Filed 6/17/15
                               CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SECOND APPELLATE DISTRICT

                                        DIVISION SIX


THE PEOPLE,                                                2d Crim. No. B254084
                                                         (Super. Ct. No. MA053343)
     Plaintiff and Respondent,                              (Los Angeles County)

v.

DEIDRA ALLEN,

     Defendant and Appellant.



                  Deidra Allen appeals her conviction by jury of two counts of premeditated
                                                                  1
attempted murder (Pen. Code, §§ 664, subd. (a)/187, subd. (a)) , assault with a deadly
weapon (§ 245, subd. (a)(1)), and burglary (§ 459) with special findings that she
personally used a deadly and dangerous weapon within the meaning of section 12022,
subdivision (b)(1). The trial court denied probation and sentenced appellant to two
concurrent life terms plus seven years state prison. Appellant contends that the trial court
erred in denying her Batson/Wheeler motions (Batson v. Kentucky (1986) 476 U.S. 79 [90
L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258) after the prosecutor exercised
peremptory challenges to excuse three African-American female prospective jurors who
had close family members with mental health issues. We affirm.




1
    All statutory references are to the Penal Code.
                                            Facts
              Appellant, a jealous and spurned lover, devised an intricate plan to murder
her boyfriend's common law wife and three-year-old son. The plan was so bizarre that
the prosecutor was concerned that jurors would perceive appellant to be suffering from
mental health issues and sympathize with her.
              In 2010, Mynor Plato had an affair with appellant. Plato lived with Maria
(Angie) Vasquez and their son, G. Appellant wanted an exclusive relationship and, in
October 2010, told Angie that she and Plato were having sexual relations. After Angie
and G. moved away, appellant left messages on Angie's phone to remind her that
appellant and Plato were still seeing each other. Some of the voicemail messages
included recordings of appellant and Plato having sex.
              Plato reconciled with Angie which angered appellant. Appellant had
someone tell Plato that she had killed herself. After Plato moved Angie and G., to
Lancaster, appellant reappeared and told Plato that she was pregnant with his child.
Appellant visited Plato at work and called him incessantly.
              On the morning of July 1, 2011, after Plato left for work, appellant
"banged" on his front door wearing a John McCain mask. Plato's cousin, Liliana Garcia,
opened the door. Appellant forced her way in and struck Liliana in the face with a heavy
toy gun. Appellant was wearing a white jumpsuit and gloves, a construction utility belt, a
wig and sunglasses. Under her clothes, appellant wore a fake baby bump so she looked
pregnant. Appellant had a clipboard with notes, a digital recorder, two pairs of
handcuffs, and a plastic bottle of white liquid.
              Liliana, Liana's daughter, and the daughter's fiancé restrained appellant
while Angie called 911. Before the sheriff arrived, appellant asked for the plastic bottle
back and poured the liquid out. Sheriff's investigators determined that the bottle had
trace amounts of Zolpidem (Ambien) and morphine.
              Sheriff's deputies found a Toyota Camry parked nearby with tape over the
license plates and the vehicle identification number. The car keys, a laptop, a car rental
contract signed by "D. Allen," appellant's purse, two cell phones, a receipt for the John


                                              2
McCain mask, and a notebook were in the trunk. Sheriff's deputies also found a
prescription for Zolpidem and phone memory cards with sonogram videos of a pregnant
woman and a video of appellant and Plato having sex. The digital recorder, which was
on appellant's person, had a recording in Spanish. The recording instructed Angie to
drink the liquid in the plastic bottle and leave a voicemail that G. was Plato's son and that
Angie could not live like this anymore. The recording included a checklist for appellant
to follow and stated that once Angie was drugged, appellant would smother G. and kill
Angie so it looked like a murder-suicide.
                                      Batson/Wheeler
              Appellant, an African American woman, argues that the trial court erred in
denying her Batson/Wheeler motion after the prosecutor excused two female African-
American prospective jurors. The trial court denied the motion because there was no
prima facie showing of purposeful discrimination. When the prosecutor exercised a
peremptory challenge to excuse a third African-American female prospective juror,
appellant renewed the Batson/Wheeler motion. Denying the motion, the trial court stated:
"I don't find that the challenges are race based at this point. They seem to be race neutral
reasons."
              The use of peremptory challenges to remove prospective jurors based solely
on race violates both the federal and state Constitutions. (People v. Chism (2014) 58
Cal.4th 1266, 1313.) The question of whether a peremptory challenge has been
improperly exercised requires a three-step Batson inquiry. (Ibid.) " 'First, the trial court
must determine whether the defendant has made a prima facie showing that the
prosecutor exercised a peremptory challenge based on race. Second, if the showing is
made, the burden shifts to the prosecutor to demonstrate that the challenges were
exercised for a race-neutral reason. Third, the court determines whether the defendant
has proven purposeful discrimination. The ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent of the strike. [Citation.] The
three-step procedure also applies to state constitutional clams.' [Citation.]" (Ibid.)
              We analyze appellant's Batson/Wheeler contentions in detail:


                                              3
Prospective Juror 6478
              Prospective Juror 6478, an African-American female was a police captain
and was married to a sergeant in the Los Angeles Police Department. She had three
children: a fitness instructor, a child psychologist, and a college student. The juror stated
that her brother had drug related convictions and that the brother's sons had convictions
for unknown offenses. The prosecutor excused Prospective Juror 6478 after the juror
stated that her daughter had a history of mental illness and that her ex-husband cheated
on her.
Prospective Juror 8006
              Prospective Juror 8006, a single African-American female, had no children,
lived in Lancaster, and worked as a healthcare provider. The juror had family members
who had been charged with crimes but did not know what the crimes were. The
prosecution used a peremptory challenge to excuse Prospective Juror 8006 after she
stated that her aunt had a history of mental health issues and "I don't know if my mom . . .
does."
Prospective Juror 2341
              Prospective Juror 2341, an African-American female, was married, worked
as a school bus driver, and had a four-year-old son. Members of the juror's family,
including her father, brother, and cousin, had prior arrests for crimes she could not recall.
The juror knew of friends and family members who had extra-marital affairs. The
prosecutor struck Prospective Juror 2341 after she stated that she was close to an uncle
and a cousin who suffered from mental health issues.
                               First Batson/Wheeler Motion
              After the prosecutor used his second and fourth peremptory challenge to
excuse Prospective Jurors 6478 and 8006, defense counsel made a Batson/Wheeler
motion on the ground that "two of the peremptories have gone to African American
females. My client Deidra Allen is an African American female." Counsel argued that
Prospective Juror 6478 was a police captain and "seemed like a very solid



                                              4
juror . . . . " Counsel argued that Prospective Juror 8006 was African- American and her
answers on voir dire "were not in any way extreme or out of the ordinary . . . . "
                The trial court ruled that appellant had not established a prima facie case of
discrimination and asked the prosecutor if he wished to be heard. The prosecutor
explained that Prospective Jurors 6478 and 8006 were excused because they had close
family members with mental health problems. It was a concern because appellant's
criminal acts were "very out of the ordinary. She's wearing a John McCain mask when
she goes to commit this crime. She is pretending to be pregnant. She has a fake baby
bump on. I don't want any of the jurors sympathizing with people they perceive to have
mental health issues. That is why I specifically asked the question, does anybody have
close family members or friends who have suffered from mental health issues[?]
[¶] And it happens that the four people who have said yes to that question are African
American females. [¶] So there are two that I have already kicked. And just to give the
court some notice, I do plan on kicking the other two that have had family with mental
health issues. [¶] In addition to that, [Prospective Juror No. 6478's] husband had . . . an
affair on her . . . . "
                Where the trial court denies a Batson/Wheeler motion based on defendant's
failure to make a prima facie showing of group bias, we review the record to determine
whether there is substantial evidence to support the ruling. (People v. Griffin (2004) 33
Cal.4th 536, 555.) Because the Batson/Wheeler motions call upon a trial judge's personal
observations, the ruling is given considerable deference on appeal. (People v. Howard
(1992) 1 Cal.4th 1132, 1155.)
                The trial court correctly found that the peremptory challenge of two
African-American females, standing alone, did not make a prima facie case of purposeful
discrimination. (See People v. Bonilla (2007) 41 Cal.4th 313, 342-343 [prosecutor
struck the only two African-Americans in a 78-person jury pool; no prima facie showing
of purposeful discrimination]; People v. Farnam (2002) 28 Cal.4th 107, 134-135
[peremptory challenge against five prospective jurors, four of which were African-
American, did not make a prima facie showing of racial bias]; People v. Arias (1996) 13


                                               5
Cal.4th 92, 136, fn. 15 [assertion of group bias based on number and order of minority
exclusion and final jury composition did not establish prima facie case]; People v. Bell
(2007) 40 Cal.4th 582, 597-598 [no inference of discrimination where prosecutor excused
two out of the three African–American women on jury panel].)
              "[T]he only bases for establishing a prima case cited by defense counsel
were that all of the challenged prospective jurors were Black and either had indicated that
they could be fair or impartial or in fact favored the prosecution. This is insufficient.
[Citations.]" (People v. Turner (1994) 8 Cal.4th 137, 167, overruled on other grounds in
People v. Griffin, supra, 33 Cal.4th at p. 555, fn. 5.) Although African-American women
constitute a cognizable group, the challenge of one or two prospective jurors rarely
suggests a pattern of impermissible group bias. (People v. Bell, supra, 40 Cal.4th at p.
598.) That is the case here. When appellant made the first Batson/Wheeler motion, two
African-American women and an African-American man were still seated on the jury.
The trial court noted that "the other two jurors that were kicked [by the prosecution] were
-- 7039 was a female white. And 6083 was a male white."
              The trial court invited the prosecutor to "preserve the record" and state his
reasons for excusing the two female African-American jurors. This is the preferred
practice but not required. (People v. Scott (2015) ___ Cal. 4th ___ [2015 DJDAR 6230,
6237]; People v. Bonilla, supra, 41 Cal.4th at p. 343, fn. 13.) It did not convert what was
a first-stage Batson/Wheeler case into a third-stage case. (People v. Taylor (2010) 48
Cal.4th 574, 616.) "[T]he prosecutor's race-neutral reasons for the excusals confirmed
the trial court's finding that there was insufficient evidence to permit the court to draw an
inference that discrimination had occurred." (People v. Hawthorne (2009) 46 Cal.4th 67,
80.) The trial court did not err in finding that appellant failed to establish a prima facie
case of discrimination. (People v. Scott, supra, __ Cal.4that p. ___ [2015 DJDAR at p.
6239].)
                              Second Batson/Wheeler Motion
              After the prosecutor used his next peremptory challenge (fifth peremptory
challenge) to excuse Prospective Juror No. 2341, appellant made a second


                                              6
Batson/Wheeler motion. Defense counsel argued that "[j]uror 6478 [and] juror 8006,
both African-American females, . . . were excused by the prosecution. [¶] Now their
next, or their 5th, peremptory goes to juror 2341, an African-American female. . . . [S]he
is a school bus driver. Hasn't been on a jury. She said that yes, she's had family
members that were arrested but she told your honor in her opinion they were treated
fairly. [¶] . . . There is a reasonable inference these challenges are being exercised for
not acceptable reasons."
              The prosecution responded that "the biggest issue in my case is a jury
feeling some sort of sympathy towards the defendant or speculating that she may have
some sort of mental health issue. [¶] I have specifically asked -- the court has followed
up on my original question of mental health. The reason that I . . . asked that question is
because that is the biggest issue in my case. [¶] Juror Number 2341 said that her uncle
and her cousins have had mental health issues. In addition to that, she did say that her
family had been arrested."
              Denying the Batson/Wheeler motion, the trial court found that appellant
had not established a prima facie case and that the peremptory challenges were based on
race neutral reasons.
              Appellant contends that the use of three peremptory challenges to strike
female African-American prospective jurors supports the inference of purposeful racial
               2
discrimination. (Johnson v. California (2005) 545 U.S. 162, 170 [162 L.Ed.2d 129, 139]
.) The argument fails because the peremptory challenges were race-neutral. After
Prospective Jurors 6478, 8006, and 2342 were excused, two African-American women

2
  The difference between Wheeler and Batson, if any, concerns the standard for
determining whether a prima facie case of group bias has been shown. Wheeler requires
a "strong likelihood" of discrimination while Batson states that a reasonable "inference"
is sufficient. (People v. Wheeler, supra, 22 Cal.3d at p. 280; Batson v. Kentucky, supra,
476 U.S. at p. 96 [90 L.Ed.2d at p. 89].) A reasonable inference is established "'by
showing that the totality of the relevant facts gives rise to an inference of discriminatory
purpose.' [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129,
138].)


                                             7
and an African-American man remained on the jury. An African-American man was also
selected as an alternate juror. (See e.g., People v. Taylor (2010) 48 Cal.4th 574, 614-615
[after prosecutor excused one African-American prospective juror, another African-
American female was seated on jury; no inference of discriminatory purpose].) When the
Batson/Wheeler motions were argued, appellant did not respond to or challenge the
                                                    3
prosecutor's stated reasons for excusing the jurors. The burden of persuasion to prove
the existence of purposeful discrimination " 'rests with, and never shifts from, the
opponent of the strike.' [Citation.]" (Johnson v. California, supra, 545 U.S. at p. 171
[162 L.Ed.2d at p. 139].) On appeal, it is presumed that the prosecutor exercised the
peremptory challenges in a constitutional manner. (People v. Manibusan (2013) 58
Cal.4th 40, 76.)
              Employing a "comparative juror analysis," appellant argues, for the first
time on appeal, that the prosecutor's explanation was pretextual because the prosecutor
did not strike Prospective Juror 4783 who, on voir dire, said that she was depressed after
her ex-fiancé cheated on her. The prosecutor also declined to strike Prospective Juror
No. 2028 who reported that the brother of her sister-in-law was schizophrenic.




3
  Appellant asserts that the size of the jury pool and the number and sequence of
peremptory challenges creates a "statistical" inference of purposeful discrimination. We
reject the argument because the prosecutor used three peremptories to excuse African-
American women but accepted a jury that included two African-American women and a
male African-American. The trial court memorialized its Batson/Wheeler findings as
follows: "Currently the defendant is a female African American. Juror number three is a
female African American, juror number ten, same thing, female African American, juror
number 11 is a male African American. And [juror] alternate number " one is a male
African American." Our Supreme Court has stated that the "ultimate inclusion on the
jury of members of the group allegedly targeted by discrimination indicates 'good faith' in
the use of peremptory challenges, and may show under all the circumstances no
Wheeler/Batson violation occurred. [Citation.]" (People v. Garcia (2011) 52 Cal.4th
706, 747; see People v Turner, supra, 8 Cal.4th 137, 168 [prosecutor used four of six
peremptories against African-Americans, but accepted a jury that, as impaneled, included
five African-Americans].)


                                             8
               "'[C]omparative juror analysis is but one form of circumstantial evidence
that is relevant, but not necessarily dispositive, on the issue of intentional discrimination.'
[Citation.]" (People v. Chism (2014) 58 Cal.4th 1266, 1318.) Our courts have warned
that comparative juror analysis on a cold appellate record may be misleading when the
alleged similarities are not raised at trial. (Snyder v. Louisiana (2008) 552 U.S. 472, 483
[170 L.Ed.2d 175, 184]; People v. Lenix (2008) 44 Cal.4th 602, 622.) That is the case
here.
               The prosecutor excused Prospective Jurors 6478, 8006, and 2342 because
they had close family members with mental health issues and could be sympathetic to the
defense. Appellant contends that the prosecutor should have excused Prospective Juror
2028 for the same reason and the failure to do so shows discriminatory purpose. We
disagree. Prospective Juror 2028 stated that "my sister-in-law's brother is schizophrenic"
but that is not the same as a close family member, i.e., a mother or an aunt (Prospective
Juror 8006), a daughter (Prospective Juror 6478), or a close uncle and cousin
(Prospective Juror 2341). The prosecutor was not concerned about a prospective juror's
distant relative.
               Appellant points out that Prospective Juror 4783 was depressed about her
ex-fiance's infidelity but that is not the same as an ongoing mental health issue affecting
the juror's ability to be fair. Unlike the other jurors who were excused, Prospective Juror
4783 did not have a close family member with a history of mental illness. Appellant
makes no showing that the prosecutor was systematically excluding African-American
women from the jury.
               "Whatever use comparative juror analysis might have in a third-stage case
for determining whether a prosecutor's proffered justifications for his strikes are
pretextual, it has little or no use where the analysis does not hinge on the prosecution's
actual proffered rationales. . . " (People v. Bonilla, supra, 41 Cal.4th at p. 350.) A
prospective juror may be excused based upon facial expressions, gestures, hunches and
for arbitrary or idiosyncratic reasons, so long as the reason is not based on impermissible
group bias. (People v. Lenix, supra, 44 Cal.4th at p. 613.)


                                               9
              " 'Step three of the Batson inquiry involves an evaluation of the prosecutor's
credibility, [citation] and 'the best evidence [of discriminatory intent] often will be the
demeanor of the attorney who exercises the challenge.' [Citation.] In addition, race-
neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g.,
nervousness, inattention), making the trial court's first-hand observations of even greater
importance. In this situation, the trial court must evaluate not only whether the
prosecutor's demeanor belies a discriminatory intent, but also whether the juror's
demeanor can credibly be said to have exhibited the basis for the strike attributed to the
juror by the prosecutor. "We have recognized that these determinations of credibility and
demeanor lie ' "peculiarly within a trial judge's province " ' [citations] . . . ." (People v.
Lenix, supra, 44 Cal.4th at p. 614.) On review, we give great deference to the trial court
in distinguishing bona fide reasons for sham excuses. (Ibid.)
              Here, the prosecutor excused any prospective juror who had a close family
member with mental health issues. Because of appellant's bizarre conduct, the prosecutor
feared that such a juror would speculate about appellant's mental health and view her as a
                    4
sympathetic figure. It was a legitimate concern. (See e.g., People v. Taylor, supra, 48
Cal.4th at pp. 641, 644 [death penalty case; peremptory challenge of female African-
American prospective juror who was psychiatric nurse].) "All that matters is that the
prosecutor's reason for exercising the peremptory challenge is sincere and legitimate,


4
  This was not the typical lover's spat. Appellant pretended to be pregnant, disguised
herself in a John McCain mask and white jumpsuit, and tried to kill Plato's common law
wife and son by forcing her way into the house and drugging them. Appellant carried a
clipboard with a murder script that said: "I have been waiting for a long time for my
husband, for my mate, my partner, my own, my dream. But you will die here today."
Appellant had a list of things to do such as "take the mom's [Angie's] head." "Have her
lick her lips, if you can pull out her tongue, and get some saliva and kiss the baby's [G.'s]
forehead so it looks like the mom is kissing her baby good-bye before she kills him." In
another note, appellant wrote, "get the baby's hand and make sure you scratch the mom so
that her D.N.A and her blood is underneath [the baby's] fingernails so it looks like he is
clawing mom's [Angie's] hand off while she is smothering him."



                                               10
legitimate in the sense of being nondiscriminatory. '[A] "legitimate reason' is not a
reason that makes sense, but a reason that does not deny equal protection. [Citations.]'
[Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 924.)
                                         Conclusion
              Having reviewed the jury voir dire record, we conclude that appellant
simply did not persuade the trial court to draw the inference that peremptory challenges
were used for a discriminatory purpose. (People v. Taylor, supra, 48 Cal.4th at pp. 642-
643; Johnson v. California, supra, 545 U.S. at p. 168 [162 L.Ed.2d at p. 138].) "[T]he
only basis for establishing a prima facie case cited by defense counsel was that the
prospective jurors - like defendant - were Black. This is insufficient. [Citations.]"
(People v. Box (2000) 23 Cal.4th 1153, 1189.)
              Appellant twice failed to make a prima facie showing of group/racial bias.
The record further shows that the prosecutor's reasons for excusing Prospective Jurors
6478, 8006, and 2342 were race-neutral and credited by the trial court. While statistics
may play a role in establishing a prima facie case of discrimination, the trial court is
permitted to consider a much wider range of factors, not only drawing upon its
contemporaneous observations of the venire and voir dire, but also by considering the
prosecutor's demeanor, how reasonable or improbable the reasons are and whether they
have some basis in trial strategy, and the court's own experiences as a lawyer and bench
officer. (People v. Lenix, supra, 44 Cal.4th at p. 613.)

       We amplify on the cogent observations in Lenix, supra, and Wheeler, supra. In
our view, appellate review of Batson-Wheeler claims is not suited to a pure academic or
conventional inquiry. Of course, we follow the law as given to us by our Supreme
Courts. Ideally, insightful appellate review is born of experience in picking a jury.
Picking a jury is an art. It cannot be learned out of a book. The holdings of Batson-
Wheeler should be tempered by considerations inherent in the subtle nature of picking a
jury. "Judging" prospective jurors often turns on not just what the juror says, but on how
he or she says it. There is body language to consider, inflection and tone of voice, facial


                                             11
expressions, eagerness or nonchalance in answering questions, attire, tattoos, etc. These
considerations will never appear on the record. But they most certainly are taken into
consideration by counsel in picking a jury.
          The very facts of this case illustrate just why our Supreme Courts have given
"great deference" to the trial court's Batson-Wheeler decisions. The conventional
wisdom is that no prosecutor should excuse a prospective juror who is a peace officer, let
alone a police captain who is married to a sergeant in law enforcement. Does the fact that
the police captain is an African American woman trump her years of law enforcement
experience? Or is it the fact that she has a daughter with a history of mental illness that
trumps her years of law enforcement experience? Appellate counsel isolates the Batson-
Wheeler inquiry, focuses only on race, and contends that prospective juror 4678 should
never have been excused by the prosecutor because it was based solely on race. If the
trial court so found, no one could say that such a decision would be unreasonable or
erroneous. Of course, an appellate court never sees these cases because a new jury is
impaneled. Any prosecutor who exercises a challenge based solely upon race should, in
our opinion, suffer consequences beyond the remedy provided by Batson-Wheeler. A
prosecutor is a sworn law enforcement officer and an officer of the court. Circumventing
the letter and spirit of Supreme Court cases is not consistent with a prosecutor's sworn
duties.
          But, appellate review should not "turn" on race in isolation. The prosecutor's
articulated rationale, and the similar rationale for excusing other female African
American prospective jurors with similar family "mental health issues," is not only
reasonable, it is consistent with the stated goal of procuring an unbiased jury that has no
experience with mental health issues. The trial court judge, with his years of felony trial
experience, credited this explanation. This rings true. The prosecutor accepted the panel
with two other female African American jurors. This hardly shows that the decisions to
excuse the three jurors were motivated solely on race. (People v. Scott, supra, ___
Cal.4th at p. ___ [2015 DJDAR at p. 6239].)


                                               12
              The Batson/Wheeler "issue before us turns largely on an 'evaluation of
credibility.' [Citation.] The trial court's determination is entitled to 'great deference,'
[citation] and 'must be sustained unless it is clearly erroneous,' [citation]." (Flekner v.
Jackson (2011) 562 U.S. __, __ [179 L.Ed.2d 374, 377].) No such showing has been
made.
              The judgment is affirmed.
              CERTIFIED FOR PUBLICATION.



                                                           YEGAN, J.
We concur:


              GILBERT, P.J.



              PERREN, J.




                                              13
                               Charles A. Chung, Judge

                        Superior Court County of Los Angeles

                           ______________________________


             Gene D. Vorobyov, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A.
Miyosi, Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.




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