Filed 5/3/18; Opinion following rehearing
                                  CERTIFIED FOR PUBLICATION



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   THIRD APPELLATE DISTRICT
                                             (Yolo)
                                              ----




THE PEOPLE,                                                        C072881

                 Plaintiff and Respondent,               (Super. Ct. No. CRF120516)

        v.

BRADY DEE DOUGLAS,

                 Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Yolo County, Paul K.
Richardson, Judge. Reversed.

      Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant
and Appellant.

       Durie Tangri, Sonali D. Maitra, for Amici Curiae Equality California, Lambda
Legal, and the National Center for Lesbian Rights, on behalf of Defendant and Appellant.

       Albert J. Menaster, for Amicus Curiae Los Angeles County Public Defender’s
Office, on behalf of Defendant and Appellant.

      Xavier Becerra, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Kari Ricci
Mueller, Deputy Attorneys General, for Plaintiff and Respondent.


                                               1
       This case is about fairness and equality in our criminal justice system. When a
party exercises a peremptory challenge against a prospective juror for an invidious
reason, the fact that the party may also have had one or more legitimate reasons for
challenging that juror does not eliminate the taint to the process. We reject the
application in these circumstances of the so-called “mixed motive” or “dual motive”
analysis, which arose in employment discrimination cases as a way for defendant-
employers to show that they would have taken an adverse action against a plaintiff-
employee whether or not an impermissible factor also animated the employment decision.
We hold it is not appropriate to use that test when considering the remedy for invidious
discrimination in jury selection, which should be free of any bias.
                                    INTRODUCTION
       After defendant Brady Dee Douglas’s former boyfriend, a male prostitute, told
him victim Jeffrey B. had shorted him money following a prearranged sexual encounter,
defendant and codefendant Clifton Damarcus Sharpe tracked down Jeffrey and demanded
payment. During a high-speed freeway chase, defendant pointed a gun at Jeffrey and
shot at his car several times.
       A jury found defendant guilty of attempted second degree robbery, assault with a
semiautomatic firearm, shooting at an occupied vehicle, exhibiting a firearm against a
person in a vehicle, and carrying a loaded firearm with intent to commit a felony, and
found true certain firearm enhancements. (Pen. Code, §§ 664/211, 245, subd. (b), 246,
417.3, 12022, subd. (a)(1), 12022.5, subd. (a); former § 12023, subd. (a).) The trial court
sentenced defendant to prison for six years.1
       On appeal, defendant contends the trial court erred in denying his Batson/Wheeler
motion after the prosecutor peremptorily excused the only two openly gay prospective



1 We previously dismissed codefendant Sharpe’s separate appeal for failure to file a
brief. (People v. Sharpe (Feb. 7, 2013; C071639) [order of dismissal].)

                                                2
jurors. (See Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).) He also argues the trial court erroneously
instructed the jury with CALCRIM No. 460, the pattern jury instruction for attempt,
which he asserts is unconstitutionally vague and impermissibly creates a mandatory
presumption of intent.
       We initially rejected defendant’s instructional challenge, but found the trial court
did not properly evaluate defendant’s Batson/Wheeler motion. We ordered a remand for
the trial court to apply a mixed-motive analysis to the prosecutor’s proffered reasons to
determine whether those veniremen would have been challenged regardless of their
sexuality. We then granted defendant’s rehearing petition and obtained supplemental
briefing by the parties and by amici curiae.2
       We now reverse for a new trial before a jury uninfected by discrimination. In light
of this holding, we need not address defendant’s instructional challenge again.

                                    BACKGROUND
       An information jointly charged defendant and Sharpe with various counts.
       During jury selection, the prosecutor and defense attorneys asked the prospective
jurors questions about their feelings or perceptions about homosexuality. No one on the
venire responded that she or he would have a problem deciding the case based on the
facts. Two veniremen, J. and L., were openly homosexual and lived with their partners.
       J. had a doctorate in science, and was friends with a local deputy public defender.
They had had lunch the previous day, and J. had recently attended her baby shower. He
saw her about once a week, she had visited his home, and she had discussed her work
with him. She talked to J. about local deputy prosecutors and public defenders, but not



2We granted the applications of Equality California, Lambda Legal, and the National
Center for Lesbian Rights’ (collectively Equality California), and of the Los Angeles
County Public Defender’s Office (LA Public Defender) to appear as amici curiae.

                                                3
about the prosecutor in this case. She told J. “she would never go to the dark side,”
meaning become a prosecutor. J. said he could make a decision based on the facts of the
case. J. conceded he was biased against firearms and thought the Second Amendment
should be repealed, but said his personal views about firearms would not prevent him
from following the judge’s instructions. After the prosecutor probed the topic of firearms
further, J. said he had no other biases: “No, I think that’s about it, you know, based on
what I know about this case, that would be [the] only thing.” He was then reminded by
the prosecutor that he would need to examine “all the evidence together” and asked, “you
are comfortable with that only bias that you [sic] had indicated was the issue with the
second amendment . . . , correct?” J. answered: “Yes, that would be absolutely correct.”
(Italics added.) A short time later, the prosecutor exercised a peremptory challenge
against him.
       After seven other prospective jurors were questioned and some were challenged
by different sides, L. was questioned. He had graduated from high school and owned a
travel agency. He said there was “absolutely no reason why [he could not] be fair.”
       The prosecutor asked whether L. could listen to testimony from a witness who
visited a male prostitute and judge that person’s credibility fairly. L. said he “definitely”
could do so without prejudging the witness. L. responded “no” when asked whether he
believed that persons engaged in illegal activities deserved what they get. He said “yes”
when asked whether he could share his opinion about the facts of the case, work with
others in applying those facts to the law, and use common sense to reach a decision.
       When the prosecutor challenged L., codefendant Sharpe’s counsel made a Wheeler
motion, arguing the prosecutor systematically used peremptory challenges to excuse the




                                              4
only two openly gay men in the venire. Defendant’s counsel joined the motion. The trial
court “at this point” found sexuality was a protected category and considered the motion.3
       The prosecutor then gave his reasons for striking these two prospective jurors.
       The prosecutor said he challenged J. because of J.’s close relationship with a
public defender, particularly because she had discussed the personality traits of local
prosecutors with J. and told J. she considered prosecutors to be on “the dark side.”
       The prosecutor said he challenged L. based on demeanor, stating that when
defendant’s counsel got up, L. leaned forward and seemed more attentive, but when the
prosecutor spoke, L. leaned back and gave answers that were short and not descriptive.
       The prosecutor then added the following rationale about both men:

              “In addition, in a case in which the victim in the case is in a relationship
       and is not in a relationship with a female but is not out of the closet and actually
       was untruthful with the police about the extent of his relationship with a male
       prostitute, I think that that particular [persons’] testimony may be viewed with
       bias [by] those who are willing to be openly gay and not -- not lie about it and can
       be frank about it, and he would view that as a negative character trait, and an
       individual who attempts to maintain given whatever grave idea, sexuality he has,
       but is willing to lie about it.

              “So I think there is a number of reasons, both specific to the case that are
       sexuality neutral, not -- I’m not asserting [sic, conceding?] in any way that is an
       adequate basis for [a] Wheeler motion, but even given that I think there are
       [bases] not only in their reaction in court in answering questions, but also given
       the specific facts of this case.” (Italics added.)
       To this explanation, Sharpe’s counsel responded that “[u]nder that justification,
anyone who is openly gay” would automatically be challenged.
       The trial court denied the defense motion, questioning in passing whether a
Wheeler motion based on sexuality discrimination was appropriate.




3 Although the parties referred only to Wheeler, a Wheeler objection preserves a Batson
claim. (See People v. Lenix (2008) 44 Cal.4th 602, 610, fn. 5 (Lenix).)

                                             5
       Citing J.’s relationship with the public defender and her “dark side” comment
about prosecutors, the trial court found the prosecutor’s challenge to J. was justified. As
for L., the trial court accepted the prosecutor’s demeanor-based rationale for the
challenge. Because the trial court made no response to Sharpe’s counsel’s pointed
objection, we presume the trial court simply found the facially non-discriminatory
reasons were sufficient and had no need to address the effect of the last reason. In effect,
that was the rough equivalent to applying a mixed-motive analysis to the challenges.

                                       DISCUSSION

       Defendant contends the trial court erred in denying his Batson/Wheeler motion
because, in his view, the prosecutor impermissibly excused two openly gay jurors based
on unsupported assumptions predicated on their sexual orientation. We agree.
                                              I

                General Principles for Evaluating Peremptory Challenges

       Both the state and federal Constitutions prohibit using peremptory challenges to
remove prospective jurors based solely on group bias. (Wheeler, supra, 22 Cal.3d at
p. 272; Batson, supra, 476 U.S. at pp. 85-88.) “It is well settled that ‘[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.’ ” (People v. Hamilton (2009) 45 Cal.4th 863, 898 (Hamilton);
see Wheeler, at p. 272.) “Such a practice also violates the defendant’s right to equal
protection under the Fourteenth Amendment to the United States Constitution.”
(Hamilton, at p. 898.)
       Although the United States Supreme Court has yet to address whether Batson
extends to sexual orientation, the Ninth Circuit held in SmithKline Beecham Corp. v.


                                              6
Abbott Labs. (9th Cir. 2014) 740 F.3d 471, 484, that it does, relying heavily on the high
court’s decision in United States v. Windsor (2013) 570 U.S. 744 [186 L.Ed.2d 808],
which held that the Defense of Marriage Act’s definition of marriage as excluding same-
sex partners violated equal protection and due process. (See also Obergefell v. Hodges
(2015) 576 U.S. ___ [192 L.Ed.2d 609] [recognizing a federal constitutional right for
same-sex marriages]; In re Marriage Cases (2008) 43 Cal.4th 757, 840-8444 [sexual
orientation is a suspect classification for purposes of California’s equal protection
clause].) Our colleagues in the Fourth District have found that excluding homosexuals on
the basis of group bias violates the California Constitution. (See People v. Garcia (2000)
77 Cal.App.4th 1269, 1275, 1280-1281.) Like Garcia and SmithKline, we, too, find that
excluding prospective jurors solely on the basis of sexual orientation runs afoul of the
principles espoused in Batson and Wheeler.
       To determine whether a prosecutor impermissibly used peremptory challenges to
remove prospective jurors based on a group bias such as sexual orientation, courts engage
in a three-part analysis. (See Hamilton, supra, 45 Cal.4th at pp. 899-900.) A defendant
must first make a prima facie case by demonstrating that the facts give rise to an
inference of discriminatory purpose. (See People v. Cornwell (2005) 37 Cal.4th 50, 66,
disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) If
that showing is made, the burden next shifts to the prosecution to explain its challenge on
the basis of permissible, group-neutral justifications. (See Cornwell, at pp. 66-67.) If
such an explanation is offered, the trial court then decides whether purposeful group
discrimination occurred. (See Cornwell, at p. 67; Johnson v. California (2005) 545 U.S.
162, 168 [162 L.Ed.2d 129, 138].)



4 The practical holding of In re Marriage Cases, that same-sex marriage was legal in
California, was subject to a long series of events not necessary to describe here; what is
important for our purposes is the state equal protection holding, which was left intact.

                                              7
       In this case, because the prosecutor gave reasons for his peremptory challenges,
we proceed to the second and third steps to determine whether the trial court erred in
concluding that they were valid. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1106,
disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
       “ ‘We presume that a prosecutor uses peremptory challenges in a constitutional
manner and give great deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses.’ ” (Hamilton, supra, 45 Cal.4th at p. 901.) A prosecutor’s
justification, moreover, need not support a challenge for cause (see Batson, supra, 476
U.S. at p. 97), and even a trivial reason, a hunch, or an arbitrary exclusion, if genuine and
neutral, will suffice (see Hamilton, at p. 901).
       We review a trial court’s determination regarding the sufficiency of a prosecutor’s
justifications for exercising peremptory challenges with restraint. (See People v. Thomas
(2011) 51 Cal.4th 449, 474.) The trial court’s determination is a factual one, and so long
as the trial court makes a sincere and reasoned effort to evaluate the justifications offered,
its conclusions are entitled to deference on appeal when they are supported by substantial
evidence. (See Hamilton, supra, 45 Cal.4th at pp. 900-901; Thomas, at p. 474.) The
issue is whether the trial court finds the prosecutor’s explanation to be credible, based on
factors such as the reasonableness of the explanation, the prosecutor’s demeanor, and the
trial court’s own observations of the voir dire. (See Lenix, supra, 44 Cal.4th at p. 613.)
With these principles in mind, we turn to the specific challenges under review.
                                              II

                          The Peremptory Challenges in this Case

       We have no trouble upholding the trial court’s findings that the prosecutor had
facially valid reasons for challenging these jurors. J.’s relationship with a deputy public
defender who thought prosecutors worked for the “dark side” could trouble any
prosecutor, and L.’s terse answers and negative body language (something the trial court


                                              8
could observe but that we cannot second-guess on a cold transcript) could also give
reasonable cause for concern. (See Lenix, supra, 44 Cal.4th at p. 623 [perceived bias
against prosecution]; see also id. at p. 613 [“facial expressions, gestures, hunches”];
People v. Reynoso (2003) 31 Cal.4th 903, 924-925 [where prosecutor sees “the potential
juror glare at him, or smile at the defendant or defense counsel”].)
       But the prosecutor then proffered another reason applicable to both prospective
jurors. The prosecutor explained that because both of these jurors were openly gay, he
thought they might be biased against the closeted victim, the main witness.
       Defendant argues this additional reason is baldly discriminatory and no different
from a similar one rejected in Batson: A prosecutor cannot assume a prospective juror
would be more partial to a defendant of the same race. (Batson, supra, 476 U.S. at p. 97
[recognizing that the equal protection clause “forbids the States to strike black veniremen
on the assumption that they will be biased in a particular case simply because the
defendant is black”].) We agree.
       We acknowledge that a challenge based solely on a prospective juror’s
membership in a particular group is different from a challenge “ ‘which may find its roots
in part [in] the juror’s attitude about the justice system and about society which may be
[group] related.’ ” (Hamilton, supra 45 Cal.4th at pp. 901-902.) In Hamilton, for
example, our Supreme Court upheld a peremptory challenge where the prosecutor said
one of the reasons he struck a prospective juror was because he had “ ‘considerable
sympathy for Black people on trial’ and thought the justice system was unfair to Blacks.”
(Id. at p. 901.) In finding substantial evidence supported the challenge, the court
implicitly rejected the defendant’s argument that the reason was not race neutral but
rather based on race itself. (Id. at pp. 901-902.) The court found the juror’s responses to
several questions on a questionnaire indicated he was skeptical about the fair treatment of
Blacks by the criminal justice system, thus supporting the prosecutor’s concerns, even if
they were tangentially related to race. (Id. at p. 902.) Similarly, in People v. Martin

                                              9
(1998) 64 Cal.App.4th 378, the prosecutor struck a Jehovah’s Witness because, in his
experience, “ ‘they couldn’t judge anybody at all.’ ” (Id. at p. 381.) Although the
prospective juror “did not express actual reservations about her ability to deliberate,” the
court nevertheless found the “prosecutor’s perception that the juror’s religious views
might render her uncomfortable with sitting in judgment of a fellow human being was a
specific bias related to the individual juror’s suitability for jury service.” (Id. at p. 384.)
       Hernandez v. New York (1991) 500 U.S. 352 [114 L.Ed.2d 395] affirmed a finding
that a prosecutor’s reason for striking two Latino jurors was race-neutral and genuine; the
prosecutor had excused them because their demeanor and responses caused him to doubt
their ability to defer to the official translation of Spanish-language testimony anticipated
at trial. (Id. at pp. 356-357 (plur. opn.).) The fact such reasoning might
disproportionately impact prospective Latino jurors did not make it improper. (Id. at
pp. 361-363.) In a concurring opinion, Justice O’Connor, joined by Justice Scalia, aptly
observed that Batson “does not require that the [prosecutor’s] justification be unrelated to
race. Batson requires only that the prosecutor’s reason for striking a juror not be the
juror’s race.” (Id. at p. 375 (conc. opn. of O’Connor, J.).)
       Following this line of reasoning, we can certainly imagine a case where an openly
gay venireperson who expressed contempt for or distrust of closeted homosexuals could
properly be stricken, because the reason would not be their sexuality, but their inability to
fairly judge testimony of closeted homosexuals, simply because they have chosen to
remain closeted. But that is not what happened here.
       Both veniremen said they could be fair, and neither expressed concerns about
closeted homosexuals. The bias alleged by the prosecutor was a product of the
prosecutor’s impermissible group assumptions, unsupported by the record and based
solely on the two jurors’ sexuality. The prosecutor specifically asked the panel whether
“anybody [had] an automatic reaction where they would vote guilty or not guilty because
some of the people involved in this case, either witnesses or people who are accused are

                                               10
homosexual.” No one responded in the affirmative. Thus, this is not a case where a
challenge touching on homosexuality, but not based on it, is in play. The prosecutor gave
as a reason for his challenge his assumption that the only two openly gay veniremen
would look askance at the victim’s lifestyle simply because they were openly gay and he
was not. Whether intended or not, that rationale reflects invidious sexuality
discrimination that is not permissible.
                                             III
                            The Remedy for Invalid Challenges
       We must now consider the effect, if any, of the trial court’s finding that the
prosecutor’s other reasons were sufficient to continue with jury selection, or whether the
trial court erred by not implementing a remedy for the Batson/Wheeler violation.5
       Although many jurisdictions have considered whether to apply a per se, mixed-
motive, or substantial motivating factor approach in the face of an invalid challenge,
neither the United States Supreme Court nor our Supreme Court has done so. (See
Snyder v. Louisiana (2008) 552 U.S. 472, 485 [552 L.Ed.2d 175, 186] [not deciding
whether mixed-motive analysis applies in Batson context]; People v. Schmeck (2005)
37 Cal.4th 240, 276-277 [declining to address whether a mixed-motive analysis should be
used], overruled on other grounds by People v. McKinnon (2011) 52 Cal.4th 610, 637-
638.) Accordingly, we must decide which approach to adopt.
       Some jurisdictions, primarily federal, have adopted a mixed-motive or dual motive
analysis derived from non-Batson equal protection or statutory-based cases. (See e.g.,
Howard v. Senkowski (2d Cir. 1993) 986 F.2d 24, 26-27 & see esp. fns. 1 & 2 (Howard);



5 Normally a successful Wheeler motion requires dismissal of the panel and restarting
jury selection, but if the movant consents, a trial court may implement lesser remedies,
such as sanctioning the offending attorney or seating the improperly challenged juror(s).
(See People v. Mata (2013) 57 Cal.4th 178, 182-186; People v. Singh (2015)
234 Cal.App.4th 1319, 1327-1328.)

                                             11
Gattis, supra, 278 F.3d at pp. 232-235; Jones v. Plaster (4th Cir. 1995) 57 F.3d 417, 420-
422; United States v. Darden (8th Cir. 1995) 70 F.3d 1507, 1531-1532; Wallace v.
Morrison (11th Cir. 1996) 87 F.3d 1271, 1274-1275.) Under the mixed-motive approach,
“[o]nce the claimant has proven improper motivation, dual motivation analysis is
available to the person accused of discrimination to avoid liability by showing that the
same action would have been taken in the absence of the improper motivation that the
claimant has proven.” (Howard, at p. 27; see Gattis, at p. 233.) But phrased another
way, under the mixed-motive analysis, “the Court allows those accused of unlawful
discrimination to prevail, despite clear evidence of racially discriminatory motivation, if
they can show that the challenged decision would have been made even absent the
impermissible motivation, or, put another way, that the discriminatory motivation was not
a ‘but for’ cause of the challenged decision.” (Kesser v. Cambra (9th Cir. 2006) 465 F.3d
351, 372 (conc. opn. of Wardlaw, J.) (Kesser), italics added.)
       The Ninth Circuit has instead adopted a substantial motivating factor approach,
limiting its inquiry to “whether the prosecutor was ‘motivated in substantial part by
discriminatory intent.’ ” (Cook v. LaMarque (9th Cir. 2010) 593 F.3d 810, 814-815.)
Under this test, if a bad reason is given, it can be ignored so long as the prosecutor’s
motivation is not substantially driven by it. (Id. at p. 826 [“the prosecutor gave both
persuasive and unpersuasive justifications for his strikes. Even assuming the
unpersuasive grounds were actually pretext, we cannot conclude his strikes were
ultimately motivated in substantial part by race”].)
       Defendant and amicus curiae Equality California urge us to adopt the per se rule,
contending that when a party offers multiple rationales for a peremptory strike, only some
of which are permissible, the taint from the impermissible reason(s) mandates reversal.
The LA Public Defender urges us to adopt the Ninth Circuit’s substantial motivating
factor approach, arguing the per se rule may be too restrictive in some cases and the



                                             12
mixed-motive approach may be too permissive in others. The Attorney General urges us
to adopt the mixed-motive approach, if we must choose one.
       As indicated, both the substantial factor and mixed-motive approaches permit
strikes based in part on invalid reasons. In this case, the prosecutor admitted to striking
the only two gay veniremen known to be on the jury, expressly because they were known
to be gay. We endorse the following view, while acknowledging that it is not
precedential: “To excuse such prejudice when it does surface, on the ground that a
prosecutor can also articulate [valid] nonracial factors for his challenges, would be
absurd.” (Wilkerson v. Texas (1989) 493 U.S. 924, 928 [107 L.Ed.2d 272, 275]
(Marshall, J., dissenting from denial of certiorari).)
       The “mixed motive” concept arose in non-Batson contexts, such as in employment
discrimination lawsuits, where a defendant-employer seeks to show that the adverse
action would have been taken against the plaintiff-employee regardless of any racial or
other invidious animus. (See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle (1977)
429 U.S. 274, 287 [50 L.Ed.2d 471, 483-484] [district court should have determined
whether the board could show it would not have rehired a teacher who engaged in
constitutionally protected speech in the absence of the teacher’s protected conduct];
Kesser, supra, 465 F.3d at p. 373 [in non-Batson contexts, the high court “has
consistently and repeatedly applied mixed-motive analysis where both permissible and
impermissible motivations are present”]; Cox, The “Tainted Decision-Making
Approach”: A Solution for the Mixed Messages Batson Gets from Employment
Discrimination (2006) 56 Case W. Res. Law Rev. 769, 782-789 [describing the civil law
origin of mixed-motive analysis, and arguing it should not be extended to Batson error].)
       “[A]lthough the initial three-step framework of Batson does derive from Title VII
jurisprudence, the ‘but for’ causation requirement that has been applied in those contexts
[citations], is not appropriate in the distinct Batson context. The difficult task of
‘ferreting out discrimination’ would be made nearly impossible by a ‘but for’ causation

                                              13
requirement, which would require a court to engage in counterfactual reasoning, often
with only a sparse record to guide it. [Citation.]” (Cook v. LaMarque, supra, 593 F.3d at
p. 828 (conc. & dis. opn. of Hawkins, J.).) Further, the mixed-motive approach does not
translate well to a Batson situation where the question is not only whether a prospective
juror would have been challenged anyway, but also implicates systemic fairness.
       For this reason, many--if not most--of our sister state courts have rejected
application of a “mixed motive” or “dual motivation” analysis. (See, e.g., McCormick v.
State (Ind. 2004) 803 N.E.2d 1108, 1113 [“it is not appropriate to apply the dual
motivation analysis in the Batson context;” one biased “challenge tainted any
nondiscriminatory reasons”]; State v. Lucas (Ariz. App. 2001) 199 Ariz. 366, 369 [18
P.3d 160, 163] [“any consideration of a discriminatory factor directly conflicts with the
purpose of Batson and taints the entire jury selection process”]; Payton v. Kearse (1998)
329 S.C. 51, 59 [495 S.E.2d 205, 210] [“Once a discriminatory reason has been
uncovered -- either inherent or pretextual -- this reason taints the entire jury selection
procedure”]; Riley v. Commonwealth (1995) 21 Va.App. 330, 336 [464 S.E.2d 508, 510]
[gender bias; “The fact that the Commonwealth [also] used age to identify which women
to strike does not overcome the constitutional infirmity”]; Rector v. State (1994) 213
Ga.App. 450, 454 [444 S.E.2d 862, 865] [trial court erred in ruling a “purportedly race
neutral explanation cured the element of the stereotypical reasoning employed by the
State’s attorney”]; Ex parte Sockwell (Ala. 1995) 675 So.2d 38, 41; McCray v. State
(Ala. Crim.App. 1998) 738 So.2d 911, 914 [following Sockwell; “in Alabama, a race-
neutral reason . . . will not ‘cancel out’ a race-based reason”]; Strozier v. Clark (1992)
206 Ga.App. 85, 88 [424 S.E.2d 368, 371] [“ ‘Even though [appellee’s counsel] may
have given one racially neutral explanation, the racially motivated explanation “vitiates
the legitimacy of the entire (jury selection) procedure” ’ ”]; State v. King (Wisc.App.
1997) 215 Wis. 2d 295, 306-309 [572 N.W.2d 530, 535-536] [rejecting “dual motivation”
test]; U.S. v. Greene (C.M.A. 1993) 36 M.J. 274, 280-281 [reviewing federal cases and

                                              14
agreeing “with the untainted approach”]; see also Robinson v. U.S. (D.C. App. 2006) 890
A.2d 674, 679-681 [if racial bias is a “substantial part” of challenge, it is wrong despite
partially unbiased reasons]; cf. People v. Turner (2001) 90 Cal.App.4th 413, 421 [dis.
opn. of Ortega, J.; “I feel it is improper to use race as even a partial reason for exercising
a peremptory, even if there are myriad other valid grounds for excusing a juror”];
Guzman v. State (Tx. Crim.App. 2002) 85 S.W.2d 242, 256-258 [dis. opn. rejecting
mixed motive analysis]; (Kesser, supra, 465 F.3d at pp. 376-377 (conc. opn. of Berzon,
J.) [questioning mixed-motive test].)
       Thus, the per se approach--while not universally held--is well-grounded in the law.
       Further, Wheeler was based on independent state grounds--the right to a jury
composed of a representative cross-section of the community under article I, section 16
of our constitution. (Wheeler, supra, 22 Cal.3d at pp. 265-272.) Although our Supreme
Court has since followed high court decisions after Batson, this circumstance leads us to
consider the application of another independent ground: Our own due process clause
(Cal. Const., art. I, § 7, subd. (a)) has independent--and greater--force than its federal
analog: It protects the dignity interest in obtaining an untainted adjudication (see
Saleeby v. State Bar (1985) 39 Cal.3d 547, 563-565). As stated by our Supreme Court:

               “ ‘[E]ven in cases in which the decision-making procedure will not alter
       the outcome of governmental action, due process may nevertheless require that
       certain procedural protections be granted the individual in order to protect
       important dignitary values, or, in other words, “to ensure that the method of
       interaction itself is fair in terms of what are perceived as minimum standard of
       political accountability—of modes of interaction which express a collective
       judgment that human beings are important in their own right and that they must be
       treated with understanding, respect, and even compassion.” ’ ” (Today’s Fresh
       Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 213,
       quoting People v. Ramirez (1979) 25 Cal.3d 260, 267-268, first italics added,
       second in Today’s Fresh Start; see In re Vicks (2013) 56 Cal.4th 274, 310.)
       Finally, and connected to the previous point, although perfection is neither
required nor possible (see, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 1009


                                              15
[defendant “was entitled to a fair trial but not a perfect one”]), the judicial system must
not only reach correct results, it must maintain its own dignity, or as the point has been
phrased before: “ ‘ “Not only must justice be done, but it must appear to have been
done.” ’ ” (People v. Gordon (1991) 229 Cal.App.3d 1523, 1526-1527.) “Taints of
discriminatory bias in jury selection—actual or perceived—erode confidence in the
adjudicative process, undermining the public’s trust in courts.” (People v. Gutierrez
(2017) 2 Cal.5th 1150, 1154.) Indeed, Batson itself addresses this institutional concern:

              “The harm from discriminatory jury selection extends beyond that inflicted
       on the defendant and the excluded juror to touch the entire community. Selection
       procedures that purposefully exclude black persons from juries undermine public
       confidence in the fairness of our system of justice. [Citations.] Discrimination
       within the judicial system is most pernicious because it is ‘a stimulant to that race
       prejudice which is an impediment to securing to [black citizens] that equal justice
       which the law aims to secure to all others.’ ” (Batson, supra, 476 U.S. at pp. 87-
       88; see also Miller-El v. Dretke (2005) 545 U.S. 231, 238 [162 L.Ed.2d 196, 212]
       [“the very integrity of the courts is jeopardized when a prosecutor’s discrimination
       ‘invites cynicism respecting the jury’s neutrality,’ [citation], and undermines
       public confidence in adjudication”].)
       Although this case does not involve race-based discrimination in challenges, as in
Batson, the same concern for preserving the integrity--and perceived integrity--of the
judicial system is present.
       The remedy for the error in this case is reversal for an untainted trial.6




6 We use the term “prosecutorial error” rather than the at times misleading term
“prosecutorial misconduct,” because we are not concerned with the prosecutor’s culpable
mental state, but with the lawfulness of the reasons given for exercising the peremptory
challenges. (Cf. e.g., People v. Centeno (2014) 60 Cal.4th 659, 666-667.)

                                             16
                                   DISPOSITION

       The judgment is reversed.




                                                /s/
                                          Duarte, J.



I concur:



      /s/
Blease, Acting P. J.




                                     17
Hull, J.
       Defendant was tried before an impartial judge and found guilty beyond a
reasonable doubt by an unbiased jury while represented by competent counsel. Even so,
the majority mandates per se reversal of defendant’s convictions because the prosecutor
offered a “nonneutral” reason in addition to stating two facially valid reasons for
challenging two openly gay jurors during voir dire. (Maj. opn. at p. 15.) The majority
reaches this conclusion even though the record is devoid of any evidence showing the
nonneutral reason was determinative in striking the prospective jurors or that the two
facially valid reasons were unsupportable.
       In our analysis of this assertion of error, it is important to focus on what exactly
occurred in the trial court. The People did not strike the two jurors because they were
gay men. The People exercised peremptory challenges against these two prospective
jurors, in part, because of a perhaps unwarranted concern that the two prospective jurors
who had openly acknowledged their sexual orientation would be biased against the
People’s victim who apparently, until the events that unfolded leading to this prosecution,
had not openly acknowledged his sexual orientation.
       To put the issue before us further into perspective, given the prosecutor’s apparent
concerns regarding how jurors would view the victim of this crime, the prosecutor would
have been in fair territory during voir dire if the prosecutor, after noting for the
prospective jurors that the victim of this crime was a gay man who had not before openly
acknowledged his sexual orientation, had inquired of all the prospective jurors whether
there was any reason why this victim, and thus the prosecution, could not receive a fair
trial simply because the victim was a gay man, or because the victim had not
acknowledged his sexual orientation openly before the events leading to the commission
of this crime. Had the prosecution done so and had any of the prospective jurors
answered those questions in a way that legitimately placed into question whether that



                                               1
prospective juror could be fair and impartial to both sides in judging the facts of the case,
a valid challenge would have been the result.
       Put simply, the majority reverses the defendant’s conviction for a serious crime,
otherwise fairly obtained, because the prosecutor exercised a peremptory challenge that
may have been based solely on an unwarranted assumption concerning the views of
openly gay men.
       In any event, the per se test the majority adopts today misses a proper balance; the
prosecutor may well have legitimately stricken the two prospective jurors regardless of
their sexual orientation. The mixed motive approach, by contrast, strikes the proper
balance between protecting a defendant’s constitutional rights, preserving the public’s
confidence in the fairness of our system of justice, and recognizing the institutional
interest in the finality of judgments. As we originally concluded, I would adopt the
mixed motive approach whenever a party offers both neutral and nonneutral reasons for
exercising a peremptory strike, and I would remand the matter here for the trial court to
apply the mixed motive approach in the first instance.
       I therefore dissent.
       An argument can be made that there is no Batson/Wheeler violation here at all.
(See e.g., Hernandez v. New York (1991) 500 U.S. 352; People v. Hamilton (2009) 45
Cal.4th 863; People v. Martin (1998) 64 Cal.App.4th 378.) Batson/Wheeler, as this field
of jurisprudence has become known, is a nebulous area of the law. (Batson v. Kentucky
(1986) 476 U.S. 79 [90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258
(Batson/Wheeler).) Where the line is drawn between constitutionally legitimate informed
guesses about an individual juror’s mind set given that juror’s demographics and answers
during jury selection (a guess that drives nearly every peremptory challenge a trial lawyer
makes and a guess that has given rise to an industry predicting the mind set of given
jurors based on demographics) and unconstitutional discrimination in jury selection is
often unclear. One hopes for some added clarity in the future.

                                              2
       But the parties and amici and the majority have litigated and decided this matter
on the assumption that the Batson/Wheeler doctrine is here in play and I will address only
the proper remedy in this case.
       I note at this point the majority characterizes the trial court’s failure to address the
sexuality-related reason as the “rough equivalent” to applying a mixed motive analysis to
the challenges. (Maj. opn. at p. 6.) Not so. Because the trial court never considered the
sexuality-related reason for the challenge at all, it did not engage in the analysis required
by the mixed motive approach. That is, the court never placed the burden on the
prosecutor to show that the potential jurors would have been excused even had the
impermissible purpose not been considered; that is, put differently, that an impermissible
reason was not the determining factor in excusing the two jurors from the panel.
       The majority has “no trouble upholding the trial court’s findings that the
prosecutor had facially valid reasons for challenging” the two jurors (maj. opn. at p. 8),
but concludes that defendant’s convictions must be reversed nonetheless. The majority
does so for several reasons, none of which are convincing.
       First, as support for rejecting the mixed motive approach that we initially adopted,
the majority cites Wilkerson v. Texas (1989) 493 U.S. 924 [107 L.Ed.2d 272] (Marshall,
J., dissenting from denial of certiorari), in which the United States Supreme Court denied
certiorari over the dissent of Justice Marshall. (Maj. opn. at p. 13.) The prosecutor in
Wilkerson conceded that race was one of many factors in his peremptory strikes of
several black jurors, and Justice Marshall would have granted the petition to determine
whether a prosecutor’s exercise of peremptory challenges based in part on racial
considerations violates the Equal Protection Clause. (Id., supra, 493 U.S. at pp. 924-
925.) In his dissent, Justice Marshall argued that the mixed motive analysis was
inappropriate in the Batson context, and that excusing prejudice when it surfaces on the
ground that a prosecutor can also articulate neutral reasons for a strike would be
“absurd.” (Id. at pp. 926-928.)

                                               3
       The majority’s reliance on Wilkerson rests on shaky grounds. Statements
accompanying denials of certiorari have no binding or precedential value. As Justice
Stevens emphasized in an opinion respecting the denial of the petition for writ of
certiorari in Singleton v. C.I.R. (1978) 439 U.S. 940 [58 L.Ed.2d 335], all opinions
dissenting from the denial of certiorari are “totally unnecessary” and are “examples of the
purest form of dicta, since they have even less legal significance” than the Court’s order
denying certiorari which has no precedential significance at all. (Id. at pp. 944-945; see
also In re I.F. (2018) 20 Cal.App.5th 735, 764.) Justice Stevens further noted that such
opinions are also “potentially misleading.” (Singleton, at p. 945.) Because the Court
“provides no explanation of the reasons for denying certiorari, the dissenter’s arguments
in favor of a grant are not answered and therefore typically appear to be more persuasive
than most other opinions.” (Ibid.)
       Next, the majority rejects the mixed motive approach because, in the majority’s
view, it has been adopted only in nonBatson contexts such as employment discrimination
lawsuits. (Maj. opn. at p. 13.) But Batson itself states that, “[a] recurring question in
these [jury discrimination] cases, as in any case alleging a violation of the Equal
Protection Clause, was whether the defendant had met his burden of proving purposeful
discrimination on the part of the State.” (Batson, supra, 476 U.S. at p. 90; italics added.)
Thus, as the Second Circuit recognized in Howard v. Senkowski (2d Cir. 1993) 986 F.2d
24, 27 (Howard), Batson “plac[ed] the issue squarely within the tradition of equal
protection jurisprudence.”
       Batson, moreover, explicitly relied on the Court’s prior equal protection
jurisprudence as articulated in cases such as Village of Arlington Heights v. Metropolitan
Housing Development Corporation (1977) 429 U.S. 252, 271 [50 L.Ed.2d 450, 468]
(Arlington Heights). (See, e.g., Batson, supra, 476 U.S. at pp. 93-94.) There, the
plaintiffs had failed to carry their burden of showing that a racially discriminatory



                                              4
purpose was a substantial motivating factor in an agency’s decision to deny a rezoning
application. (Arlington Heights, at p. 271.)
       Arlington Heights expressly recognized the following: “[p]roof that the decision
by the Village was motivated in part by a racially discriminatory purpose would not
necessarily have required invalidation of the challenged decision. Such proof would,
however, have shifted to the Village the burden of establishing that the same decision
would have resulted even had the impermissible purpose not been considered. If this
were established, the complaining party in a case of this kind no longer fairly could
attribute the injury complained of to improper consideration of a discriminatory purpose.
In such circumstances, there would be no justification for judicial interference with the
challenged decision.” (Arlington Heights, supra, 429 U.S. at p. 270, fn. 21.) The high
Court was undoubtedly aware of its decision in Arlington Heights, including the mixed
motive analysis the opinion expressly sanctions, when favorably citing the opinion in
Batson. (Batson, supra, 476 U.S. at pp. 93-94.)
       And contrary to the majority’s implicit suggestion that the mixed motive approach
is better suited in the employment discrimination context rather than in the jury selection
context (maj. opn. at p. 13), the Supreme Court has applied the mixed motive approach in
other areas of similar constitutional magnitude to selecting an impartial jury.
       For example, in Hunter v. Underwood (1985) 471 U.S. 222, 228 [85 L.Ed.2d 222]
(Hunter), the Supreme Court applied a mixed motive analysis when determining the
constitutionality of a provision in the Alabama Constitution that disenfranchised persons
convicted of crimes involving moral turpitude. Evidence showed that although the law
was neutral on its face, applying equally to anyone convicted of one of the enumerated
crimes, the purpose of the law was to disenfranchise blacks. (Id. at pp. 227-229.)
       Notably, in Hunter the state argued that the existence of a permissible motive for
the state constitutional provision, the disenfranchisement of poor whites, trumped any
proof of a parallel impermissible motive of disenfranchising blacks. (Hunter, supra, 471

                                               5
U.S. at pp. 231-232.) Without deciding whether the intentional disenfranchisement of
poor whites would qualify as a “ ‘permissible motive,’ ” the court found that “where both
impermissible racial motivation and racially discriminatory impact are demonstrated,
Arlington Heights and Mt. Healthy [City Sch. Dist. Bd. of Educ. v. Doyle (1977) 429 U.S.
274, 287 [50 L.Ed.2d 471, 483-484] (Mt. Healthy)] supply the proper analysis.” (Id. at
p. 232.) An additional purpose to discriminate against poor whites, even if considered
permissible, “would not render nugatory the purpose to discriminate against all blacks,”
since the evidence showed the latter was the true motivation for the provision. (Ibid.)
       In a government by the people and for the people, the critical nature of the right to
vote is manifest. (Reynolds v. Sims (1964) 377 U.S. 533, 555 [12 L.Ed.2d 506, 523]
[“The right to vote freely for the candidate of one’s choice is of the essence of a
democratic society, and any restrictions on that right strike at the heart of representative
government”].) So, too, is the right to a trial by an impartial jury selected pursuant to
nondiscriminatory criteria. (Batson, supra, 476 U.S. at pp. 85-86.) The mixed motive
approach, relied upon by the Court in Hunter to protect the sacred right to vote, is equally
capable of protecting a defendant’s right to a fair trial by determining if an impermissible
motive was the determinative factor, or a “but for” cause, in exercising a peremptory
challenge even though other permissible motives were also present.
       I stress at this point that nothing in this record suggests or demonstrates that,
unlike the situation in Hunter, the prosecutor’s motivation in exercising these challenges
was to discriminate against gay men.
       In Mt. Healthy, supra, 429 U.S. 274 an untenured teacher brought an action for
reinstatement to his teaching position claiming that, in fact, he had been dismissed from
his teaching position for exercising his right to free speech.
       In its holding the Supreme Court set forth a portion of the district court’s findings:
       “The District Court made the following ‘conclusions’ on this aspect of the case:



                                              6
       “1) If a non-permissible reason, e.g., exercise of First Amendment rights, played a
substantial part in the decision not to renew - even in the face of other permissible
grounds - the decision may not stand (citations omitted).
       “2) A non-permissible reason did play a substantial part. That is clear from the
letter of the Superintendent immediately following the Board’s decision, which stated
two reasons - the one, the conversation with the radio station clearly protected by the
First Amendment. . . .
       “At the same time, though, [the District Court] stated that ‘(i)n fact, as this Court
sees it and finds, both the Board and the Superintendent were faced with a situation in
which there did exist in fact reason . . . independent of any First Amendment rights or
exercise thereof, to not extend tenure.’ ” (Mt. Healthy, supra, 429 U.S. at pp. 284-285.)
       Ultimately, the Supreme Court held that:
       “Initially, in this case, the burden was properly placed upon respondent to show
that his conduct was constitutionally protected, and that this conduct was a ‘substantial
factor’ – or, to put it in other words, that it was a ‘motivating factor’ in the Board’s
decision not to rehire him. Respondent having carried that burden, however, the District
Court should have gone on to determine whether the Board had shown by a
preponderance of the evidence that it would have reached the same decision as to
respondent’s re-employment even in the absence of the protected conduct.”
(Mt. Healthy, supra, 429 U.S. at p. 286.)
       The Supreme Court returned the matter to the district court to reconsider its
holding applying that test.
       The majority’s concern that ferreting out discrimination is a “difficult task” (maj.
opn. at p. 13) does not present an insurmountable problem of proof for trial courts and
shows little faith in trial court judges’ abilities in ferreting out impermissible
discrimination. Trial courts already face such demands when evaluating Batson/Wheeler
challenges. Just as I am confident in a “ ‘trial court’s ability to distinguish bona fide

                                               7
reasons from sham excuses’ ” for a strike (People v. Hamilton (2009) 45 Cal.4th 863,
901), I am equally confident that the trial court, after considering the totality of the
circumstances in each particular case, will be able to discern whether an improper reason
for striking a potential juror was determinative even though other permissible reasons for
the strike also motivated the peremptory challenge. Our Supreme Court has “asked trial
courts to undertake possibly even more difficult tasks.” (People v. Johnson (2006)
38 Cal.4th 1096, 1101-1102 [acknowledging difficulties in ordering limited remand for
trial court to determine the second and third steps of Batson analysis after the trial court
erroneously concluded nearly eight years earlier that the defendant had failed to make a
prima facie showing of racial discrimination]; Marks v. Superior Court (2002) 27 Cal.4th
176 [remand of capital case to the trial court over seven years after trial to settle the
appellate record in various ways].)
       “As with all other inquiries concerning mental state, the ultimate determination is
an inference from all the pertinent circumstances, whether or not an acknowledgement
[that an improper reason was a determinative factor in motivating a strike] occurs.”
(Howard, supra, 986 F.2d at p. 31.) “Simply because fact-finding on an issue of mental
state like motivation is difficult is no reason to alter the normal approach to fact-finding
nor to diminish confidence in the force of a witness’s oath or in a trier’s ability to
ascertain facts.” (Ibid.) Like the Second Circuit in Howard, I “have every confidence
that trial judges can be relied upon to determine the true facts of the prosecutor’s motive,
just as they are relied upon to determine subjective mental states of parties and witnesses
in all manner of cases.” (Ibid.)
       Nor do I accept the cynical view that the mixed-motive approach is a gateway to
extensive abuse. Although amicus suggest that mixed-motive analysis will allow myriads
of prosecutors to exhibit obvious unlawful bias against potential jurors and then cure the
violation by offering vague, neutral explanations, I am “unwilling to accept the premise
of this argument that prosecutors will readily disregard the obligations of their office and

                                               8
violate the requirements of an oath by swearing false denials of [discriminatory group
bias] motivation.” (Howard, supra, 986 F.2d at p. 31.) Based on the trial court’s
observations of a trial lawyer’s demeanor, questioning, and the overall voir dire process, I
believe trial courts are well equipped for those instances, where such dissembling may
occur, to recognize that vague neutral reasons for a particular strike were not in fact the
true motivation behind that strike.
       That other states have adopted the per se test does not convince me the mixed
motive approach is improper in the Batson context. (Maj. opn. at p. 14.) Several federal
courts that have considered the issue, as the majority concedes (maj. opn. at p. 11), have
found no impediment to applying the mixed motive approach in similar cases. (See e.g.,
Howard, supra, 986 F.2d at p. 27; Gattis v. Snyder (3d Cir. Del. 2002) 278 F.3d 222, 233;
Jones v. Plaster (4th Cir. 1995) 57 F.3d 417, 420-422; United States v. Darden (8th Cir.
1995) 70 F.3d 1507, 1530-1532; Wallace v. Morrison (11th Cir. 1996) 87 F.3d 1271,
1274-1275.)
       And, unlike the mixed motive approach, the per se approach permits a court to
disregard all of the circumstances present in a particular case by focusing on a single
reason for a strike even though more than one reason may have motivated a party to
challenge a specific juror. (Howard, supra, 986 F.2d at p. 26 [“A person may act for
more than one reason”].) At the final stage of a Batson/Wheeler analysis, however,
“courts must consider ‘ “ ‘all relevant circumstances’ ” ’ in determining whether a strike
was improperly motivated, and this requires a careful ‘review of the entire record.’ ”
(People v. Gutierrez (2017) 2 Cal.5th 1150, 1176 (conc. opn. of Liu, J.); italics added.)
Batson teaches that “[w]hen circumstances suggest the need, the trial court must
undertake a ‘factual inquiry’ that ‘takes into account all possible explanatory factors’ in
the particular case.” (Batson, supra, 476 U.S. at p. 95; italics added.) One such relevant
circumstance is whether a party would have properly stricken a prospective juror for a
valid reason regardless of an invalid reason that partially motivated the strike.

                                              9
       In choosing the mixed motive approach, I am also guided by United States
Supreme Court precedent. The United States Supreme Court’s decision in Rice v. Collins
(2006) 546 U.S. 333, 336 [163 L.Ed.2d 824, 830] (Rice) convinces me that the per se
approach need not apply when evaluating dual motivation cases. In that case, the
prosecutor gave several race-neutral reasons for striking a black juror including the
prosecutor’s effort to obtain gender balance on the jury. (Id. at p. 340.) On a habeas
petition, the Ninth Circuit found the trial court should have questioned the prosecutor’s
credibility in citing other race-neutral reasons for striking the juror once the prosecutor
attempted to use gender as a race-neutral reason for striking the juror in question. (Ibid.)
       After first acknowledging that discrimination in the jury selection process based
on gender violates the Equal Protection Clause (Rice, supra, 546 U.S. at p. 340, citing
J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127 [128 L.Ed.2d 89]), the Supreme Court
nevertheless concluded that the Ninth Circuit had “assigned the gender justification more
weight than it can bear.” (Rice, at pp. 340-341.) The courted noted that, “[t]he
prosecutor provided a number of other permissible and plausible race-neutral reasons,
and [the defendant] provide[d] no argument why this portion of the colloquy
demonstrates that a reasonable factfinder must conclude the prosecutor lied about the eye
rolling and struck [the juror] based on her race.” (Id. at p. 341.) Had the per se approach
applied, the improper justification for the strike (gender neutrality) would have mandated
reversal even if the other reasons given were nondiscriminatory.
       While I do not imply that Rice silently adopted a mixed motive analysis, since the
Supreme Court has made clear that it has not decided the issue (Snyder v. Louisiana
(2008) 552 U.S. 472, 485 [170 L.Ed.2d 175] [discussing but not deciding whether mixed-
motive analysis applies in Batson context]), I merely point out that Rice implicitly shows
that a per se approach is not necessarily mandated for evaluating dual motivation
Batson/Wheeler challenges.



                                             10
       The Supreme Court’s recent decision in Tharpe v. Sellers (2018) -- U.S. – [199
L.Ed.2d 424], 2018 WL 311568, also provides guidance here. The black defendant in
Tharpe moved to reopen his federal habeas corpus proceeding regarding his claim that
the Georgia jury that convicted him of murdering his black sister-in-law included a white
juror who was biased against him and voted for the death penalty because he was black.
(Id. at pp. 424-426.) In returning the matter to the court of appeals, and after noting that
the district court had denied the certificate of appealability on several grounds (and
noting that the Court expressed no opinion as to those issues) the majority found it
debatable whether the defendant had shown prejudice after he produced an affidavit from
the white juror that expressed racist opinions about blacks. (Id. at pp. 424-425, 429.)
The Court did not hold that the affidavit alone demonstrating racial animus required a per
se finding that supported defendant’s petition much less an automatic reversal of his
sentence to death.
       While it is unclear whether the fact that the white juror later recanted what was set
forth in his first affidavit had a bearing on the Court’s observation regarding the
defendant’s showing of prejudice, Tharpe, at a basic level, shows, at least, that a
judgment of conviction need not be automatically, and always, set aside whenever
discriminatory animus is shown even though the evidence also shows that such animus
may not have been the determinative factor that ultimately lead to that conviction.
       I am also not persuaded that our own state Constitution’s due process clause (Cal.
Const., art. I, § 7, subd. (a)) dictates adopting the per se test. (Maj. opn. at p. 15.) The
dignitary interest discussed in the cases cited by the majority is the interest, through a
hearing, of “informing individuals of the nature, grounds and consequences of the action
and in enabling them to present their side of the story before a responsible governmental
official.” (Saleeby v. State Bar (1985) 39 Cal.3d 547, 563-565; Today’s Fresh Start, Inc.
v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 213.) To the extent the
cases cited apply at all here, under the mixed motive test, the trial judge, an impartial

                                              11
government official, must consider all of a prosecutor’s proffered reasons, both
permissible and impermissible, and decide the determinative factor that motivated a
strike. The burden is on the prosecutor. The defendant’s due process liberty interest in
both fair and unprejudiced decision making and in being treated with respect and dignity
is thus protected.
       Furthermore, “[i]n determining applicable due process safeguards, it must be
remembered that ‘due process is flexible and calls for such procedural protections as the
particular situation demands.’ ” (People v. Ramirez (1979) 25 Cal.3d 260, 268.) The
mixed motive approach provides the flexibility and procedural protections needed to
safeguard a defendant’s constitutional rights. If the prosecutor meets his burden of
establishing that the same decision would have resulted even had the impermissible
purpose not been considered, defendant can “no longer fairly attribute the injury
complained of [here, striking the two openly gay jurors] to an improper discriminatory
purpose. In such circumstances, there would be no justification for judicial interference
with the challenged decision.” (Arlington Heights, supra, 429 U.S. at p. 270, fn. 21.)
       Finally, overturning a conviction by an unbiased jury simply because a prosecutor
was partially motivated to strike a prospective juror for an impermissible reason when the
prosecutor would have legally and justifiably stricken the juror regardless of the improper
motivation not only erodes public confidence in the adjudicative process, but also
threatens the finality of judgments. If a defendant has received a fair trial, there is an
institutional interest in protecting the finality of the court’s judgment. Theoretical
imperfections ought not be treated more seriously than real deficiencies, for such skewed
values would undermine confidence in the administration of justice. While I am sensitive
to the appearance of perceived discriminatory bias described by the majority, I am not
persuaded that a per se rule is required to address this concern or to protect the fairness--
actual or perceived--of judicial proceedings.



                                              12
       The majority justifies its decision under the broad rubric of fairness and equality,
but there may not have been, in the final analysis, anything unfair or unequal in
defendant’s trial. The neutral reasons for striking the openly gay jurors may well have
been valid. Reversing the unbiased jury’s convictions for a very serious crime under
such circumstances--without first determining the motivation and import of what in fact
motivated the prosecutor to strike the openly gay jurors--denigrates rather than protects
the equality and fairness of our criminal justice system.
       While the majority’s quest for social perfection in our criminal justice system is, I
am sure, well-meaning, its decision in this instance is misguided. Importantly, that
decision comes with a significant societal cost; the automatic reversal of a conviction for
serious crimes of violence that may, in fact, have been fairly tried and entered untainted
by constitutional error.




                                                        HULL                  , J.




                                             13
