons were
based on his personal stereotyped views of Wasco having a prevalent Hispanic gang
population, especially in the seventh and eighth grade age group — a legally
impermissible racial stereotype — rather than the prospective juror‘s individual
characteristics, and that Doris O‘s statement that seventh and eighth graders were
involved in Hispanic gang activity was contrary to the record and therefore pretextual.
                                        Analysis
      Step One
      In step one of the Batson/Wheeler analysis the trial court found the defense had
made a prima facie case of discrimination with respect to women. Women are a
cognizable group (People v. Panah (2005) 35 Cal.4th 395, 438; see J.E.B. v. Alabama ex
rel. T.B. (1994) 511 U.S. 127, 129, 130-131), as are (the California Supreme Court has
assumed) Hispanic-surnamed women (People v. Garceau (1993) 6 Cal.4th 140, 171,


                                           32.
disapproved on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118). A
defendant and prospective juror alleged to have been wrongly excused need not be
members of the same group in order for the defendant to complain. (Powers v. Ohio
(1991) 499 U.S. 400, 416.) As we assume substantial evidence supports the court‘s
determination (see People v. Silva (2001) 25 Cal.4th 345, 384 (Silva); People v. Alvarez
(1996) 14 Cal.4th 155, 197), we move to step two.
       Step Two
       At step two, the prosecutor must come forward with a group-neutral explanation
for each challenged excusal. (Silva, supra, 25 Cal.4th at p. 384.) ―In evaluating the race
[or gender] neutrality of an attorney‘s explanation, a court must determine whether,
assuming the proffered reasons for the peremptory challenges are true, the challenges
violate the Equal Protection Clause as a matter of law.… [¶] A neutral explanation in the
context of our analysis here means an explanation based on something other than the race
[or gender] of the juror. At this step of the inquiry, the issue is the facial validity of the
prosecutor‘s explanation. Unless a discriminatory intent is inherent in the prosecutor‘s
explanation, the reason offered will be deemed race [or gender] neutral.‖ (Hernandez v.
New York (1991) 500 U.S. 352, 359-360 (plur. opn. of Kennedy, J.).) At this step, the
explanation need not be persuasive, or even plausible. (Purkett v. Elem (1995) 514 U.S.
765, 767-768.)
       Whether the prosecutor has offered a group-neutral reason for his or her
challenges is a question of law subject to our independent review. (People v. Alvarez,
supra, 14 Cal.4th at p. 198, fn. 9; Paulino v. Harrison (9th Cir. 2008) 542 F.3d 692, 699.)
Assuming the prosecutor‘s stated reasons for excusing Doris O. were true, his challenge
to her did not violate the equal protection as a matter of law. Although the prosecutor
referred specifically to Hispanic gangs, we do not find that to be indicative of an inherent
discriminatory intent, given that he expected the evidence to show Hispanic gangs were
involved in the case being tried.

                                              33.
       Citing U.S. v. Bishop (9th Cir. 1992) 959 F.2d 820, overruled on another ground in
U.S. v. Nevils (9th Cir. 2010) 598 F.3d 1158, 1167, Coronado appears to contend the
prosecutor‘s use of residence with respect to Doris O. was a pretext for race. Bishop is
neither controlling nor apposite (see People v. Williams (1997) 16 Cal.4th 153, 190-191),
and the extent to which it is still viable, in light of Purkett v. Elem, supra, 514 U.S. 765,
is suspect (see Boyde v. Brown (9th Cir. 2005) 404 F.3d 1159, 1171, fn. 10). In any
event, in Bishop the prosecutor explained his challenge of an African-American
prospective juror as based in part on the fact the prospective juror lived in a
predominantly low-income African-American neighborhood and accordingly was likely
to believe police ―‗pick on black people.‘‖ (Bishop, supra, 959 F.2d at p. 821.) Such
was not the use to which the prosecutor in the present case put Doris O.‘s employment —
not residence — in Wasco. Moreover, while finding the excuse before it did not
constitute a race-neutral explanation for the strike (id. at pp. 821-822), Bishop stated:
―This is not to say that residence never can constitute a legitimate reason for excluding a
juror .… On the contrary: What matters is not whether but how residence is used.
Where residence is utilized as a link connecting a specific juror to the facts of the case, a
prosecutor‘s explanation based on residence could rebut the prima facie showing.‖ (Id. at
p. 826.) The prosecutor here did not run afoul of Bishop.
       Step Three
       Accordingly, we move to step three. At this stage of the analysis, the trial court
must decide whether the opponent of the peremptory strike(s) has proved purposeful
discrimination by a preponderance of the evidence. (Purkett v. Elem, supra, 514 U.S. at
p. 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) The persuasiveness of
the proffered justification now becomes relevant (Johnson v. California, supra, 545 U.S.
at p. 171), as implausible or fantastic justifications will be found to be pretexts for
purposeful discrimination (Purkett v. Elem, supra, 514 U.S. at p. 768). ―What is required



                                              34.
are reasonably specific and neutral explanations that are related to the particular case
being tried.‖ (People v. Johnson (1989) 47 Cal.3d 1194, 1218.)
       Once the prosecutor comes forward with such an explanation, the trial court must
satisfy itself that the explanation is genuine. (People v. Hall (1983) 35 Cal.3d 161, 167.)
―In [this] process, the trial court must determine not only that a valid reason existed but
also that the reason actually prompted the prosecutor‘s exercise of the particular
peremptory challenge.‖ (People v. Fuentes (1991) 54 Cal.3d 707, 720.) ―This demands
of the trial judge a sincere and reasoned attempt to evaluate the prosecutor‘s explanation
in light of the circumstances of the case as then known, his knowledge of trial techniques,
and his observations of the manner in which the prosecutor has examined members of the
venire and has exercised challenges for cause or peremptorily, for ‗we rely on the good
judgment of the trial courts to distinguish bona fide reasons for such peremptories from
sham excuses belatedly contrived to avoid admitting acts of group discrimination.‘
[Citation.]‖ (People v. Hall, supra, 35 Cal.3d at pp. 167-168; see also People v. Lomax
(2010) 49 Cal.4th 530, 570-571.) ―‗[T]he rule in Batson provides an opportunity to the
prosecutor to give the reason for striking the juror, and it requires the judge to assess the
plausibility of that reason in light of all evidence with a bearing on it.‘ [Citation.]‖
(People v. McKinzie (2012) 54 Cal.4th 1302, 1320-1321.)
       ―When a trial court has made a sincere and reasoned effort to evaluate each of the
stated reasons for a challenge to a particular juror, we accord great deference to its ruling,
reviewing it under the substantial evidence standard. [Citations.]‖ (People v. Jurado
(2006) 38 Cal.4th 72, 104-105; accord, People v. Lenix (2008) 44 Cal.4th 602, 627; see
Batson, supra, 476 U.S. at p. 98, fn. 21; Paulino v. Harrison, supra, 542 F.3d at p. 699.)
Deference does not, of course, ―imply abandonment or abdication of judicial review.‖
(Miller-El v. Cockrell (2003) 537 U.S. 322, 340.)
       Here, the prosecutor stated he excused Doris O. because she worked with seventh
and eighth graders in Wasco; he knew Wasco to be an area with Hispanic gang

                                              35.
populations especially at that age group; and that Doris O. mentioned something about
seventh and eighth graders being involved in that type of activity. In reality, although
Doris O. said she had watched over seventh or eighth grade children in the past, she
currently supervised kindergarten through sixth grade children. She was never asked,
nor did she say anything, about gangs or gang activity, let alone seventh and eighth
graders or children being involved in that type of activity. Thus the prosecutor‘s stated
reasons were, in part, unsupported by the record.23
       But further review of the record supports the conclusion that the prosecutor,
counsel for Torres and the trial court confused a portion of the prosecutor‘s statements
attributed to Doris O., with statements made by Primavera B., another prospective juror
questioned after Doris O. Primavera B. stated she had worked with seventh and eighth
grade students in the area and that they were subject to gang influence. When first
questioned by the trial court outside the presence of other prospective jurors, Primavera
B. stated that she was reading a book entitled ―The God Delusion.‖ She was then
questioned about an answer on her jury questionnaire in which she answered yes to the

23      The Attorney General asserts there is no way to know whether Doris O.‘s
confidential questionnaire would have supported the prosecutor‘s stated reasons, since
only the questionnaires from the seated panel and alternates were preserved. It is true
that the record on appeal does not contain Doris O.‘s questionnaire, which, as we have
stated, asked, inter alia, whether the prospective jurors or someone close to him or her
had been the victim of gang violence or accused of being in a gang, or whether the
prospective juror had witnessed or investigated a gang crime. With respect to the panel
of 80 prospective jurors of which Doris O. was a part, however, the trial court stated that
44 answered ―yes‖ to one or more of the questions, while 36 answered ―no.‖ The court
explained that those who answered ―yes‖ would be spoken to privately and individually,
while those who answered ―no‖ would not be. It then excused the 36 who answered ―no‖
and ordered them to return the following morning at 9:00, and read the names of those
who were released for the day because they were not going to be questioned individually.
Doris O.‘s name was one of those read. We thus know she gave negative answers to all
the questions contained in the questionnaire, and so can confidently surmise that nothing
about her questionnaire would have supported the prosecutor‘s stated reasons for
excusing her.



                                            36.
question of whether she had ever witnessed or investigated a gang crime. According to
Primavera B., she was in downtown Bakersfield several years earlier and was about a half
block from where a homicide occurred. She saw gunfire, but not the actual shooting, and
did not know what had happened in the case, other than what she had read in the
newspaper. Primavera B. thought it was a gang crime from ―what they were wearing as
they ran past me‖ and that the men were ―[p]robably Hispanic or white.‖
       Primavera B. then said she would have ―a bit of a hard time‖ being unbiased in the
present case, ―[n]ot because of that incident, but because I work with children and I see a
lot of the gang-life influence.‖ Primavera B. taught for a few years on the east side of
Bakersfield before becoming a stay-at-home mom. According to Primavera B., the gangs
targeted ―good kids … that have a future … [and] … took their futures away.‖ Primavera
B. stated that the ―Junior High. Seventh grade. Eighth grade‖ kids would ―come at the
beginning of the school year really excited about learning, and then they just kind of go
downhill.‖ When questioned by Coronado‘s counsel, Primavera B. stated that she had a
―really, really negative view of gangs‖ and that gangs ―are nothing but criminal activity.‖
Rivas counsel continued the questioning and Primavera B. explained that she grew up in
Delano where there was a lot of gang activity, especially in junior high. When
questioned by the prosecutor, Primavera B. stated that she thought she would be able to
consider only the evidence and follow the law. The trial court then again questioned her
and, after explaining the burden of proof, asked if she could be fair and impartial. She
said the thought she could.
       After telling Primavera B. to return the following morning, counsel for Torres
stated that the court had not offered him an opportunity to challenge her and that he
wanted the record to reflect that he would challenge her for cause. Both counsel for
Coronado and Rivas joined in the request. The prosecutor objected to the challenge for
cause stating that ―everyone in the community doesn‘t like gangs,‖ and he thought
Primavera B. was articulating that, but that she had said she could consider only the

                                            37.
evidence and follow the law. The trial court stated that it would consider a case cited by
Coronado‘s counsel and would revisit the issue the following morning. The trial court
then addressed Torres‘ counsel and stated that it was somewhat confused because counsel
had first implied ―we were getting rid of people who knew something about gangs too
quickly … and I kept that in mind with [Primavera B.], and now you kind of say …
maybe we kept her too long.‖ The following morning, Primavera B. was removed for
cause.
         Coronado, and the dissent, rely on Silva, supra, 25 Cal.4th 345, in which the
California Supreme Court confronted a situation in which the prosecutor misrepresented
the record. During an ex parte hearing, the prosecutor said he challenged prospective
juror M. during the death qualification voir dire because M. indicated he ―‗would look for
other options‘‖ to the death penalty and described M. as ―‗an extremely aggressive person
and might hang the jury .…‘‖ (Id. at p. 376.) But the Silva court found that the transcript
of the death-qualification voir dire ―provides no support for either of these reasons.‖ (Id.
at p. 377.) The Silva court found that,

         ―when the prosecutor gave reasons that misrepresented the record of voir
         dire, the trial court erred in failing to point out inconsistencies and to ask
         probing questions. ‗The trial court has a duty to determine the credibility of
         the prosecutor‘s proffered explanations‘ (McClain v. Prunty (9th Cir. 2000)
         217 F.3d 1209, 1220), and it should be suspicious when presented with
         reasons that are unsupported or otherwise implausible (see Purkett v. Elem,
         supra, 514 U.S. 765, 768 [stating that at step three ‗implausible or fantastic
         justifications may (and probably will) be found to be pretexts for
         purposeful discrimination‘]; McClain v. Prunty, supra, at p. 1221 [‗Where
         the facts in the record are objectively contrary to the prosecutor‘s
         statements, serious questions about the legitimacy of a prosecutor‘s reasons
         for exercising peremptory challenges are raised.‘]).

         ― … Although an isolated mistake or misstatement that the trial court
         recognizes as such is generally insufficient to demonstrate discriminatory
         intent [citation], it is another matter altogether when, as here, the record of
         voir dire provides no support for the prosecutor‘s stated reasons for
         exercising a peremptory challenge and the trial court has failed to probe the


                                               38.
      issue [citations]. We find nothing in the trial court‘s remarks indicating it
      was aware of, or attached any significance to, the obvious gap between the
      prosecutor‘s claimed reasons for exercising a peremptory challenge against
      M. and the facts as disclosed by the transcripts of M.‘s voir dire responses.
      On this record, we are unable to conclude that the trial court met its
      obligations to make ‗a sincere and reasoned attempt to evaluate the
      prosecutor‘s explanation‘ [citation] and to clearly express its findings
      [citation].‖ (Silva, supra, 25 Cal.4th at p. 385.)
      The Silva court concluded that,

      ―the trial court‘s ultimate determination — that defendant failed to meet his
      burden of proving intentional discrimination with respect to the
      prosecutor‘s peremptory challenge of Prospective Juror M. — is
      unreasonable in light of the evidence of the voir dire proceedings.
      Although we generally ‗accord great deference to the trial court‘s ruling
      that a particular reason is genuine,‘ we do so only when the trial court has
      made a sincere and reasoned attempt to evaluate each stated reason as
      applied to each challenged juror. [Citations.] When the prosecutor‘s stated
      reasons are both inherently plausible and supported by the record, the trial
      court need not question the prosecutor or make detailed findings. But when
      the prosecutor‘s stated reasons are either unsupported by the record,
      inherently implausible, or both, more is required of the trial court than a
      global finding that the reasons appear sufficient. As to Prospective Juror
      M., both of the prosecutor‟s stated reasons were factually unsupported by
      the record. Because the trial court‘s ultimate finding is unsupported — at
      least as to Prospective Juror M. — we conclude that defendant was denied
      the right to a fair penalty trial in violation of the equal protection clause of
      the federal Constitution [citation] and was denied his right under the state
      Constitution to a trial by a jury drawn from a representative cross-section of
      the community [citation].‖ (emphasis added.) (Silva, supra, 25 Cal.4th at
      pp. 385-386.)
      In contrast, other cases have recognized that what Coronado here refers to as a
misrepresentation on the part of the prosecutor might be an ―honest mistake of fact‖ and
does not necessarily demonstrate impermissible group bias. (People v. Jones (2011) 51
Cal.4th 346, 366 (Jones); see also People v. Elliott (2012) 53 Cal.4th 535, 565.) ―The
purpose of a hearing on a Wheeler/Batson motion is not to test the prosecutor‘s memory
but to determine whether the reasons given are genuine and [group] neutral. ‗Faulty
memory, clerical errors, and similar conditions that might engender a ―mistake‖ … are


                                            39.
not necessarily associated with impermissible reliance on presumed group bias.‘
[Citation.] [An] ‗isolated mistake or misstatement‘ [citation] does not alone compel the
conclusion that [a] reason was not sincere.‖ (People v. Jones, supra, at p. 366.)
       The record reflects that the prosecutor‘s recollection and stated reasons for
challenging the other six jurors were accurate, after five days of voir dire and an
intervening weekend, and non-discriminatory. The record also reflects that the
prosecutor‘s statement that Doris O. worked with seventh and eighth graders was
generally accurate, since she said she had worked with that age group in the past. Also,
the fact that he knew Wasco to be an area with an Hispanic gang population is entirely
plausible based on his experience as a deputy district attorney in Kern County.
       Finally, as clearly supported by the record, the prosecutor was confused when he
said Doris O. mentioned something about seventh and eighth graders being involved in
gang activity. As outlined above, another juror, Primavera B., stated she worked with
seventh and eighth graders and they were subject to gang influences. Counsel for Torres
made a similar mistake and attributed these same comments to Doris O. Counsel for
Coronado, who is solely challenging the dismissal of Doris O. in this appeal, asked no
questions. Only counsel for Rivas pointed out that the prosecutor‘s references to seventh
and eighth grader‘s was attributed to Primavera B., not Doris O. However, he failed to
mention the prosecutor‘s mistaken reference to Hispanic gang activity.
       It is important to recognize a distinguishing fact between Silva and this case:
Nothing in the record supported the prosecutor‘s offered explanations for disqualifying
the Silva juror, whereas in this case, one of the prosecutor‘s reasons was race neutral
while the second reason was unsupported by the record, based on apparent mistake.
       In People v. Williams, supra, 16 Cal.4th 153 (for our purposes, Williams I), a
Batson/Wheeler motion challenged the excusal of a juror whom the prosecutor stated he
had excused ―‗in error.‘‖ Referring to his notes, the prosecutor explained that he got the



                                            40.
prospective juror ―‗confused‘‖ and made a ―‗flat out mistake.‘‖ (Id. at p. 188.) Our
Supreme Court found no violation of Batson/Wheeler, stating:

               ―First, a ‗mistake‘ is, at the very least, a ‗reason,‘ that is, a coherent
       explanation for the peremptory challenge. It is self-evidently possible for
       counsel to err when exercising peremptory challenges. Second, a genuine
       ‗mistake‘ is a race-neutral reason. Faulty memory, clerical errors, and
       similar conditions that might engender a ‗mistake of the type the prosecutor
       proffered to explain his peremptory challenge are not necessarily associated
       with impermissible reliance on presumed group bias. [Citations.] Third, a
       ‗mistake‘ may be a reason based on ‗specific bias‘ [citation] where, as
       appears to have been the case here, the prosecutor‘s error is one of
       erroneously believing, owing to clerical error, that a prospective juror had
       earlier been evaluated as specifically biased, when in fact she had not.
       Finally, a ‗mistake‘ is a reason ‗related to the particular case to be tried‘
       [citation] to the extent the possibility that genuine errors of this sort will be
       made exists in every case.‖ (Id. at pp. 188-189.)
       The Williams I court stated further that, while there was always the possibility that
counsel called upon to explain a questionable peremptory challenge will ―take refuge in a
disingenuous claim the challenge was mistakenly made[, …] [w]e give great deference to
the trial court‘s determination that the use of peremptory challenges was not for an
improper or class bias purpose. (Williams I, supra, 16 Cal.4th at p. 189.)
       In People v. Phillips (2007) 147 Cal.App.4th 810, 814 (Phillips), the prosecutor
gave a reason for excusing a juror, which the prosecutor later discovered and informed
the court was mistakenly based on information in the questionnaire of another juror with
the same last name. Again, the court found no violation of Batson/Wheeler. The
prosecutor fully explained the source of her mistake, and because it involved jury
questionnaires and prospective jurors with the same surnames, the error was subject to
objective verification. Moreover, the prosecutor brought her mistake to the court‘s
attention even though the court had already ruled in her favor, lending support to the
conclusion that the mistake was genuine. (Phillips, supra, at p. 819.)




                                              41.
       In Jones, supra, 51 Cal.4th 346, the defendant made a Batson/Wheeler motion to
the peremptory challenge to three African-American prospective jurors. The prosecutor
explained, as to prospective juror N.C., that he was concerned with an answer on N.C.‘s
questionnaire to the question whether he or a close friend or family member had been
accused of a crime. N.C. wrote that his son had been so accused. The prosecutor stated
that he thought the crime was attempted murder or murder. In fact, N.C. had stated on
the questionnaire only that his son had been accused of a crime and that it went to trial.
He left blank questions regarding what the crime was and what had happened. (Jones,
supra, at p. 358.) The prosecutor also explained that he was concerned with N.C.‘s body
language in response to several questions. When asked by the trial court whether the
prosecutor‘s primary concern was that N.C. had a family member charged with a serious
crime, the prosecutor responded that the ―‗conjunction‘‖ of these factors ―‗pushed [N.C.]
over on the scale.‘‖ (Ibid.) The trial court found the prosecutor‘s peremptory challenge
to N.C. and two other prospective jurors to be for nonracial and racially neutral purposes.
(Id. at p. 359.)
       On appeal, the defendant in Jones relied on Silva stating that the Supreme Court
should not defer to the trial court‘s ruling because it simply denied the motion without
making a ―sincere and reasoned attempt to evaluate the prosecutor‘s credibility.‖ (Jones,
supra, 51 Cal.4th at p. 361.) Our Supreme Court disagreed, stating that the court denied
the motion ―‗only after observing the relevant voir dire and listening to the prosecutor‘s
reasons supporting each strike and to any defense argument supporting the motions.
Nothing in the record suggests that the trial court either was unaware of its duty to
evaluate the credibility of the prosecutor‘s reasons or that it failed to fulfill that duty.‘‖
(Ibid., citing People v. Lewis (2008) 43 Cal.4th 415, 471.) The court in Jones asked the
prosecutor one question during his explanation. Defense counsel declined to comment
when invited to, ―thus suggesting he found the prosecutor credible.‖ (Jones, supra, at p.



                                               42.
361.) ―Under the circumstances, the court was not required to do more than what it did.‖
(Ibid.)
          While the court in Jones found that the record did not support the prosecutor‘s
statement that N.C.‘s relative was accused of attempted murder or murder, it stated:

          ―Although relevant, this circumstance is not dispositive. No reason appears
          to assume the prosecutor intentionally misstated the matter. He might have
          based what he thought on information he obtained outside the record. Or
          he may simply have misremembered the record. The prosecutor had to
          keep track of dozens of prospective jurors, thousands of pages of jury
          questionnaires, and several days of jury voir dire, and then he had to make
          his challenges in the heat of trial. He did not have the luxury of being able
          to doublecheck all the facts that appellate attorneys and reviewing courts
          have. Under the circumstances, it is quite plausible that he simply made an
          honest mistake of fact. Such a mistake would not show racial bias,
          especially given that an accurate statement (that N.C. wrote that his son had
          been accused of, and tried for, a crime but left the rest of the answer blank)
          would also have provided a race-neutral reason for the challenge.‖ (Jones,
          supra, 51 Cal.4th at p. 366.)
―The purpose of a hearing on a Wheeler/Batson motion is not to test the prosecutor‘s
memory but to determine whether the reasons given are genuine and race neutral.‖ (Id. at
p. 366.) The ―‗isolated mistake or misstatement‘‖ in Jones did not compel a conclusion
that the reason given was not sincere. (Ibid.)
          In the very recent case of People v. Williams (2013) 56 Cal.4th 630 (for our
purposes Williams II), the trial court denied defense counsel‘s three separate
Batson/Wheeler motions in connection with the prosecutor‘s use of peremptory
challenges against five African-American women prospective jurors. The prosecutor‘s
explanation of one challenge, to prospective juror R.J., was based on his impression that
R.J. would be unable to impose the death penalty because of her answers and the
demeanor and fashion in which she answered his questions. The trial court stated that it
did not recall the responses of this prospective juror. (Williams II, supra, at p. 658.) The




                                               43.
Williams II court found the peremptory challenge to R.J. to be race-neutral. (Id. at p.
659.)
        R.J.‘s written questionnaire generally expressed support for the death penalty, but
contained qualifying language that could be interpreted as showing equivocation or
hesitation. But the Williams II court found that the record also ―presents the possibility
that the prosecutor mistook R.J. for another prospective juror, D.J., also an African-
American woman, who happened to have the same last name.‖ (Williams II., supra, 56
Cal.4th at p. 659.)
        After defendant‘s conviction, defense counsel brought a motion for new trial, the
central claim of which was ineffective assistance of counsel, but which also included a
claim of Batson/Wheeler error. In the hearing on the Batson/Wheeler portion of the new
trial motion, the prosecutor incorporated all the statements he made during the
Batson/Wheeler motion and then provided a chronological narrative of the 16 peremptory
challenges he had used, providing the name and a description of each of the prospective
jurors he excused. In part, he described his 14th the challenge as being to D.J., ―‗a
married 39-year-old Black female,‘‖ which is borne out by her jury questionnaire. No
mention was made at this point to R.J., who according to her jury questionnaire was
―remarried‖ and 65 years old. And when the prosecutor then discussed the five
prospective jurors who were subjects of his Batson/Wheeler motions, he erroneously
named D.J. as the fifth African-American woman he excused, not R.J., and stated that he
noted her opposition on the questionnaire to the death penalty, which is supported by the
record. At the new trial motion hearing, the apparent discrepancy between the
prosecutor‘s discussion of D.J. as the fifth African-American woman juror excused rather
than R.J., as listed in the reporter‘s transcript, was not raised by defense counsel or
commented on by the trial court. (Williams II, supra, 56 Cal.4th at p. 660.)
        The Williams II court stated that, unlike Williams I, supra, 16 Cal.4th 153 and
Phillips, supra, 147 Cal.App.4th 810, the court and parties in Williams II were never

                                             44.
made aware of the prosecutor‘s possible error in excusing the prospective juror. ―This
difference, however, does not in itself affect the determination whether the prosecutor‘s
excusal was based on a race-neutral reason. The information disclosed at the new trial
motion hearing strongly supports the race-neutral reason the prosecutor gave at the time
of the motion – hesitancy to impose the death penalty. Therefore, assuming that the
prosecutor mistakenly excused R.J. because he thought she was D.J., there was no
violation of Batson/Wheeler.‖ (Williams II, supra, 56 Cal.4th at p. 661.)
       Here, unlike Silva and more akin to Williams I, Phillips, Jones, and Williams II,
we find that the prosecutor made an isolated mistake or misstatement. The prosecutor
struck Doris O. because, according to him, she currently worked with seventh and eighth
graders in Wasco, an area that he knew had a gang population especially in that age
group, and that Doris O. had mentioned that. The record shows that, although Doris O.
previously worked with seventh and eighth graders, she currently worked with younger
students; she made no statements about gang activity. When invited to comment,
Coronado‘s counsel declined, ―thus suggesting he found the prosecutor credible.‖ (Jones,
supra, 51 Cal.4th at p. 361.) The mistake made by the prosecutor was repeated by
Torres‘ counsel, who clarified that although Doris O. currently worked with ―younger
groups of children,‖ she had in the past ―done some junior high‖ and ―she indicated that‘s
when they mostly got into – started being approached by the gangs and that becoming a
problem.‖ Rivas‘ counsel stated that he believed Doris O. worked with children that
were not high schoolers or seventh and eighth graders, and he alluded to Primavera B.,
stating, ―another individual, also female, that used to be a teacher and now is a stay-at
home momma, and she was the one that said she was working with seventh and eighth
graders. That‘s my recollection. Maybe I‘m wrong.‖ But he made no mention of Doris
O.‘s statement about gang involvement.
       The prosecutor explained that his peremptory challenge as to Doris O. was based
on his impression that she had worked with seventh and eighth graders in Wasco, an area

                                             45.
that has a gang population, ―especially at that age group.‖ As we discussed earlier, this
statement, if true, supports a race-neutral reason on the part of the prosecutor for
challenging Doris O. - given that he expected the evidence to show Hispanic gangs were
involved in the case being tried. The record, however, supports the likelihood that the
prosecutor mistook Doris O. for another prospective juror, Primavera B.24 There is
nothing in the record to support any inference that the prosecutor intentionally misstated
anything he said supporting his reason for disqualifying Doris O. Like the prosecutor in
Jones, he had to keep track of dozens of jurors, many pages of juror questionnaires, five
days of voir dire, and then respond to an oral Batson/Wheeler motion. Again, like Jones,
―[u]nder the circumstances, it is quite plausible that he simply made an honest mistake of
fact. Such a mistake would not show racial bias ….‖ (Jones, supra, 51 Cal.4th at p.
366.)
        Finally, there is nothing in the record to indicate that the trial court did not
undertake ―a sincere and reasoned attempt to evaluate‖ each of the stated reasons for the
challenge to Doris O. (People v. Hall, supra, 35 Cal.3d at p. 167.) ―Based on our
review of the entire record, we conclude that this act of mistaken identity is the most
probable explanation of the events disclosed in the record and that there was no violation
of Batson/Wheeler.‖ (Williams II, supra, 56 Cal.4th at p. 659.)
     III. CALCRIM No. 600
        Defendants were charged with a single count of attempted murder. René Serrano
was the named victim. The evidence adduced at trial showed that only one shot was
fired. Although there were a number of people in the area when the shot was fired,

24    We note also that the topic of God was part of the questioning of both Doris O.
(when asking by Rivas‘s counsel if she believed she was ―a god‖ and counsel then
equated a ―beyond all doubt‖ standard with God) and Primavera B. (when she stated she
was reading a book entitled ―The God Delusion‖). These referenced to God may have
added to the confusion between these two prospective jurors.



                                               46.
Coronado did not fire indiscriminately, but rather pointed the gun directly at René and
fired a single shot into his midsection.
       The trial court instructed the jury on attempted murder in the language of
CALCRIM No. 600, to wit:

              ―Defendant[s] … are charged in Count 1 with attempted murder.

                ―To prove the defendants guilty of attempted murder, the People
       must prove that, one, the defendant took at least one direct, but ineffective
       step towards the killing of another person; and, two, the defendant intended
       to kill that person. [¶] … [¶]

              “A person may intend to kill a specific victim or victims and at the
       same time intend to kill anyone in a particular zone of harm or kill zone.

             “In order to convict the defendant of attempted murder of René
       Serrano, the People must prove that the defendant intended to kill René
       Serrano or intended to kill anyone within the kill zone.

               “If you have a reasonable doubt whether the defendant intended to
       kill René Serrano or intended to kill another by harming everyone in the
       kill zone, then you must find the defendant not guilty of the attempted
       murder of René Serrano.” (Italics added.)
       We agree with Coronado that the trial evidence did not support the giving of the
emphasized portion of CALCRIM No. 600.
       ―Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.‖ (People v. Lee
(2003) 31 Cal.4th 613, 623.) The doctrine of transferred intent does not apply to the
crime of attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 317.) ―A person
who intends to kill only one is guilty of the attempted (or completed) murder of that one
but not also of the attempted murder of others the person did not intend to kill.‖ (Ibid.)
       The kill zone theory ―addresses the question of whether a defendant charged with
the murder or attempted murder of an intended target can also be convicted of attempting
to murder other, nontargeted, persons.‖ (People v. Stone (2009) 46 Cal.4th 131, 138



                                            47.
(Stone).) Despite the inapplicability of the doctrine of transferred intent, a person who
shoots at a group of people may be found guilty of the attempted murder of everyone in
the group, even if he or she primarily targeted only one of them, if the person also,
concurrently, intended to kill others within what has been termed the ―‗kill zone.‘‖
(People v. Bland, supra, 28 Cal.4th at p. 329.) ―‗The intent is concurrent … when the
nature and scope of the attack, while directed at a primary victim, are such that we can
conclude the perpetrator intended to ensure harm to the primary victim by harming
everyone in that victim‘s vicinity.‘‖ (Ibid.)
       ―‗Where the means employed to commit the crime against a primary victim create
a zone of harm around that victim, the factfinder can reasonably infer that the defendant
intended that harm to all who are in the anticipated zone.‘‖ (People v. Bland, supra, 28
Cal.4th at p. 330; see People v. Vang (2001) 87 Cal.App.4th 554, 563-564.) Thus, ―a
shooter may be convicted of multiple counts of attempted murder on a ‗kill zone‘ theory
where the evidence establishes that the shooter used lethal force designed and intended to
kill everyone in an area around the targeted victim … as the means of accomplishing the
killing of that victim.‖ (People v. Smith (2005) 37 Cal.4th 733, 745-746.)
       Here, Coronado was charged with only a single count of attempted murder. He
was not charged with attempting to murder persons in the vicinity of his intended target
— René — and he did not use a means of force calculated to kill everyone in the group.
Under these circumstances, the kill zone theory was inapplicable, and the jury should not
have been instructed thereon. (People v. Perez (2010) 50 Cal.4th 222, 224-225; Stone,
supra, 46 Cal.4th at p. 138.)25

25      Since the ―concurrent intent [kill zone] theory is not a legal doctrine requiring
special jury instructions,‖ but rather ―is simply a reasonable inference the jury may draw
in a given case‖ (People v. Bland, supra, 28 Cal.4th at p. 331, fn. 6), an instruction
thereon is not required (Stone, supra, 46 Cal.4th at pp. 137-138). It is therefore
questionable whether a trial court can ever err by declining to give such an instruction.
(See People v. McCloud (2012) 211 Cal.App.4th 788, 802-803.)


                                                48.
       We next must determine whether the error in instructing the jury regarding the kill
zone theory of liability for attempted murder was prejudicial. (See Stone, supra, 46
Cal.4th at pp. 138-139 [error in giving kill zone theory instruction which did not fit facts
of case not necessarily prejudicial].)
       ―It is error to give an instruction which, while correctly stating a principle of law,
has no application to facts of the case.‖ (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
Such an error requires reversal only if ―it is reasonably probable the result would have
been more favorable to the defendant had the error not occurred. [Citation.]‖ (Id. at p.
1130.) ―[G]iving an irrelevant or inapplicable instruction is generally ‗―only a technical
error which does not constitute ground for reversal.‖‘ [Citation.]‖ (People v. Cross
(2008) 45 Cal.4th 58, 67.) ―In determining whether there was prejudice, the entire record
should be examined, including the facts and the instructions, the arguments of counsel,
any communications from the jury during deliberations, and the entire verdict. [Citation.]
Furthermore, instruction on an unsupported theory is prejudicial only if that theory
became the sole basis of the verdict of guilt; if the jury based its verdict on the valid
ground, or on both the valid and the invalid ground, there would be no prejudice, for
there would be a valid basis for the verdict.… [T]he appellate court should affirm the
judgment unless a review of the entire record affirmatively demonstrates a reasonable
probability that the jury in fact found the defendant guilty solely on the unsupported
theory.‖ (People v. Guiton, supra, 4 Cal.4th at p. 1130; accord People v. Perez (2005) 35
Cal.4th 1219, 1233.)
       Here, the jury was properly instructed on the elements required to convict
Coronado of attempted murder, included the non-italicized portion of CALCRIM No.
600, above, as well as CALCRIM No. 251, which instructed that, in order to find
Coronado guilty of attempted murder ―[h]e must not only intentionally commit the
prohibited act, but must do so with a specific intent or mental state.‖ The only count of
attempted murder in the information charged Coronado with the attempted murder of

                                              49.
René Serrano, and there was no argument from the prosecutor that Coronado intended to
kill anyone other than René. At one point, the prosecutor, in arguing intent to kill, argued
that Coronado shot René right ―in the kill zone,‖ referring to the vital portion of René‘s
body: ―[Coronado] pulled the trigger in the kill zone, and everyone knows that if you
shoot someone right there, there‘s a good change they‘re going to die .…‖ Although the
argument was anatomically valid (see People v. Houston (2012) 54 Cal.4th 1186, 1218
[act of shooting firearm toward victim at close range in manner that could have inflicted
mortal wound had shot been on target is sufficient to support inference of intent to kill]),
the prosecutor would have done better to eschew use of the term ―kill zone‖ in light of
the wording of CALCRIM No. 600. ―Kill zone,‖ as utilized in CALCRIM No. 600, has
nothing to do with the portion of the victim‘s body that was shot.
        But the instructions, combined with the evidence and prosecutor‘s closing
arguments, leave no doubt that the jury convicted Coronado for the attempted murder of
René based on his intent to kill René, and not the ―concurrent intent‖ or ―kill zone‖
theory. In addition, the ―kill zone‖ instruction did not undermine Coronado‘s defense
that he was not the shooter or that, if he was, he shot René in self-defense or the act of
defending another. And nothing in the record establishes the jury relied on the kill zone
theory. Because there is no ―affirmative indication in the record‖ that the jury based its
verdict on the kill zone theory, the error in instructing on the kill zone theory is harmless.
(People v. Guiton, supra, 4 Cal.4th at pp. 1128-1129.)
        Coronado makes an additional argument that the kill zone theory language, as
given in CALCRIM No. 600, was erroneous in that the instruction was disapproved by
our Supreme Court in Stone, supra, 46 Cal.4th 131. He argues the instruction‘s
ambiguous language permitted the jury to convict him of the attempted murder of René
under a kill zone theory so long as the shooter intended to ―harm‖ everyone in the kill
zone.



                                             50.
       In Stone, the Supreme Court noted the ambiguity in the CALCRIM No. 600
instruction‘s reference to the ―intent to kill ‗anyone‘ within the kill zone rather than
‗everyone,‘‖ and reference to an intent to ―harm‖ rather than ―kill‖ everyone in the kill
zone. (Stone, supra, 46 Cal.4th at p. 138, fn. 3.) But the Stone court did not conclude
these ambiguities rendered the CALCRIM No. 600 instruction erroneous. Instead, it
noted, ―[i]n context, a jury hearing about the intent to kill anyone within the kill zone
would probably interpret it as meaning the intent to kill any person who happens to be in
the kill zone, i.e., everyone in the kill zone.‖ (Stone, supra, at p. 138, fn. 3.) And
―[b]ecause the intent required for attempted murder is to kill rather than merely harm, it
would be better for the instruction to use the word ‗kill‘ consistently rather than the word
‗harm.‘‖ (Ibid.)26 We reach the same conclusion regarding the instruction given here.
     IV. PROSCECUTORIAL MISCONDUCT
       Coronado contends the prosecutor engaged in misconduct in during rebuttal
argument, resulting in a miscarriage of justice requiring reversal. Specifically, he claims
the prosecutor committed misconduct by vouching for his witnesses and by appealing to
the passions and prejudice of the jury. We disagree.
                                  Procedural Background
       In closing, Mr. Revelo, counsel for Rivas, argued that there was a lack of
sufficient evidence in this case to convict. At one point, he argued that, although at times
―institutions are corrupted by people who think they are doing the right thing, we have to
assume that what happened that night and the investigation that followed the shooting of
René Serrano took the direction that it took not because they wanted to frame these three



26      Following Stone, supra, 46 Cal.4th 131 the CALCRIM No. 600 kill zone theory
instruction was revised to substitute ―everyone‖ for ―anyone‖ and intent to ―kill‖ for
intent to ―harm.‖ (Judicial Council of Cal., Crim. Jury Instns. (2011) CALCRIM No.
600, p. 409.)



                                             51.
men because they hated them, but simply because at some point it became sort of the
only possible conclusion of what they were doing.‖
       In response, in rebuttal argument, the prosecutor made the following statement:

       ―Ladies and gentlemen, in my rebuttal I can only address the things that the
       defense counsel brought up, and I only intend to address the major topics
       that each defense counsel has addressed. [¶] … [¶] [W]e heard a lot from
       Mr. Revelo [counsel for Rivas] about the People, the government. What
       the People, the District Attorney‘s Office, and law enforcement does is not
       try to frame and convict innocent people. What we do is we try to protect
       and serve our community to prevent gang crimes so that when we go to the
       Valley Plaza -‖
At this point, counsel for Rivas objected on grounds that the prosecutor was vouching for
his own witnesses. The trial court overruled the objection and the prosecutor then said:

       ―What the District Attorney‘s Office, who represents the People of the State
       of California, who represents the People in our community, along with law
       enforcement, what we do is not try to frame innocent people and steam roll
       and convict people who are not guilty. [¶] What we do is we try to protect
       and serve by investigating, prosecuting dangerous crimes, whether they‘re
       gang crimes or other types of crimes, so that people in our community feel
       safe, can go to the mall, can go to the movies, can live their lives.‖
                               Applicable Law and Analysis
       Improper remarks by a prosecutor can so infect the trial with unfairness as to make
the resulting conviction a denial of due process. (People v. Earp (1999) 20 Cal.4th 826,
858; Darden v. Wainwright (1986) 477 U.S. 168, 181.) The defendant need only show
the prosecutor‘s misconduct prejudiced his right to a fair trial, regardless of whether the
misconduct was intentional or inadvertent. (People v. Hill (1998) 17 Cal.4th 800, 822.)
―Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves the use of deceptive or
reprehensible methods to attempt to persuade either the trial court or the jury.‖ (People v.
Morales (2001) 25 Cal.4th 34, 44.) When the claim focuses on comments made by the
prosecutor before the jury, the question is whether there is a reasonable likelihood the


                                             52.
jury construed or applied any complained-of remarks in an objectionable fashion.
(People v. Ayala (2000) 23 Cal.4th 225, 283-284; People v. Frye (1998) 18 Cal.4th 894,
970, overruled on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn.
22.)
       While a prosecutor may not misstate the law, a prosecutor is given wide latitude
during argument. Prosecutorial argument may be vigorous, as long as it amounts to fair
comment on the evidence, including reasonable inferences or deductions that may be
drawn from that evidence. During closing argument, counsel may state matters that are
not in evidence but that are common knowledge or illustrations drawn from common
experience, history, or literature. (People v. Hill, supra, 17 Cal.4th at pp. 819, 829.)
       A prosecutor is entitled to comment on the credibility of a witness based on
evidence adduced at trial. (People v. Thomas (1992) 2 Cal.4th 489, 529.) Prosecutorial
assurances regarding the honesty or reliability of a prosecution witness, supported in the
record, do not constitute improper ―‗vouching.‘‖ (People v. Medina (1995) 11 Cal.4th
694, 757.) But a prosecutor may not suggest he or she has information undisclosed to the
jury bearing on the issue of credibility, veracity or guilt. The danger in such remarks is
jurors will believe that some inculpatory evidence, known only to the prosecution, has
been withheld from them. (People v. Green (1980) 27 Cal.3d 1, 35; People v. Padilla
(1995) 11 Cal.4th 891, 945-946, overruled on another ground in People v. Hill, supra, 17
Cal.4th at p. 823, fn. 1.) Impermissible vouching occurs ―where the prosecutor places the
prestige of the government behind a witness through personal assurances of the witness‘s
veracity or suggests that information not presented to the jury supports the witness‘s
testimony.‖ (People v. Fierro (1991) 1 Cal.4th 173, 211.)
       It is also misconduct for a prosecutor to appeal to the passions and prejudice of the
jury. (People v. Mayfield (1997) 14 Cal.4th 668, 803.) An appeal to the passions and
prejudice of the jury is an appeal that is wholly irrelevant to any facts or issues in the
case. (Viereck v. U.S. (1943) 318 U.S. 236, 247.)

                                              53.
       The defendant has the burden of showing the existence of prosecutorial
misconduct. Whether prosecutorial misconduct warrants a mistrial is a determination
within the sound discretion of the trial court. (People v. Price (1991) 1 Cal.4th 324, 430.)
       In People v. Alvarado (2006) 141 Cal.App.4th 1577 (Alvarado), on which
Coronado relies, the prosecutor committed misconduct by vouching for witnesses when
she began her rebuttal by saying, ― … ‗I have a duty and I have taken an oath as a deputy
District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶]
The defendant charged is the person who did it. To insinuate, suggest, or to say outright
that I would risk my job, my profession, multiple police officers – I think one detective
was on what, 33 years, another one was 27, another one just starting his career – to
suggest that any of us would put our professional career on the line because this thug took
some kid‘s bike is offensive and it is preposterous.‘‖ (Id. at p. 1583, original italics.)
The court found misconduct even after considering that the comments may have been in
response to defense counsel‘s argument. (Id. at p. 1584.)
       Here, the prosecutor was attempting to counter defense counsel‘s inference that
the defendants were framed by a corrupt system of government. In doing so, the
prosecutor, unlike the prosecutor in Alvarado, did not personally vouch for anyone in the
government, stating only that ―what the People, the District Attorney‘s Office, and law
enforcement does is not try to frame and convict innocent people‖ and ―not try to …
steam roll and convict people who are not guilty.‖
       Nor do we find the prosecutor‘s statements were aimed at inciting the passions and
prejudices of the jury when he stated that, what ―we do‖, i.e., ―the People, the District
Attorney‘s Office, and law enforcement,‖ is to ―protect and serve by investigating,
prosecuting dangerous crimes, whether they‘re gang crimes or other types of crimes, so
that people in our community feel safe, can go to the mall, can go to the movies, can live
their lives.‖



                                              54.
       Coronado compares this to the circumstances in United States v. Weatherspoon
(9th Cir. 2005) 410 F.3d 1142, 1149 (Weatherspoon). He suggests the prosecutor by
these comments, in essence, urged the jury to protect community values and deter future
law breaking, thus diverting the jury from its role of objectively evaluating the facts and
evidence.
       But we find the facts of Weatherspoon distinguishable. In that case, the
prosecutor repeatedly, in the face of the court‘s admonitions, urged the jury to convict the
defendant in order to protect other individuals in the community. (Weatherspoon, supra,
410 F.3d at pp. 1149-1150.) The Weatherspoon court found the prosecutor‘s statements
were ―clearly designed to encourage the jury to enter a verdict on the basis of emotion
rather than fact.‖ (Id. at p. 1150.) Here, as noted earlier, the prosecutor, in rebuttal, was
merely attempting to explain the role of the government and law enforcement to counter
defense counsel‘s inference that the defendants were unjustly framed by a corrupt system
of government. He was not urging a conviction based on the premise that, in doing so,
the jury was protecting others or themselves in the community.
       In any event, there is no reasonable likelihood the jury construed or applied the
prosecutor‘s remarks in an objectionable fashion. (People v. Samayoa (1997) 15 Cal.4th
795, 841.) The evidence against Coronado was strong. (See Weatherspoon, supra, 410
F.3d at p. 1151 [when case is strong, likelihood that prosecutorial misconduct will affect
defendant‘s substantial rights is lessened].) The prosecutor‘s rebuttal argument did not
render Coronado‘s trial fundamentally unfair nor did it involve the use of deceptive or
reprehensible methods to attempt to persuade the jury. (People v. Ayala, supra, 23
Cal.4th at pp. 283-284.) Accordingly, the prosecutor‘s remarks did not amount to
prejudicial misconduct warranting reversal. (People v. Ervin (2000) 22 Cal.4th 48, 101.)
   V. SEVERANCE AND BIFURCATION OF GANG ISSUES
       Coronado contends next that the trial court abused its discretion and violated his
right to due process when it denied his motion to sever the gang participation count and

                                             55.
bifurcate the gang enhancement allegations from the remaining charges. We find no
abuse of discretion or due process violation.
       Prior to trial, Coronado moved to sever the trial of the gang participation count
and to bifurcate the gang enhancement allegations, contending that allowing such
evidence would prejudice his right to a fair trial on the remaining counts due to the
prejudicial nature of gang evidence. After a hearing on the issue, the trial court denied
the motion.
       Section 954 permits the joinder of ―two or more different offenses connected
together in their commission, … or two or more different offenses of the same class of
crimes or offenses.‖ The law favors joinder of counts because it promotes efficiency.
(People v. Myles (2012) 53 Cal.4th 1181, 1200.) Even when joinder is proper, the trial
court may, ―in the interests of justice and for good cause shown,‖ exercise its discretion
to order that different offenses or counts be tried separately. (§ 954; see People v.
Thomas (2012) 53 Cal.4th 771, 798.) ―‗―The burden is on the party seeking severance to
clearly establish that there is a substantial danger of prejudice requiring that the charges
be separately tried.‖ [Citation.]‘‖ (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)
       If the trial court denies a motion to sever, the ruling is reviewed on appeal for
abuse of discretion. (People v. Ramirez (2006) 39 Cal.4th 398, 439.) In determining
whether a trial court abused its discretion, we consider the record before the trial court
when it made it ruling. (People v. Thomas, supra, 53 Cal.4th at p. 798.) ―We consider
first whether the evidence of the two sets of offenses would have been cross-admissible if
the offenses had been separately tried. [Citation.] If the evidence would have been
cross-admissible, then joinder of the charges was not prejudicial.‖ (Ibid.)
       If the evidence is not cross-admissible, ―we next inquire ‗whether the benefits of
joinder were sufficiently substantial to outweigh the possible ―spill-over‖ effect of the
―other-crimes‖ evidence on the jury in its consideration of the evidence of [the]
defendant‘s guilt of each set of offenses.‘ [Citations.] We consider ‗[1] whether some of

                                             56.
the charges are likely to unusually inflame the jury against the defendant; [2] whether a
weak case has been joined with a strong case or another weak case so that the total
evidence may alter the outcome of some or all of the charges; and [3] whether one of the
charges is a capital offense, or the joinder of the charges converts the matter into a capital
case.‘ [Citation.] ‗We then balance the potential for prejudice to the defendant from a
joint trial against the countervailing benefits to the state.‘ [Citation.]‖ (People v.
Thomas, supra, 53 Cal.4th at pp. 798-799.)
       Finally, even when a trial court‘s denial of severance was not an abuse of
discretion at the time it was made, we must consider the evidence actually introduced at
trial to determine whether the joinder resulted in a gross unfairness amounting to a denial
of fair trial or due process. (People v. Thomas, supra, 53 Cal.4th at pp. 800-801; People
v. Myles, supra, 53 Cal.4th at p. 1202.)
       To convict Coronado of the gang participation count, the prosecution needed to
prove, among other elements, that he ―willfully promote[d], further[ed], or assist[ed] in
any felonious criminal conduct by members of [the criminal street] gang‖ in which he
actively participates. (§ 186.22, subd. (a).) In this case, the People sought to establish
this element by relying on the attempted murder and assault crime charged in this case.
Thus, if the gang participation count was severed from the other counts, the evidence
regarding the attack on René would need to be presented at both trials. Clearly, this
would defeat the goal of promoting efficiency through joinder.
       Moreover, evidence of Coronado‘s gang participation was relevant to show motive
and intent as to the attempted murder and assault counts. (See Williams I, supra, 16
Cal.4th at p. 193 [gang evidence is admissible if relevant to prove motive or intent].)
Because of the cross-admissibility of evidence of the attack in a trial of the gang
participation count and of the cross-admissibility of gang evidence in a trial of the
attempted murder and assault counts, the court did not abuse its discretion in denying the
motion for severance.

                                             57.
       In any event, reviewing the record in light of the evidence actually introduced at
trial, the joinder did not deprive Coronado of his constitutional right to a fair trial and due
process. To the extent the gang evidence was inflammatory, there is no reason to believe
the jury did not follow the court‘s instructions that each count charged is a separate crime
and they ―must consider each count separately,‖ especially in light of the fact that the jury
acquitted Coronado of the substantive gang count.
       In addition to severing the trial of different counts under section 954, a trial court
also has discretion under section 104427 to bifurcate the trial of a gang enhancement
allegation. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Bifurcation of the gang
enhancement may be warranted if evidence of the predicate offenses offered to establish
a pattern of criminal activity is ―unduly prejudicial‖ or other gang evidence is ―so
extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the
jury to convict regardless of the defendant‘s actual guilt.‖ (Ibid.)
       Having determined that the trial court did not err in refusing to sever the gang
participation count from the other counts, we can easily conclude there was no abuse of
discretion in denying the motion to bifurcate the trial of the gang enhancement
allegations. If the gang participation count had been severed from the other counts, it
would make sense to also bifurcate the trial of the gang allegations from the trial of the
attempted murder and assault counts. But the trial court denied the motion to sever the
trial of the substantive counts and, as explained above, that ruling was not an abuse of
discretion. Therefore, the gang evidence would be presented in the trial of the
substantive crimes. Because gang evidence that was admissible to establish the
enhancement allegations would already come in to prove the substantive gang


27     Section 1044 allows the court ―to control all proceedings during the trial … with a
view to the expeditious and effective ascertainment of the truth regarding the matters
involved.‖



                                              58.
participation count, there would be no reason to bifurcate the gang enhancement
allegation. We find no abuse of discretion in refusing to bifurcate the trial of the gang
enhancements. Furthermore, we find no prejudice to Coronado, especially in light of the
fact that the jury acquitted Coronado of all of the gang enhancement allegations.
        Because we disagree with Coronado‘s contention that the trial court erred when it
denied his motion to sever and bifurcate, we need not address his additional argument
that counsel was ineffective for ―fail[ing] to present to the court the enormous amount of
prejudicial gang evidence that would be introduced if [the] motion was denied.‖
Coronado has failed to show that he would have achieved a more favorable result had the
gang offense been severed and the gang enhancement allegations bifurcated. Thus,
Coronado cannot establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668,
687.)
   VI. PITCHESS MOTION
        Coronado contends that the trial court erred in denying his motion for discovery of
peace officer personnel records pursuant to Pitchess and requests that this court conduct
an independent in camera review of the records to determine if the trial court improperly
limited the scope of discoverable records. Respondent does not object to Coronado‘s
request.
        Prior to trial, Coronado filed a Pitchess motion. In it, he sought discovery of
police personnel records of Sheriff‘s Department Deputies Marvin Gomez and Andrew
Avila regarding any citizen complaints relating to dishonesty. The trial court conducted
an in camera review and determined that there were no disclosable materials found in the
materials produced.
        In Pitchess, supra, 11 Cal.3d 531, the California Supreme Court held that a
criminal defendant is entitled to discovery of officer personnel records if the information
contained in the records is relevant to the defendant‘s ability to defend against the charge.
Later enacted legislation implementing the court‘s rule permitting discovery (§§ 832.5,

                                             59.
832.7, 832.8; Evid. Code, §§ 1043-1047) balanced the accused‘s need for disclosure of
relevant information against a law enforcement officer‘s legitimate expectation of privacy
in her or her personnel records. The Legislature concluded that a defendant, by written
motion, may obtain information contained in a police officer‘s personnel records if it is
material to the facts of the case. (Evid. Code, § 1043, subd. (b)(3).) When presented
with such a motion, the court rules whether there is good cause for disclosure to the
defendant. (Evid. Code, §§ 1043, 1045.) If the court orders disclosure, the custodian of
the officer‘s records brings to court all the potentially relevant personnel records and, in
camera, the court determines whether any of the records are to be disclosed to the
defense. ―A trial court‘s ruling on a motion for access to law enforcement personnel
records is subject to review for abuse of discretion.‖ (People v. Hughes (2002) 27
Cal.4th 287, 330; see also Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079,
1086, citing People v. Samayoa, supra, 15 Cal.4th at p. 827.)
       We have received the sealed documents the trial court reviewed in conducting its
Pitchess analysis. Having obtained those documents, we note first that the trial court
complied with the procedural requirements of a Pitchess hearing. There was a court
reporter present, and the custodian of records was sworn prior to testifying. (People v.
Mooc (2001) 26 Cal.4th 1216, 1228, 1229, fn. 4; People v. White (2011) 191 Cal.App.4th
1333, 1339-1340.) The custodian of records complied with the requirement to bring all
the records and submit them for the court to review and determine which documents were
relevant. (People v. Wycoff (2008) 164 Cal.App.4th 410, 414-415.)
       We also have reviewed the sealed documents and find no reversible error with
regard to nondisclosure of those records. (People v. Hughes, supra, 27 Cal.4th at p. 330;
People v. Watson (1956) 46 Cal.2d 818, 836.)
   VII.   CUMULATIVE ERROR
       In conclusion, Coronado contends that the cumulative impact of all of the above
errors deprived him of a fair trial. We have either rejected Coronado‘s claims of error

                                             60.
and/or found that any errors, assumed or not, were not prejudicial. Viewed cumulatively,
we find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005)
35 Cal.4th 514, 560.)
                                     DISPOSITION
       The judgment in Kern County Superior Court case No. BF129529A (People v. Joe
Coronado, Jr.) is affirmed. The judgments in Kern County Superior Court case
Nos. BF129529B (People v. Hilario Torres) and BF129529C (People v. Allen Rivas) are
reversed and retrial is barred.


                                                                _____________________
                                                                             Franson, J.
I CONCUR:


 _____________________
Poochigian, Acting P.J.




                                           61.
Detjen, J., concurring and dissenting:
       I agree with the majority‘s reasoning and conclusions regarding all but defendant
Joe Coronado‘s Batson-Wheeler claim.1 With respect to that claim, I agree with the
majority‘s statement of the factual background and law explaining the three-step analysis
that must be undertaken, as well as its reasoning and conclusions with respect to steps
one and two. I respectfully dissent, however, from the majority‘s analysis of step three
and its conclusion no Batson-Wheeler violation occurred. On that issue, the majority
concludes that, although the prosecutor‘s stated reasons for exercising a peremptory
challenge against Doris O. were, ―in part, unsupported by the record,‖ the record ―clearly
support[s]‖ the conclusion the prosecutor was confused and made an isolated mistake or
misstatement and nothing in the record indicates the trial court did not make the required
effort to evaluate the prosecutor‘s reasons. (Maj. opn. ante, at pp. 36, 40, 45-46.) I
disagree. The prosecutor never indicated he was confused or mistaken, and I do not
agree that such a characterization can fairly be supported on this record. Additionally,
the record does not evidence a sincere and reasoned effort by the trial court to evaluate
the prosecutor‘s explanation.
       The prosecutor stated: ―[Doris O.] works with children, seventh and eighth
graders, in Wasco. I know Wasco to be an area that has Hispanic gang populations,
especially at that age group. [¶] She did mention that. She did mention something about
seventh and eighth graders and kids being involved in that — in that type of activity,
which is the reason why I struck her.‖ (Italics added.) What Doris O. actually said was
that, although she had watched over seventh- or eighth-grade children in the past, she
currently supervised kindergarten through sixth-grade children. She was never asked, nor


1      Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler). Wheeler has been overruled in part by Johnson v. California
(2005) 545 U.S. 162 (Johnson).
did she say anything, about gangs or gang activity, let alone seventh and eighth graders
or children being involved in that type of activity. The prosecutor‘s stated reasons were
unsupported by and — with respect to the reason he himself stated was why he struck her
— clearly and demonstrably contrary to the record.
       As the majority suggests, I do find People v. Silva (2001) 25 Cal.4th 345 (Silva)
dispositive. Here, as in Silva, there was no mere isolated mistake or misstatement. The
prosecutor did not, for example, simply misremember whether Doris O. currently or
previously worked with seventh or eighth graders. Rather, he ascribed to her statements
on a subject she never mentioned, involvement in gang activity. That subject was the
reason he said he excused her, and was wholly unsupported by the record. ―[W]hen
illegitimate grounds like race [or gender] are in issue, a prosecutor simply has got to state
his reasons as best he can and stand or fall on the plausibility of the reasons he gives.‖
(Miller-El v. Dretke (2005) 545 U.S. 231, 252, italics added.)
       The majority says the record ―clearly support[s]‖ its determination the prosecutor
confused the answers given by Doris O. with those given by another prospective juror,
Primavera B.2 (Maj. opn. ante, at p. 40.) I do not believe the record lends itself to such a
conclusion. First, the prosecutor never suggested he confused Doris O. with Primavera
B. Second, Primavera B. described herself as having a ―really, really negative view‖ of
gangs, and said she would probably be a bit more harsh if defendants had a gang
affiliation. She also thought she might need less evidence (presumably to convict) than
someone who did not know about gangs‘ lifestyles and ―what they do to initiate
children .…‖ Doris O. said nothing of the sort. Third, if the prosecutor truly was
concerned with prospective jurors who might have seen children become involved in the
gang lifestyle, it is difficult to see why he originally opposed the defense attempt to
excuse Primavera B., yet excused Doris O. at the first opportunity. A finding of
2      The record does not disclose whether Primavera B. was Hispanic.



                                              2
confusion simply does not adequately account for the extensive differences between the
answers given by the two prospective jurors, or account for the prosecutor‘s actions
toward each.
       I also find the notion the prosecutor was innocently confused highly questionable
for another reason. ―[T]he question of purposeful discrimination … involve[s] an
examination of all relevant circumstances.‖ (People v. Lenix (2008) 44 Cal.4th 602, 626;
accord, Miller-El v. Dretke, supra, 545 U.S. at p. 240.) In the present case, at least two of
the prosecutor‘s first three peremptory challenges were to Hispanic-surnamed
individuals, one of whom was a woman. The initial panel of prospective jurors, against
whom these three challenges were exercised, was dismissed when one of its members
said something that suggested two defendants had been in prison. After a new panel of
prospective jurors was called, the prosecutor proceeded to exercise another seven
peremptory challenges, of which six were to women, four of whom were Hispanic.3 At
this point, defendants made their Batson-Wheeler motion. The record does not reveal the
ethnicity or race of those who became trial jurors. It can be ascertained, however, that
three male trial jurors had, like Doris O., histories that involved interaction with children
of the age Doris O. supervised. One male juror had lived in Bakersfield his entire life
and was a substitute teacher whose wife was a teacher‘s aide; another male juror was
born and raised in Kern County and was a retired elementary school teacher who had
taught fourth through eighth grades; and a third male juror had lived in Shafter since
1963 and had three children who would all be going to high school the following year.
All three of these jurors were examined before the Batson-Wheeler motion. During its
ruling on the Batson-Wheeler motion, the trial court commented that the prosecutor used
―almost all of his peremptory challenges … on women.‖ After the motion was denied,
the prosecutor made a point of noting ―for the record that there are … at least four
3      It appears the male prospective juror who was excused was also Hispanic.



                                              3
females remaining on the panel, which I have accepted.‖ He then made only two more
peremptory challenges. While one was to a Hispanic male, neither was to a woman. The
prosecutor did not challenge a woman who worked with high-risk youths, ages 15
through 21, at a career services center. In order to enter the program, the youngsters had
to be teen parents, gang members or associates, members of a minority group, or
economically disadvantaged. This juror spoke to one particular youngster about the gang
lifestyle, although not in detail. The prosecutor did not challenge another woman who
was a teacher of students ages 18 to 24 who were going back to school to get a high
school diploma. Both women remained as trial jurors.
       In my view, the foregoing circumstances add to the justifiable suspicion
concerning the prosecutor‘s stated reasons for challenging Doris O. This record does not
support a conclusion of confusion, mistake, or misstatement.
       At step three of the Batson-Wheeler analysis, the trial court must make ―a sincere
and reasoned attempt to evaluate the prosecutor‘s explanation in light of the
circumstances of the case as then known, … for ‗we rely on the good judgment of the
trial courts to distinguish bona fide reasons for such peremptories from sham excuses
belatedly contrived to avoid admitting acts of group discrimination.‘ [Citation.]‖
(People v. Hall (1983) 35 Cal.3d 161, 167-168; see also People v. Lomax (2010) 49
Cal.4th 530, 570-571.) The trial court must assess the plausibility of the prosecutor‘s
given reason(s) ―‗in light of all evidence with a bearing on it.‘ [Citation.]‖ (People v.
McKinzie (2012) 54 Cal.4th 1302, 1320-1321.) ―[T]he trial court must determine not
only that a valid reason existed but also that the reason actually prompted the
prosecutor‘s exercise of the particular peremptory challenge.‖ (People v. Fuentes (1991)
54 Cal.3d 707, 720.) ―When a trial court has made a sincere and reasoned effort to
evaluate each of the stated reasons for a challenge to a particular juror, we accord great
deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]‖
(People v. Jurado (2006) 38 Cal.4th 72, 104-105; accord, People v. Lenix, supra, 44

                                             4
Cal.4th at p. 627; see Batson, supra, 476 U.S. at p. 98, fn. 21; Paulino v. Harrison (9th
Cir. 2008) 542 F.3d 692, 699.) This requirement of deference does not, however, mean
we abandon or abdicate the required judicial review. (Miller-El v. Cockrell (2003) 537
U.S. 322, 340.)
       Counsel for defendant Allen Rivas and counsel for defendant Hilario Torres made
comments to the trial court during the motion (maj. opn. ante, at p. 31) which suggested
the prosecutor‘s stated reasons for his challenge might not have had support in the record.
Yet the trial court did nothing to ascertain what Doris O. actually said. Doris O.‘s
responses were clearly documented and the trial court had readily consulted its notes, or
the reporter‘s transcript of voir dire, with respect to issues arising at other times during
jury selection — including, interestingly, a matter that came up with respect to the
challenge for cause to Primavera B. Under the circumstances, the trial court was
obligated to do more to assess the genuineness of those reasons than merely include them
in blanket, unquestioning findings. (See, e.g., Snyder v. Louisiana (2008) 552 U.S. 472,
479-485 [implausibility of prosecutor‘s explanations for excusing African-American
prospective juror was shown by circumstances apparent from record and comparison of
that individual with Caucasian jurors accepted by prosecutor; prosecutor had described
both proffered explanations as ―‗main concern[s]‘‖ and record did not show he would
have exercised challenge based on one stated reason alone]; Miller-El v. Dretke, supra,
545 U.S. at pp. 240-245 [numbers describing prosecutor‘s use of peremptory challenges
―remarkable‖ where prosecutor used such strikes to exclude 91 percent of eligible
African-American venire members; in addition, prosecutor mischaracterized African-
American prospective juror‘s answers; although prosecutor may have misunderstood, that
possibility was unlikely in view of how prosecutor proceeded and comparison of views of
Caucasians prosecutor accepted].) The trial court here failed to undertake the requisite
―‗sincere and reasoned attempt to evaluate the prosecutor‘s explanation.‘‖ (Silva, supra,



                                               5
25 Cal.4th at p. 385.) Its ruling should not, therefore, be deferred to. (Id. at pp. 385-
386.)
        The majority says the prosecutor‘s recollection and stated reasons for challenging
the other prospective jurors who were the subject of the Batson-Wheeler motion ―were
accurate, after five days of voir dire and an intervening weekend, and non-
discriminatory.‖ (Maj. opn. ante, at p. 40.) This may be so, but it does not excuse the
trial court from probing the reasons stated for the peremptory challenge to Doris O.
Because the trial court erred with respect to her, the absence of error concerning the other
prospective jurors who were the subject of the Batson-Wheeler motion is immaterial:
―The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity
[or gender] is an error of constitutional magnitude requiring reversal. [Citations.]‖
(Silva, supra, 25 Cal.4th at p. 386.)
        The majority opinion points out that in Silva, nothing in the record supported the
prosecutor‘s stated reasons for the challenged peremptory strike, while here, ―one of the
prosecutor‘s reasons was race neutral while the second reason was unsupported by the
record.‖ (Maj. opn. ante, at p. 41.) In light of the totality of the relevant circumstances
shown by the record in this case, this is a distinction without a difference. ―The fact that
one or more of a prosecutor‘s justifications do not hold up under judicial scrutiny
militates against the sufficiency of a valid reason. [Citation.]‖ (McClain v. Prunty (9th
Cir. 2000) 217 F.3d 1209, 1221.)
        In People v. Alvarez (1996) 14 Cal.4th 155, the California Supreme Court found
the fact that one neutral explanation may have been without basis in the record did not
undermine the genuineness or sufficiency of the prosecutor‘s remaining neutral
explanations. (Id. at p. 198.) In that case, however, the trial court examined the record.
(Id. at p. 195.) The trial court did not do so here with respect to Doris O., even when
defense counsels‘ comments indicated the prosecutor‘s stated reason may not be accurate.
Had the trial court probed the prosecutor‘s stated reason for challenging Doris O., it is

                                              6
possible the prosecutor would have said he would have excused her simply because she
worked with children around the age that gangs start recruiting. Presumably, the trial
court‘s determination of credibility would then have been entitled to our deference. But
because the prosecutor ascribed to Doris O. statements she never made concerning the
core reason he gave for her excusal, the prosecutor‘s entire explanation is thrown into
question when considered in light of all the circumstances bearing on the point.
       I find the cases on which the majority relies to be readily distinguishable.
       In People v. Williams (1997) 16 Cal.4th 153, the prosecutor expressly stated he
excused a particular prospective juror ―‗in error.‘‖ (Id. at p. 188.) In the present case, the
prosecutor was never called upon to state whether he made a mistake, let alone to explain
the genesis of the purported error.
       In People v. Phillips (2007) 147 Cal.App.4th 810, the prosecutor stated, in
response to the defendant‘s Batson-Wheeler motion, that she excused one prospective
juror because he was a teacher at a religious school and it had been the prosecutor‘s
experience such jurors had trouble finding people guilty. The trial court accepted the
explanation. Later, however, the prosecutor realized she had accidentally relied on
information in the questionnaire of another juror with the same last name, and she
informed the court of her mistake. (Phillips, supra, at p. 814.) Here, as already noted,
the prosecutor never admitted making a mistake. If the prosecutor had truly confused
Doris O. with Primavera B., defense counsel‘s statements should have caused him at least
to wonder if he had made an error. Thus, we are not presented with a situation in which
an error is admitted by the prosecutor and the trial court is called upon to assess whether
the mistake was genuine.
       In People v. Jones (2011) 51 Cal.4th 346 (Jones), African-American prospective
juror N.C. revealed on his juror questionnaire that his son had been accused of a crime.
In response to a defense Batson-Wheeler motion, the prosecutor explained this concerned
him, especially when he saw N.C.‘s reaction when defense counsel talked about being

                                              7
falsely accused. The prosecutor mentioned that he thought N.C.‘s son had been accused
of attempted murder or murder. In reality, N.C. stated on the questionnaire only that his
son had been accused of a crime and that the case had gone to trial. (Jones, supra, at
pp. 357-358.) The state Supreme Court rejected the defendant‘s claim that, under Silva,
deference should not be accorded the trial court‘s ruling because, after hearing from the
prosecutor, it denied the motion without further discussion. (Jones, supra, 51 Cal.4th at
p. 361.) The high court found the statistical evidence ―not particularly troubling,‖ as the
prosecutor peremptorily challenged African-Americans ―at a rate only slightly higher
than their percentage on the jury.‖ (Id. at p. 362.) With respect to the prosecutor‘s
misstatement concerning the crime of which N.C.‘s son was accused, the Supreme Court
acknowledged the error, but stated:

       ―Although relevant, this circumstance is not dispositive. No reason appears
       to assume the prosecutor intentionally misstated the matter. He might have
       based what he thought on information he obtained outside the record. Or
       he may simply have misremembered the record. The prosecutor had to
       keep track of dozens of prospective jurors, thousands of pages of jury
       questionnaires, and several days of jury voir dire, and then he had to make
       his challenges in the heat of trial. He did not have the luxury of being able
       to doublecheck all the facts that appellate attorneys and reviewing courts
       have. Under the circumstances, it is quite plausible that he simply made an
       honest mistake of fact. Such a mistake would not show racial bias,
       especially given that an accurate statement (that N.C. wrote that his son had
       been accused of, and tried for, a crime but left the rest of the answer blank)
       would also have provided a race-neutral reason for the challenge.‖ (Id. at
       p. 366.)
       In Jones, the core reason stated by the prosecutor as indicating possible bias on
N.C.‘s part was that N.C.‘s son had been accused of a crime. That reason was inherently
plausible and supported by the record, and would have been no matter what the actual
charge(s) against the son. Thus, Jones fits squarely within the California Supreme
Court‘s longstanding rejection of an isolated mistake or misstatement as being enough to
compel the conclusion a reason was not sincere.



                                             8
       In the present case, by contrast, the core reason stated by the prosecutor as
indicating possible bias on Doris O.‘s part was her mentioning something about kids
being involved in gang-type activity. In fact, as I have previously emphasized and we
cannot ignore, Doris O. said absolutely nothing about gangs, and indeed was not even
questioned about them aside from the confidential questionnaire.4 Even if we assume the
prosecutor could rely on his own professed knowledge of Hispanic gang activity in
Wasco, it would be sheer speculation for us to assume Wasco is so riddled with Hispanic
gang activity that Doris O. likely had contact with it during her past work supervising
seventh or eighth graders. Under these circumstances, the prosecutor‘s stated reasons —
the only reasons we can look to at the third step of a Batson-Wheeler analysis (Jones,
supra, 51 Cal.4th at p. 365) — are neither inherently plausible nor supported by the
record. ―If the stated reason does not hold up, its pretextual significance does not fade
because a trial judge, or an appeals court, can imagine a reason that might not have been
shown up as false.‖ (Miller-El v. Dretke, supra, 545 U.S. at p. 252.)
       Jamerson v. Runnels (9th Cir. 2013) 713 F.3d 1218 [2013 U.S. App. LEXIS
8310], while persuasive rather than binding authority (People v. Santamaria (1994) 8
Cal.4th 903, 923), illustrates my point with respect to Jones, and also summarizes what
my research shows to be the current state of United States Supreme Court thinking on the
issue. In the course of its main discussion, the Jamerson court noted that the magistrate‘s
finding of discriminatory intent rested on additional grounds that were insufficient to
raise an inference of discriminatory motive. The Court of Appeals explained:

               ―[T]he magistrate judge faulted the prosecutor for ‗incorrectly
       stat[ing] that [Juror #0970] has ―brothers‖ serving time in prison, when she
       actually had said that ―a brother‖ had been in prison.‘

4       As for Doris O.‘s answers in the confidential questionnaire, there was nothing that
would have supported the prosecutor‘s stated reasons for excusing her. (Maj. opn. ante,
at p. 36, fn. 23.)



                                             9
              ―According to the Supreme Court in Miller-El [v. Dretke], the
       mischaracterization of a potential juror‘s testimony weighs against a
       prosecutor‘s credibility. [(Miller-El v. Dretke, supra, 545 U.S. at pp. 243-
       244.)] But as the Supreme Court clarified in Rice [v. Collins (2006) 546
       U.S. 333], ‗seizing on what can plausibly be viewed as an innocent
       transposition makes little headway toward the conclusion that the
       prosecutor‘s explanation was clearly not credible.‘ [(Rice v. Collins, supra,
       546 U.S. at p. 340.)]

               ―In these two cases, the Supreme Court has thus drawn a fine
       distinction between a prosecutor‘s false statement that creates a new basis
       for a strike that otherwise would not exist and a prosecutor‘s inaccurate
       statement that does nothing to change the basis for the strike. [(Compare
       Miller-El v. Dretke, supra, 545 U.S. at pp. 243-244 [claiming that a juror
       indicated he would not vote for the death penalty when the juror clearly
       specified that he would vote for it], with Rice [v. Collins], supra, 546 U.S.
       at p. 340 [miscounting the number of jurors who were dismissed based on
       their youth but correctly reporting that the challenged juror was youthful].)]
       In this case, the prosecutor‘s mistaken belief that Juror #0970 had ‗brothers
       serving time‘ rather than a brother who served time falls on the Rice side of
       the line. Whether or not the juror had one brother or two brothers
       incarcerated, the same justification for the strike remained — the juror
       might have an unfavorable view of the system based upon a family
       member‘s involvement in it. Thus, the prosecutor‘s misspeak offers no
       proof of discriminatory intent. [(See Rice v. Collins, supra, 546 U.S. at
       p. 340.)]‖ (Jamerson v. Runnels, supra, 713 F.3d at p. 1232, fn. 7 [2013
       U.S. App. LEXIS at pp. *34-*36, fn. 7].)
       The prosecutor‘s false statement that Doris O. mentioned children being involved
in gang activity created a basis for a peremptory challenge that otherwise would not have
existed. It is thus manifestly distinguishable from his misstatement that she currently
worked with seventh or eighth graders, which made no difference with respect to the
basis for the strike.
       The majority also relies on People v. Williams (2013) 56 Cal.4th 630 (Williams).
In that case, defense counsel brought three separate Batson-Wheeler motions in response
to the prosecutor‘s peremptory challenges against five African-American women
prospective jurors. (Williams, supra, at p. 649.) The third motion concerned the
prosecutor‘s excusal of R.J., which the prosecutor explained was because of his


                                            10
impression, which he formed from her answers, demeanor, and the manner in which she
answered, that she would not be able to impose the death penalty in any case. The trial
court, which did not recall R.J.‘s responses and had stopped taking notes by the time she
was questioned, accepted the prosecutor‘s explanation and denied the Batson-Wheeler
motion. (Williams, supra, at pp. 651-652.) The final composition of the jury was seven
Caucasians and five African-Americans, of whom four were male and one was female.
(Id. at p. 652.)
       On appeal, the defendant, relying primarily on Silva, contended the trial court
failed adequately to probe the prosecutor‘s explanations about the demeanors of the
prospective jurors, especially those as to whom the trial court did not take notes and had
no independent recollection. (Williams, supra, 56 Cal.4th at pp. 652-653.) Since the
prosecutor‘s stated race-neutral reason for the strikes — reluctance to impose the death
penalty — was not inherently implausible, the Supreme Court examined the record to
determine whether it supported the stated reason. (Id. at p. 653.) The court found such
support in R.J.‘s written questionnaire and in her statements on voir dire. It further noted
the prosecutor accepted three panels with R.J. on them, a fact that was raised during the
discussion of the Batson-Wheeler motion in the trial court and that, while not conclusive,
could indicate the prosecutor‘s good faith and was an appropriate factor for the trial judge
to consider. (Williams, supra, 56 Cal.4th at pp. 658-659.)
       While concluding the record supported the prosecutor‘s stated race-neutral reason
for challenging R.J., the high court majority observed the record also presented the
possibility the prosecutor mistook R.J. for another prospective juror, D.J., who was also
an African-American woman and who had the same last name. (Williams, supra, 56
Cal.4th at p. 659.) The court based this on the record of defense counsel‘s new trial
motion, which included a claim of Batson-Wheeler error. In the hearing on the motion,
the prosecutor provided a chronological narrative of his 16 peremptory challenges. He
listed his 14th challenge as being to D.J., whom he described as a married, 39-year-old

                                             11
African-American female. D.J.‘s juror questionnaire confirmed the accuracy of this
description. The prosecutor made no mention of R.J., whose questionnaire stated she was
―‗remarried‘‖ and 65 years old. This apparent discrepancy was not mentioned by defense
counsel or the trial court. (Williams, supra, at pp. 659-660.)
       The Supreme Court determined the record supported the prosecutor‘s
representations regarding D.J. and her reluctance to impose the death penalty. (Williams,
supra, 56 Cal.4th at pp. 660-661.) It acknowledged the trial court and parties were never
made aware of the prosecutor‘s possible error in excusing R.J. instead of D.J., but
concluded: ―This … does not in itself affect the determination whether the prosecutor‘s
excusal was based on a race-neutral reason. The information disclosed at the new trial
motion hearing strongly supports the race-neutral reason the prosecutor gave at the time
of the motion — hesitancy to impose the death penalty. Therefore, assuming that the
prosecutor mistakenly excused R.J. because he thought she was D.J., there was no
violation of Batson/Wheeler.‖ (Id. at p. 661.)
       In Williams, the record clearly suggested, and supported a fairly compelling
inference, that a genuine mistake occurred. Moreover, the prosecutor‘s stated race-
neutral reason for the strikes was supported by the record with respect to both R.J. and
D.J. Here, by contrast, there is simply no reasonable possibility the prosecutor genuinely
would have been concerned that someone giving Primavera B.‘s answers, and making the
statements she did, might be biased against his position or have some subconscious
sympathy toward defendants. If the prosecutor truly was concerned in that regard, he
would not have presented such vehement initial opposition to defendants‘ challenge to
Primavera B. for cause.
       In ruling on the defense motion in the present case, the trial court observed that the
prosecutor had passed the panel on five occasions. I do not believe this demonstrates
nondiscriminatory intent under the circumstances, since the prosecutor never passed the
panel with Doris O. in the box. (See People v. Motton (1985) 39 Cal.3d 596, 607-608.)

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Indeed, he struck her as soon as she was placed in a position to be on the jury as finally
constituted. In Williams, by contrast, the prosecutor accepted three panels with R.J. on
them. (Williams, supra, 56 Cal.4th at pp. 658-659.)
        Nor am I persuaded by the fact that, at the time the Batson-Wheeler motion was
made, there were apparently four Hispanics and four females on the panel, and the
defense had struck two Hispanic females with joint challenges. (See People v. Ward
(2005) 36 Cal.4th 186, 203.) The record does not show whether any Hispanic females
were on the panel at the time of the motion, or the composition of the jury as finally
constituted. A Batson-Wheeler violation ―does not require ‗systematic‘ discrimination
[citation] and is not negated simply because both sides have dismissed minority jurors or
because the final jury is ‗representative.‘‖ (People v. Arias (1996) 13 Cal.4th 92, 136-
137.)
        When the core reason given by a prosecutor for a challenged excusal lacks support
in the record, and the record reveals reasons beyond the misstatement (e.g., statistics, a
comparison of prospective jurors excused with trial jurors) that call into question the
genuineness of the prosecutor‘s stated reason(s), it suggests the prosecutor‘s explanation
is pretextual. ―The prosecution‘s proffer of [a] pretextual explanation naturally gives rise
to an inference of discriminatory intent. [Citations.]‖ (Snyder v. Louisiana, supra, 552
U.S. at p. 485.) ―When there is reason to believe that there is a racial [or gender-based]
motivation for the challenge, neither the trial courts nor we are bound to accept at face
value a list of neutral reasons that are either unsupported in the record or refuted by it.
Any other approach leaves Batson a dead letter.‖ (Johnson v. Vasquez (9th Cir. 1993) 3
F.3d 1327, 1331.)
        We cannot know whether the prosecutor‘s stated reasons for excusing Doris O.
were truly pretextual or the result of honest mistakes, because they are unsupported by
and contrary to the record, other circumstances call their genuineness into question, and
the trial court neglected its resultant duty to make ―‗a sincere and reasoned attempt to

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evaluate the prosecutor‘s explanation.‘‖ (Silva, supra, 25 Cal.4th at p. 385.) This being
the case, the trial court‘s decision to accept the prosecutor‘s reasons and deny the defense
motion are not entitled to deference on appeal (People v. Lenix, supra, 44 Cal.4th at
p. 614; Silva, supra, at pp. 385-386), and the omission leaves the inferences of pretext
and discriminatory intent unrebutted (see Snyder v. Louisiana, supra, 552 U.S. at p. 485).
       Nobody wants to see time and scarce judicial resources spent on a retrial of
someone who caused physical and emotional trauma to others, and who was convicted on
compelling evidence after an otherwise fair trial. Our duty, however, is to the law. We
must not lose sight of the fact that a defendant in a criminal case has ―the right to be tried
by a jury whose members are selected pursuant to non-discriminatory criteria‖ (Batson,
supra, 476 U.S. at pp. 85-86); moreover, ―discrimination in selection of jurors harms not
only the accused whose life or liberty they are summoned to try,‖ but ―[t]he harm …
extends beyond that inflicted on the defendant and the excluded juror to touch the entire
community.‖ (Id. at p. 87.)
       Because substantial evidence does not support the trial court‘s finding as to Doris
O., its ultimate determination, that Coronado failed to meet his burden of proving
intentional discrimination with respect to that prospective juror, cannot constitutionally
stand. (See Silva, supra, 25 Cal.4th at pp. 385-386.) ―When a trial court does ‗not satisfy
its Batson/Wheeler obligations, … the conviction … must be reversed.‘‖ (People v. Long
(2010) 189 Cal.App.4th 826, 843.)



                                                             _________________________
                                                                            DETJEN, J.




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