Filed 8/24/16 P. v. Ward CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B263316

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA392093)
         v.

JAMES VERNON WARD,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Craig J.
Mitchell, Judge. Reversed with directions.
         Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, and David E. Madeo, Deputy Attorney General,
for Plaintiff and Respondent.
                                 _________________________________
          Defendant James Vernon Ward appeals from a judgment that was reinstated
following a limited remand for the hearing and determination of whether the prosecutor’s
reasons for exercising a peremptory challenge against a prospective juror were race-
neutral. Defendant contends that the trial court violated his due process right to be
present at the hearing by conducting it outside his presence. We agree.
                                       BACKGROUND
          In 2012 a jury convicted defendant of five counts of second degree robbery, four
counts of attempted second degree robbery, two counts of grand theft auto, and single
counts of possession of a firearm by a convicted felon and assault with a firearm. The
jury further found true gang enhancement allegations attached to each count and
allegations that a principal was armed with a firearm in the commission of every robbery
and attempted robbery, and the assault with a firearm. The trial court found true
allegations defendant had suffered two prior serious felony convictions within the scope
of the “Three Strikes” law and Penal Code section 667, subdivision (a)(1), and sentenced
defendant to consecutive third strike terms of 25 years to life in prison for every count,
plus gang and firearm enhancements, for an aggregate sentence of 454 years to life in
prison.
          In his original appeal, defendant contended, and we agreed, that the trial court
erred in ruling on his motion pursuant to People v. Wheeler (1978) 22 Cal.3d 258, 276–
277 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79, 85, 96–99 [106 S.Ct. 1712]
(Batson), which was made to challenge the prosecutor’s use of peremptory challenges
against two African-American jurors. The trial court found defendant had shown a prima
facie case of group bias, but overruled the objection after the prosecutor stated her
reasons with respect to only one of the two jurors. We conditionally reversed the
judgment, remanding the matter for the trial court to “attempt to perform the second and
third stages of the Batson/Wheeler analysis. The court should require the prosecutor to
explain her peremptory challenge of Prospective Juror No. 4. If the prosecutor offers a
race-neutral explanation, the court must attempt to make a sincere and reasoned


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evaluation of that explanation. If the court finds that, due to the passage of time or any
other reason, it cannot adequately address the issues at this stage or make a reliable
determination, or if it determines that the prosecutor improperly challenged Prospective
Juror No. 4, it should set the case for a new trial. If it finds the prosecutor exercised her
peremptory challenges in a permissible fashion, it should reinstate the judgment.”
(People v. Ward (Oct. 24, 2014, B244947) [nonpub. opn.].)
       Upon remand, the trial court conducted the hearing as directed on March 5, 2015,
but defendant was not present. The record does not reflect whether the trial court refused
to order defendant transported for the hearing or simply failed to do so. Nor does the
record reflect any waiver by defendant of his right to be present. The record reflects only
that when the court commenced the hearing, it stated, “Mr. Ward is not before the court.
He is currently serving time in state prison on this case.”
       After denying a defense motion to dismiss because more than 60 days had elapsed
since remittitur, the trial court asked the prosecutor to “articulate . . . a race-neutral
justification for exercising a peremptory challenge as to Prospective Juror No. 4.” The
prosecutor responded that Prospective Juror No. 4 “was a social worker at Cal Works. . . .
It’s been my experience—well, social workers can be quite—they rely on sympathy
oftentimes, and I found, in my experience, that I don’t particularly like to have a social
worker sitting on my jury. [¶] That was evidence also by the record in this case because
out of the total jurors, which were over 80, there were three social workers in the panel,
and I asked and used a peremptory on all three of those individuals who came after Juror
No. 4.” She continued, “Second, he made a statement that you have to wear different
hats, and while that generally is true, coupled with the fact that he was a social worker,
made me concerned that perhaps sympathy would play too much of a role in his
deliberations, and as the court is aware, sympathy is not something that a juror is to
consider.”
       The prosecutor added that the reporter’s transcript reflected that “defense counsel
was asking a question who [sic] was sitting in juror spot No. 3, and the record indicates


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and shows that Juror No. 4 was nodding along in response. [¶] And it’s my personal
opinion that I always take note if a juror is responding positively to the defense as
opposed to the prosecution. I don’t remember him ever doing that type of a non-verbal
communication with me, so I took that as another indication that perhaps he wasn’t a
juror that the People would want.”
       Finally, the prosecutor noted that on September 10, 2012, the reporter’s transcript
indicated that Prospective Juror No. 4 was “missing from the panel. I’ve had a prior trial
where I didn’t pay attention to that fact, and that juror in my other case was late almost
every single day, which made the rest of the jurors upset, and he ended up being the one
that hung the jury in that other case. [¶] So because of that, I always try to pay attention
to if a juror is late or missing when all other juror members are present. I think that it can
show their attitude towards the court and the case, and I wanted to make sure that we had
a jury that was paying attention, that took it seriously, and that coming to court on time
was a priority to the jurors, and he was late that one day.”
       The court responded: “Very well. The court is satisfied, based on Ms. Forsberg’s
articulation this morning, that there was a non-cognizable class justification for Ms.
Forsberg’s exercise of the peremptory challenge with respect to the juror in question,
Juror No. 4. [¶] Consequently, the court believes and is holding that, as I just indicated,
the exercise of the peremptory challenge conforms with the lawful exercise of such
challenges, the Batson-Wheeler motion as to both Jurors No. 4 and 10 is found to be
appropriate, and the Batson-Wheeler motion is respectfully denied.”
       Defense counsel then addressed the court: “I went through the transcripts. I went
through my notes. Even after doing that, I have no specific recollection as to Juror No. 4.
I wish I did, but I don’t, so I’m really not in a position one way or the other to challenge
or add anything different. [¶] I do feel that Mr. Ward is somewhat disadvantaged
because of my lack of recollection and my ability to challenge, but if the court is
indicating that you have personal recollection that is in agreement with Ms. Forsberg, I
don’t doubt her, what she’s stating, but memories and things are affected. [¶] So I just


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think that at this point Mr. Ward—I’m not capable, on his behalf, to challenge the
assertions made by counsel.”
       The court replied: “I do have independent recollection, and if counsel can see the
stickies that protrude from my copy of the transcripts, I read and reread the voir dire
examination to refresh my memory as to that portion of the proceedings, and they
conform with what Ms. Forsberg has articulated today.”
                                       DISCUSSION
       A defendant has a federal constitutional right emanating from the due process
clause of the Fourteenth Amendment to be present at any stage of the criminal
proceedings “ ‘that is critical to its outcome if his presence would contribute to the
fairness of the procedure.’ ” (People v. Bradford (1997) 15 Cal.4th 1229, 1356–1357.)
“Due process ‘clearly requires that a defendant be allowed to be present “to the extent
that a fair and just hearing would be thwarted by his absence.” ’ ” (People v. Marks
(2007) 152 Cal.App.4th 1325, 1332–1333 (Marks).) In addition, article I, section 15 of
the California Constitution and Penal Code sections 977 and 1043 establish a defendant’s
right to be personally present at critical proceedings. (Bradford, at p. 1357.) A defendant
does not have a constitutional right to be present when “ ‘ “ ‘presence would be useless,
or the benefit but a shadow.’ ” ’ ” (People v. Panah (2005) 35 Cal.4th 395, 443.) Thus, it
has been held, for example, that a defendant does not have a right to be present for
argument between the parties regarding admissibility of certain evidence, rereading of
testimony, discussions of voir dire procedures or jury instructions, or in-chambers or at-
bench discussions. (People v. Butler (2009) 46 Cal.4th 847, 864–865; People v. Harris
(2008) 43 Cal.4th 1269, 1306–1307.)
       Under the circumstances, the hearing on remand was critical to the outcome of the
proceedings because it was to determine whether defendant received a new trial or the
judgment against him was reinstated. In the posture of the remand, two and one-half
years after voir dire, where defense counsel had no recollection, admittedly could not
effectively represent defendant, and essentially deferred to the court’s and the


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prosecutor’s assertions, defendant’s presence would have contributed to the fairness of
the procedure by allowing him to communicate with his attorney to convey his own
recollections regarding Prospective Juror No. 4 and other prospective jurors and to assist
counsel during the hearing. Unlike the court and counsel, who would have conducted
voir dire in a large number of trials both before and after defendant’s trial, for defendant
the trial was a relatively unique experience. Thus, defendant’s recollection would not
have been diminished or confused by engaging in the same type of activity with a lengthy
parade of different jurors in other trials. Moreover, because defendant’s liberty for the
remainder of his life was at stake, the prospective jurors and the jury selection process
may have created more vivid and enduring memories for him than for any of the other
participants. While we cannot say with certainty that defendant would have been able to
convey any information to counsel that would have persuaded the court to conclude that
the prosecutor’s stated reasons were not genuine, given defense counsel’s complete
inability or failure to protect defendant’s interests at the hearing, we conclude defendant’s
absence thwarted a fair and just hearing. As defendant argues, “If he could not help
refresh his attorney’s recollections, he could at least have taken exception to her in effect
conceding the issue.”
       A case upon which defendant relies, Marks, supra, 152 Cal.App.4th 1325, is
somewhat instructive. There, following voir dire in open court, the trial court forced
counsel to make their peremptory challenges in chambers, outside the presence of both
Marks and the prospective jurors. In the process, defense counsel forgot to challenge a
prospective juror who had said he believed that an innocent defendant would testify in his
own defense to “ ‘clear it up.’ ” (Id. at p. 1330.) When the judge returned and announced
that the jury had been selected, Marks asked his attorney why the juror in issue was still
there, and counsel admitted he had forgotten about that juror. That juror was selected as
the foreperson and wrote a note to the court asking if defense counsel could explain why
Marks was found in possession of one of the stolen items. (Id. at pp. 1329–1332.) On
appeal Marks contended his due process right to presence was violated by the exercise of


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peremptory challenges in chambers. (Id. at p. 1327.) In Marks, the appellate court
distinguished the trial court’s unique procedure from People v. Ochoa (2001) 26 Cal.4th
398, in which a court had conducted “sidebar inquiries of prospective jurors whose jury
questionnaires designated certain items ‘confidential’ ” (id. at p. 433) and People v. Holt
(1997) 15 Cal.4th 619, in which the court conducted an “in-chambers discussion of juror
hardship forms” (id. at p. 706, fn. 29): “Here, contrary to Ochoa, Marks makes a showing
that he and the prospective jurors were not only out of earshot but also out of sight during
the portion of the jury selection at issue during which nothing in the record intimates that
confidential matters were discussed. Here, contrary to Holt, Marks makes a showing that
the suitability, not the availability, of the prospective jurors was at issue. Here, contrary
to Ochoa and Holt alike, Marks makes a showing that, collectively, his absence and the
absence of the prospective jurors from the portion of the jury selection at issue induced a
breakdown in attorney-client communication about multiple peremptory challenges—
especially to the prospective juror whom he and his attorney agreed should be excused but
who later became the jury foreperson.” (152 Cal.App.4th at p. 1334.) The appellate court
therefore found Marks’s due process right to be present had been violated and reversed
the judgment. (Ibid.)
       As in Marks, defendant could be neither seen nor heard during the hearing upon
remand, and his absence resulted in a complete breakdown in attorney-client
communication. Just as in Marks, had defendant been present he could have
communicated with defense counsel, reminded her of factual matters regarding the
prospective jurors and jury selection that she could have raised at the hearing, and he
could have prodded counsel to represent his interests more effectively.
       The Attorney General argues, “The remand hearing concerned solely a question of
law: whether the prosecution’s articulation of her reasons for excusing Juror No. 4 was
within the allowable standard of the Batson/Wheeler analysis.” The Attorney General is
wrong. First, the prosecutor’s reasons are themselves factual matters. Next, the trial
court was required to make a sincere and reasoned attempt to evaluate the explanation for


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each challenged juror in light of the circumstances of the case, trial techniques,
examination of prospective jurors, and exercise of peremptory challenges. (People v.
Fuentes (1991) 54 Cal.3d 707, 718.) Each of the enumerated factors is a factual matter.
The court was required to determine whether a valid reason existed and actually prompted
the exercise of each questioned peremptory challenge. (Id. at p. 720.) These
determinations are factual, not legal, in nature. The trial court’s proper focus is the
subjective genuineness of the nondiscriminatory reasons stated by the prosecutor.
(People v. Reynoso (2003) 31 Cal.4th 903, 924.) “[T]he issue comes down to whether the
trial court finds the prosecutor’s race-neutral explanations to be credible.” (Miller-El v.
Cockrell (2003) 537 U.S. 322, 339 [123 S.Ct. 1029].) The prosecutor’s genuineness and
credibility are also factual matters. In short, the remand exclusively entailed factual
matters and factual determinations and defendant’s presence would have contributed to
both the fairness and accuracy of the procedure.
       We note that the Batson/Wheeler motion was made and heard at the bench. Thus,
had the trial court not committed its original error of failing to ask the prosecutor her
reasons for exercising a peremptory challenge against Prospective Juror No. 4, defendant
would not have been personally present for the prosecutor’s explanation, any response by
defense counsel, or the trial court’s ruling. However, there was far less, if any, need for
defendant’s presence at that time because voir dire would have been fresh in the minds of
counsel and the court, and the court could have observed the remaining prospective jurors
when considering the prosecutor’s sincerity. During the remand hearing, the
characteristics of individual prospective jurors and the mix of prospective jurors were not
fresh in the minds of the court or counsel. The court and the prosecutor acquired some
degree of recollection by reading the reporter’s transcript of voir dire, but defense counsel
had no pertinent recollection even after reading the transcript. Defendant’s presence was
therefore necessary to contribute to the fairness of the procedure.
       Accordingly, we once again conditionally reverse for the trial court to conduct the
same type of hearing, this time in defendant’s presence. Although defendant argues for


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an outright reversal, citing the passage of time and faded memories, an attempt should be
made to perform the second and third stages of the Batson/Wheeler process in defendant’s
presence. As noted in People v. Johnson (2006) 38 Cal.4th 1096, 1103, and our prior
opinion in this case, if the trial court reinstates the judgment after performing the
Batson/Wheeler analysis following a limited remand, the defendant may appeal that ruling
and a third reversal may be appropriate.
                                      DISPOSITION
       The judgment is reversed and the cause is remanded to the trial court, which
must—in the presence of defendant Ward—attempt to perform the second and third
stages of the Batson/Wheeler analysis. The court should require the prosecutor to explain
her peremptory challenge of Prospective Juror No. 4. If the prosecutor offers a race-
neutral explanation, the court must attempt to make a sincere and reasoned evaluation of
that explanation. If the court finds that, due to the passage of time or any other reason, it
cannot adequately address the issues at this stage or make a reliable determination, or if it
determines that the prosecutor improperly challenged Prospective Juror No. 4, it should
set the case for a new trial. If it finds the prosecutor exercised her peremptory challenges
in a permissible fashion, it should reinstate the judgment.
       NOT TO BE PUBLISHED.


                                                   LUI, J.
We concur:


       ROTHSCHILD, P. J.


       CHANEY, J.




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