Filed 1/28/15 Modified and Certified for Publication 2/9/15 (order attached)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                             DIVISION SEVEN


THE PEOPLE,                                                     B247844

        Plaintiff and Respondent,                               (Los Angeles County
                                                                Super. Ct. No. BA389575)
        v.

RICHARD RAY CISNEROS,

        Defendant and Appellant.




        APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I.
Sandoval, Judge. Reversed and remanded.
        William J. Capriola, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Steven D. Matthews, and Herbert S. Tetef, Deputy Attorneys General, for
Plaintiff and Respondent.
                                       _______________________
       Richard Ray Cisneros appeals from the judgment entered following his conviction
by a jury of two counts of making a criminal threat against Ebony Pitts. Cisneros
                                                                1
contends the trial court erred in denying his Batson/Wheeler motions alleging the
prosecutor had discriminated against men in exercising peremptory challenges during
              2
jury selection. We reverse.
                  FACTUAL AND PROCEDURAL BACKGROUND

       1. The Information
       Cisneros was charged by information with two counts of making a criminal threat
                                                    3
against Pitts (Pen. Code, § 422) (counts 1 and 2), one count of failure to register as a sex
offender (§ 290, subd. (b)) (count 3) and one count of sexual intercourse with a minor,
Pitts (§ 261.5, subd. (c)) (count 4). The information specially alleged, as to count 1,
Cisneros had personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)); as to
counts 1 and 2, Cisneros had suffered a prior serious felony conviction (§ 667,
subd. (a)(1)); and, as to all counts, Cisneros had suffered one prior serious or violent
felony conviction within the meaning of the three strikes law (§§ 1170.12, subds. (a)-(d),
667, subds. (b)-(i)). Cisneros pleaded not guilty and denied the special allegations.
       2. Summary of Evidence Presented at Trial
              a. The People’s evidence
                     i. Pitts’s preliminary hearing testimony
       After the trial court found Pitts was unavailable to testify at trial, it permitted her
preliminary hearing testimony to be read to the jury. Pitts had testified she met Cisneros

1     Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]; People v.
Wheeler (1978) 22 Cal.3d 258.
2      Cisneros also contends the trial court abused its discretion in refusing to admit
testimony that Pitts had said she could not be bothered testifying at trial and denying his
motion for a new trial based on newly discovered evidence. Because we reverse for
Batson/Wheeler error, we need not address those arguments.
3      Statutory references are to the Penal Code unless otherwise indicated.



                                               2
in 2010 when she was 17 years old and he was 36 years old. Pitts told Cisneros her age
before they had sex four days after they had met.
       In May 2011 Cisneros and Pitts were engaged and living together with their infant
son. On the evening of May 23, 2011 Cisneros and Pitts were arguing when Pitts’s sister
called. After Pitts told her sister she and Cisneros were arguing, Cisneros became
enraged that Pitts was “telling everybody our business” and took a 12- to 14-inch butcher
knife out of the kitchen drawer. Cisneros told Pitts, “When you get off the phone, I’m
going to get you. I’m going to kill you.” Cisneros, who was standing about six feet
away, made forward thrusting movements with the knife toward Pitts’s stomach.
       When Cisneros turned his back, Pitts, scared, ran out of the apartment carrying the
infant. She called the police emergency number, and a recording of the call was played
for the jury. Pitts later told the district attorney she had lied about the incident. Pitts
testified Cisneros had promised he would never threaten her again and would go to
counseling and church.
       On October 3, 2011 Pitts was doing errands when Cisneros called and told her,
“[C]ome get this bitch ass baby, he needs his mom, I might hurt him.” Pitts returned
home, picked up the child and left. Cisneros called her, saying, “I don’t understand why
you are playing these games.” When Pitts told him to calm down and that she was going
to call the police, Cisneros said, “[W]ell, the police, that’s not going to do shit. All I’m
going to do when I get out is I’m going to find you and I will kill you.” Pitts, who was
scared because Cisneros had told her stories about his past, went to the police station and
filed a report.
                      ii. Law enforcement personnel testimony
       On May 23, 2011 Los Angeles Police Officer Matthew Oropeza and his partner
responded to a call about possible domestic violence. They met Pitts, who was holding a
baby, in a McDonald’s parking lot. Pitts, crying and afraid, explained Cisneros had
threatened to kill her while wielding a knife when she was on the telephone with her
sister. Pitts told the officers she and Cisneros did not live together and did not have any



                                               3
children. The officers took Pitts to the police station and subsequently detained Cisneros,
whom they found walking about a block and a half from Pitts’s home. When officers
placed Cisneros in the police car, he began to kick and bang his head on the glass
partition separating the front and back seats.
       After the incident Pitts did not return telephone calls from law enforcement. On
the day the case was going to be filed Los Angeles Police Detective Jeffrey Sandefur and
a deputy district attorney were finally able to reach Pitts by telephone. Pitts told them her
initial report had been fabricated, and the district attorney decided not to file charges
against Cisneros.
       On October 3, 2011 Pitts—crying, hysterical and carrying her infant child—
approached the front desk of the Olympic Division police station. She told Officer Angel
Alfaro she had just received a telephone call from Cisneros, her “live-in boyfriend,”
threatening to kill her. She said she believed he would do it because he had a violent
past. Pitts also told Alfaro that the young child was her and Cisneros’s son. Cisneros
was found inside Pitts’s home and arrested.
       Detective Sandefur interviewed Pitts in person after the October 3, 2011 incident.
Pitts told him she had recanted her report of the May 2011 incident because she was
afraid. She said her initial report to the police had been correct.
                     iii. Evidence of prior acts of domestic violence
       Mignonette Jones testified she and Cisneros lived together and had an intimate
relationship from 1999 through 2004. Cisneros was physically and verbally abusive to
Jones during the relationship and had threatened to kill her and their 11-year-old son.
After their intimate relationship ended, Cisneros lived with Jones “off and on” and
continued to be abusive, including punching and kicking her. One day in April 2006
Cisneros pulled out Jones’s hair during a fight. Cisneros left the home after Jones asked
him to, but returned later that day and threatened to kill Jones and their son. As a result
of that incident Cisneros was convicted of inflicting corporal injury upon a spouse or
cohabitant (§ 273.5, subd. (a)), and Jones obtained a restraining order against him.



                                                 4
Notwithstanding the conviction and restraining order, Cisneros continued to verbally
abuse Jones and kicked her in the stomach on one occasion.
                 b. The defense’s evidence
       Cisneros testified on his own behalf. He insisted Pitts was already pregnant when
he met her in February 2010. Cisneros agreed to be the child’s father because Pitts did
not want the biological father to be involved in his life. Pitts was 18 years old when they
first had sex.
       According to Cisneros, in February 2011 Pitts and Cisneros ended their
relationship but he continued to see the child twice a month. On May 23, 2011 Pitts
became angry with Cisneros after he raised concern about Pitts smoking cigarettes and
marijuana in the apartment because the young child had bronchiolitis. Because he was
concerned Pitts was smoking carelessly around the boy, Cisneros took her container of
marijuana when he left the apartment. Pitts was upset and demanded that he return it, but
he did not. Cisneros never threatened Pitts or pointed a knife at her. He banged his head
on the glass partition in the police car because he thought it was unfair he was going to
jail when “nothing happened.”
       On October 3, 2011 Cisneros was watching the child while Pitts was running
errands. Pitts became angry because Cisneros refused to give her information she had
requested in a telephone call and, in a subsequent call, refused to tell her where she could
purchase marijuana. Pitts came home, got the child and left again, asking Cisneros to
wait until she returned so he could help her with the shopping bags. Cisneros, who never
threatened Pitts, waited. Shortly thereafter the police arrested him in Pitts’s apartment.
       4. The Verdict and Sentencing
       The jury found Cisneros guilty of two counts of making a criminal threat and
found true the special allegation he had used a dangerous weapon during the commission
of the May 2011 incident. The jury was unable to reach a verdict on the remaining
counts, and the court declared a mistrial as to them. They were later dismissed.




                                             5
       Cisneros admitted the prior conviction allegations, and the court sentenced him to
an aggregate state prison term of 11 years, four months, comprised of the middle term of
two years on count 1, doubled under the three strikes law; plus one year for the dangerous
weapon enhancement; plus an additional five years for the section 667,
subdivision (a)(1), enhancement; plus one-third the middle term of two years on count 2,
doubled under the three strikes law.
                                       DISCUSSION
       1. Voir Dire Proceedings
             a. The first Batson/Wheeler motion
       Jury selection took place over two days. Forty jurors were brought into the
courtroom and divided into two groups of 20. After the first 20 jurors were questioned
by the court and attorneys, some were excused for cause. Twelve jurors were placed in
                                                4
the jury box, at least four of whom were male. The prosecutor accepted the jury as
constituted; but defense counsel exercised a peremptory challenge, excusing a
prospective female juror, who was replaced with another prospective female juror. The
prosecutor again accepted the jury; but defense counsel dismissed a prospective female
juror, who was replaced with a prospective male juror. The prosecutor and defense
counsel each exercised several additional challenges, with the prosecutor excusing only
prospective male jurors. After the court dismissed additional prospective jurors for
cause, the second group of 20 prospective jurors was questioned by the court and
attorneys.
       Peremptory challenges resumed, and the prosecutor excused another prospective
male juror. Defense counsel made a Batson/Wheeler motion, arguing, “The only four
challenges the People have exercised in consecutive order have all been men, and I

4      Because the jurors were referred to by number rather than name, the gender of
some of them cannot be definitively determined from the record on appeal. However, it
appears (for example, from the use of “Sir” or “Ma’am”) eight women and four men were
seated in the jury box at this time.



                                            6
believe that sex is a protected class and as such the defense has met its prima facie burden
in establishing the four consecutive jurors who were kicked off [are] from a protected
class.” The court found a prima facie case of discrimination, and the prosecutor
explained her reasons for eliminating the prospective male jurors: Juror 7 because,
having been arrested a few times and in a bar fight, he was a “kind of rough around the
edges guy”; Juror 13 because he was an engineer and engineers tend to be “extremely nit-
picky” and “over-analytical”; Juror 19 because his responses were limited to yes or no
answers and he seemed robotic; and Juror 24 for similar reasons as Juror 19. The court
denied the Batson/Wheeler motion, finding the prosecutor’s reasons for excusing the
prospective jurors were independent of their gender.
              b. The second Batson/Wheeler motion
       After the prosecutor exercised her fifth peremptory challenge to excuse another
prospective male juror, defense counsel renewed her Batson/Wheeler motion. The court
found a prima facie case of discrimination, and the prosecutor explained, “I’m kicking
Juror No. 6 because I believe the [next] person . . . that is slated in his position, in my
view, is a better fit for what I like, that’s the gentleman that was inquired of at length by
the defense.” After the trial court expressed doubt that was a legitimate reason—stating,
“my understanding of the case law is they must focus in on that particular juror for
kicking that juror and not for liking someone else who’s coming up next”—the
prosecutor argued, “I’m replacing him with a male. And I think he’s a better fit.” She
also explained, as to Juror 6, “we didn’t get a whole lot of information from him other
                                                     5
than . . . his area of residence and his occupation.” The court denied the Batson/Wheeler
motion, finding the prosecutor’s reason for excusing Juror 6 was not gender related.




5      Juror 6 had also said he was married with two children and his wife stayed home
with the children.



                                               7
              c. The third Batson/Wheeler motion
       Defense counsel made a third Batson/Wheeler motion after the prosecutor
exercised her eighth peremptory challenge to excuse Juror 31, one of three men in the
jury box at the time. The trial court did not find a prima facie case of discrimination
although it allowed the prosecutor to explain her reasons for excusing Juror 31.
              d. The fourth Batson/Wheeler motion
       Juror 31 was replaced by male prospective Juror 32. After the prosecutor used her
ninth peremptory challenge to excuse him, defense counsel made a fourth
Batson/Wheeler motion. The trial court found a prima facie case of discrimination. The
prosecutor explained her decision in part, “I’m kicking this juror not for a gender based
reason, but because I believe the next juror in line, Juror No. 34, is a better fit.
Juror No. 34 was very involved in the voir dire process. He’s the country club manager.
He is very conservative in his appearance and very conservative in his answers that he
        6
shared.” The court denied the Batson/Wheeler motion, explaining that replacing one
potential male juror with another male juror who appeared more favorable toward the
                                                                                          7
prosecution was a genuine, gender-neutral reason that did not deny equal protection.
The panel that was finally accepted was comprised of 10 women and two men.
       2. Governing Law
       “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

6      Juror 34 also said one of his staff members was a retired deputy sheriff.
7      After counsel for Cisneros used six of seven peremptory challenges to excuse
potential female jurors, the prosecutor made a Wheeler/Batson motion. The court found a
prima facie case of discrimination with respect to two of the excused jurors, but further
found defense counsel’s explanation for excusing them to be nondiscriminatory.



                                               8
violates the defendant’s right to equal protection under the Fourteenth Amendment to the
United States Constitution.” (People v. Avila (2006) 38 Cal.4th 491, 541, citing, inter
alia, People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler) and Batson v. Kentucky
(1986) 476 U.S. 79, 88 [106 S.Ct. 1712, 90 L.Ed.69] (Batson).) The procedural and
substantive standards trial courts properly use when considering motions challenging
peremptory strikes are well-established: “‘“‘First, a defendant must make a prima facie
showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if
that showing has been made, the prosecution must offer a race-neutral basis for striking
the juror in question[; and t]hird, in light of the parties’ submissions, the trial court must
determine whether the defendant has shown purposeful discrimination.’”’” (People v.
Hamilton (2009) 45 Cal.4th 863, 898, quoting Snyder v. Louisiana (2008) 552 U.S. 472,
                                                8
476-477 [128 S.Ct. 1203, 170 L.Ed.2d 175].)
       Here, we are concerned with the second step of the analysis because the trial court
on several occasions found a prima facie case of discrimination, a finding not challenged
on appeal. “‘The second step . . . does not demand an explanation that is persuasive, or
even plausible. “At this [second] 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 neutral.”’” (People v. Reynoso
(2003) 31 Cal.4th 903, 916; see Hernandez v. New York (1991) 500 U.S. 352, 360 [111
S.Ct. 1859, 114 L.Ed.2d 395] [“[a] neutral explanation” at the second step of a
Batson/Wheeler analysis “means an explanation based on something other than the race
of the juror”].) A prosecutor’s reason for the strike need not “‘make[] sense’” to be
considered legitimate for Batson/Wheeler purposes; the reason need only be one “‘that


8      The Batson/Wheeler principles apply to peremptory challenges excusing jurors
improperly on the basis of race, gender or ethnic grounds. (See People v. Avila, supra,
38 Cal.4th at p. 541.) Most of the cases discussing these principles, however, refer only
to race. For ease of reference we will not modify the quotations to reflect the fact that
gender bias is alleged in the instant case.



                                               9
does not deny equal protection.’” (Reynoso, at p. 916; see People v. Jones (2011)
51 Cal.4th 346, 360 [“‘prospective juror may be excused based upon facial expressions,
gestures, hunches, and even arbitrary and idiosyncratic reasons’” as long as the reason
“‘does not deny equal protection’”]; People v. Perez (1994) 29 Cal.App.4th 1313, 1330,
fn. 8 [“[p]eremptory challenges based on counsel’s personal observations are not
improper”].) Whether the prosecutor offered a gender-neutral reason for exercising a
peremptory challenge is a question of law subject to independent review. (People v.
Alvarez (1996) 14 Cal.4th 155, 198, fn. 9.)
       Purposeful discrimination in the exercise of peremptory challenges is structural
error that is reversible per se: “Batson itself as well as the cases that follow it confirm
that when a violation of equal protection in jury selection has been proven, the remedy is
a new trial, without the need for any inquiry into harmless error or examination of the
empaneled jury.” (Winston v. Boatwright (7th Cir. 2011) 649 F.3d 618, 627.)
Even “[t]he exclusion by peremptory challenge of a single juror on the basis of race or
ethnicity is an error of constitutional magnitude requiring reversal.” (People v. Silva
(2001) 25 Cal.4th 345, 386; see Wheeler, supra, 22 Cal.3d at p. 283 [infringement of
right to a fair and impartial jury is “prejudicial per se”].)
       3. The prosecutor’s explanation for excusing Jurors 6 and 32 was not
          gender neutral
       The prosecutor explained she had excused Juror 6 (the second Batson/Wheeler
motion) and Juror 32 (the fourth motion) because in each instance she preferred the next
prospective juror. Although the prosecutor provided some information about why the
next jurors were desirable, she failed to identify any characteristics whatsoever about
Jurors 6 and 32 or articulate personal observations about their demeanor or even a hunch
about them that animated the decision to excuse them. She thus failed to carry her step
two burden to proffer a gender-neutral explanation for dismissing them. (See Miller-El v.
Cockrell (2003) 537 U.S. 322, 328 [123 S.Ct. 1029, 154 L.Ed.2d 931 [“prosecution must
offer a race-neutral basis for striking the juror in question”]; accord, People v. Hamilton,



                                               10
supra, 45 Cal.4th at p. 898; see generally Rice v. Collins (2006) 546 U.S. 333, 338 [126
S.Ct. 969, 163 L.Ed.2d 824] [if defendant has made a prima facie showing peremptory
challenge was exercised on the basis of race or gender, “the burden shifts to the
prosecutor to present a race-neutral explanation for striking the juror in question”].)
       In concluding the prosecutor failed to adequately respond to defense counsel’s
prima facie showing of group bias in her exercise of peremptory challenges, we do not
question the trial court’s acceptance of the genuineness of the prosecutor’s stated reason.
(Cf. People v. Avila, supra, 38 Cal.4th at p. 541 [“[a]s long as the court makes ‘a sincere
and reasoned effort to evaluate the nondiscriminatory justifications offered, its
conclusions are entitled to deference on appeal’”].) However, whenever counsel
exercises a peremptory challenge, it necessarily means that he or she prefers the next
prospective juror to the one being challenged (whether the individual qualities of the next
person are known or unknown). It is, in effect, no reason at all. Thus, simply reciting
this truism while striking a prospective juror who is a member of a protected class is not
an adequate nondiscriminatory justification for the excusal, particularly when, as here, in
each instance to reach the preferred next prospective juror the prosecutor elected to strike
a prospective male juror rather than one of the many prospective female jurors then
                       9
seated in the jury box. (See Batson, supra, 476 U.S. at pp. 97-98 [the prosecutor may
not rebut the defendant’s prima facie case “merely by denying that he had a
discriminatory motive or ‘[affirming] [his] good faith in making individual selections.’
[Citation.] If these general assertions were accepted as rebutting a defendant’s prima
facie case, the Equal Protection Clause ‘would be but a vain and illusory requirement.’
[Citation.] The prosecutor therefore must articulate a neutral explanation related to the
particular case to be tried.”].) The bar was not high—the explanation did not even have
to be persuasive or even plausible, just adequate enough for the court to ensure it was not


9     There were nine women in the jury box both when Juror 6 and Juror 32 were
excused.



                                             11
                             10
inherently discriminatory.        (Rice v. Collins, supra, 546 U.S. at p. 338; see Wheeler,
supra, 22 Cal.3d at pp. 282-283.)
       To be sure, the prosecutor was willing to accept some men on the jury; she twice
accepted the panel when it had four men on it. But the question is not whether some
members of the protected classification were acceptable, it is whether any juror, when
excused, was dismissed because of group bias. (See People v. Avila, supra, 38 Cal.4th at
p. 549 [“[w]hen a party makes a Wheeler motion, the issue is not whether there is a
pattern of systematic exclusion; rather, the issue is whether a particular prospective juror
has been challenged because of group bias”].) The prosecutor’s failure to articulate
anything about Jurors 6 and 32 as the basis for striking them after the trial court had
found a prima facie case of group bias did not nothing to dispel the reasonable inference
the prosecutor preferred women to men and was exercising her peremptory challenges to
effect that preference.
                                          DISPOSITION
       The judgment is reversed, and the matter is remanded for a new trial.



                                                      PERLUSS, P. J.

       We concur:



              WOODS, J.                               FEUER, J.*



10    The trial court properly accepted as gender neutral the prosecutor’s explanation
she had excused prospective male Jurors 29 and 24 because they were “robotic” and
responded only with yes or no.
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.



                                                 12
Filed 2/9/15
                            CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                     DIVISION SEVEN

THE PEOPLE,                                         B247844

        Plaintiff and Respondent,                   (Los Angeles County
                                                    Super. Ct. No. BA389575)
        v.
                                                       ORDER MODIFYING AND
RICHARD RAY CISNEROS,                                  CERTIFYING OPINION
                                                       FOR PUBLICATION
        Defendant and Appellant.                       (CHANGE IN JUDGMENT)



        THE COURT:
        It is ordered that the opinion filed herein on January 28, 2015 be modified as
follows:
        1. On page 2, the entire opening paragraph, beginning “Richard Ray Cisneros
appeals from” is deleted and the following paragraph is inserted in its place:
                 Richard Ray Cisneros appeals from the judgment entered following his
          conviction by a jury of two counts of making a criminal threat against Ebony
          Pitts. Cisneros contends the trial court erred in denying his
          Batson/Wheeler1 motions, arguing the prosecutor failed to rebut his prima facie
          showing she had discriminated against men in exercising peremptory challenges
          during jury selection.2 Because the prosecutor’s explanation she simply preferred
          the next prospective jurors, offered without identifying any characteristics of the
          men being excused, was not a nondiscriminatory justification, we reverse the
          conviction and remand for a new trial.
         _____________________
         1.
              Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69];
         People v. Wheeler (1978) 22 Cal.3d 258.
         2.
               Cisneros also contends the trial court abused its discretion in refusing to
         admit testimony that Pitts had said she could not be bothered testifying at trial and
        denying his motion for a new trial based on newly discovered evidence. Because
        we reverse for Batson/Wheeler error, we need not address those arguments.


       2.     The above-entitled opinion was not certified for publication in the Official
Reports. It appearing the opinion meets the standards for publication specified in
California Rules of Court, rule 8.1105(c), appellant’s request pursuant to California Rules
of Court, rule 8.1120(a) for publication is granted.
       IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
       ORDERED that the words “Not to be Published in the Official Reports” appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
       This modification changes the judgment.

___________________________________________________________________
       PERLUSS, P. J.           WOODS, J.            FEUER, J.*




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                             2
