     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          September 5, 2019

                               2019COA137

No. 15CA1517, People v. Ojeda — Constitutional Law —
Fourteenth Amendment — Equal Protection; Juries —
Peremptory Challenges — Batson Challenges

     A division of the court of appeals considers whether a trial

court erred in denying a defendant his Batson v. Kentucky, 476 U.S.

79 (1986), challenge when a prosecutor removed a Hispanic juror

from the prospective jury.

     The majority agrees that the trial judge cannot supply its own

reasons to justify a juror’s removal and that reversal is appropriate,

albeit for different reasons. Judge Fox’s opinion discusses various

approaches employed in examining race-based and race-neutral

reasons for a Batson challenge and concludes that if a peremptory

strike was motivated in substantial part by discriminatory intent,

then the defendant has met his burden of showing purposeful
discrimination as articulated in the third Batson step. Judge

Harris’ special concurrence concludes that reversal is required

because the prosecution failed to state a race-neutral reason for the

juror strike, as required by the second Batson step. Accordingly,

the majority reverses the judgment and remands for a new trial.

     The dissent concludes that the case should be remanded to

the trial court for it to conduct the three-step Batson analysis and

make the required factual findings as the trial court’s prior Batson

analysis failed to make sufficient factual findings about whether (1)

Ojeda made a prima facie showing that the peremptory strike was

based on race; (2) the prosecutor provided a race-neutral

explanation; and (3) Ojeda established purposeful discrimination.
COLORADO COURT OF APPEALS                                     2019COA137


Court of Appeals No. 15CA1517
City and County of Denver District Court No. 13CR4235
Honorable Kenneth M. Laff, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ray Ojeda,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division IV
                           Opinion by JUDGE FOX
                          Harris, J., specially concurs
                           Hawthorne, J., dissents

                        Announced September 5, 2019


Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Elizabeth Griffin, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant Ray Ojeda appeals the judgment of conviction

 entered on jury verdicts finding him guilty of various charges. He

 contends that the trial court erred in denying his Batson v.

 Kentucky, 476 U.S. 79 (1986), challenge when the prosecutor

 removed a Hispanic prospective juror from the venire. Based on the

 record before us, we agree that the court’s denial of Ojeda’s Batson

 challenge was erroneous. Accordingly, we reverse the judgment of

 conviction and remand for a new trial. Given this disposition, we

 need not address Ojeda’s remaining challenges.

                         I.    Applicable Facts

¶2    In 2015, after a six-day trial, a jury found Ojeda guilty of first

 degree murder, second degree kidnapping, and first degree sexual

 assault for events that occurred in 1997. Ojeda’s trial team

 advanced a mistaken identity defense and strenuously challenged

 the prosecution’s reliance on old evidence.

¶3    During jury selection, the prosecutor first attempted to excuse

 Juror R.P., a Hispanic male seated in the seventh jury position, for

 cause based on (1) “the content of his questionnaire”; (2) “remarks

 that he made in open court”; and (3) “his demeanor.” She explained


                                    1
 that Juror R.P. expressed a “bias” against the criminal justice

 system and “visibly showed hesitation” when asked whether he

 could be fair. Defense counsel objected, noting that the prosecutor

 was mischaracterizing Juror R.P.’s answers, and highlighted Juror

 R.P.’s disclosure that he could be objective. Defense counsel added

 that Juror R.P. was one of the few Hispanic males on the venire.

¶4    The court then asked the prosecutor to make a further record

 concerning the for-cause challenge to prospective Juror R.P. and

 the prosecutor stated,

           With regard to what he put on his [juror]
           questionnaire, I found it to be significant . . .
           he has devoted his career to . . . quality of
           healthcare for individuals. And that, in my
           mind, very much dovetailed with [being] . . . a
           man of very great conviction . . . . He gave our
           system the lowest rating of anyone who has
           been asked to offer a score. I believe his score
           was 4. And when I asked him about the
           linkage between his low confidence in the
           system and whether or not he could be fair, he
           visibly showed hesitation. . . . [And,] when you
           look at that in-court behavior against what is
           clearly his commitment to his job, in terms of
           serving people of color and what he talked
           about in terms of the defendant being a person
           of color — he is himself a person of color — I
           thought that the totality of the record indicated
           that he has a distinctive leaning, that he


                                   2
            himself said he would have trouble in listening
            to the evidence.

¶5    Defense counsel immediately responded that the prosecutor

 had “mischaracterized” Juror R.P.’s answers and noted that Juror

 R.P. had expressly stated that he could set aside his experiences

 and “be objective” and that he

            clearly indicated he would follow the rules
            given to him by the Court. He’s also one of the
            few Hispanic men on this entire jury panel,
            and under Batson, I don’t know that it’s
            appropriate to exclude him because he’s
            Hispanic and may have something in common
            with the defendant in his heritage.

¶6    The court denied the prosecutor’s for-cause challenge, finding

 that nothing in Juror R.P.’s feelings or life experiences indicated he

 would not follow the court’s rules or reach a verdict based on the

 evidence. The court also noted that Juror R.P. is “certainly entitled

 to believe that people of color are not well-served in our criminal

 justice or medical system. There’s nothing in his answers that

 those feelings of his life experience will affect his judgment in the

 case, that he won’t follow the rules set forth by the Court. There’s a

 completely inadequate record to challenge him in this case.” The

 prosecutor then requested that the court repeat its ruling “with

                                    3
 regard to the Batson issue,” and the court clarified that it “didn’t

 really reach [that] issue.” Instead, the court expressed that it

 “didn’t think it was a founded challenge, regardless of [Juror R.P.’s]

 personal ethnicity. I just thought that he had attitudes that he was

 certainly entitled to have, and that there was not anywhere near a

 sufficient record that they would affect his ability to be a fair juror.”

 The prosecutor did not question Juror R.P. again before later using

 a peremptory challenge to excuse Juror R.P.

¶7    The prosecutor later used her fifth peremptory challenge to

 excuse Juror R.P. Defense counsel asserted a Batson challenge

 because he was “obviously concerned about excusing Hispanic

 males from the jury.” In response, the prosecutor first incorporated

 her previous record on Juror R.P. (from the earlier for-cause

 challenge), then offered the following explanation:

            To be utterly disclosing, we are pursuing a
            strategy of trying to select jurors who are
            establishmentarian, let’s say, who are in favor
            of the system that we have. And that’s one of
            the reasons I used a rate-the-system type of
            device during my voir dire.

            [Juror R.P.] gave our system the lowest rating
            possible — rather, the lowest rating that


                                     4
           anyone had given, which was a number 4,
           which is a matter of some concern.

           [T]he jury is going to hear that there were
           errors on the part of the police department in
           terms of not having been able to locate the
           rape kit in this case within the property
           bureau for a period of years. I anticipate some
           very vigorous cross-examination of . . . a
           forensic serologist, in particular, and I
           anticipate that the defense is going to be very
           strongly attacking the Denver Police
           Department, the Denver Police Crime Lab, and
           that it will really build on the statements that
           have already been made during jury selection
           that critique the system as a whole as a way to
           build reasonable doubt in to secure a not
           guilty verdict.

           And so what [Juror R.P.’s] concerns were
           about the system — and he said, I have a bias
           against the system. And so the concerns that
           we have do not relate in any way to the color of
           the skin or his national origin, but rather to
           his stated reservations in that regard when we
           know what the evidence will be and when we
           are now getting some pretty strong clues about
           what the defense will be.

¶8    The prosecutor continued by noting the racial composition of

 the jury box and of the group of prospective jurors recently struck

 by the defense. She then added:

           Your Honor, if I could wrap up with two other
           thoughts that are very strongly informing our
           desire to exercise a strike as to [Juror R.P.].
           He’s a polished, educated, and, I believe,
                                   5
           persuasive individual. And because of his
           presentation in that regard, the concern that
           we have is that the critique of the criminal
           justice system that he has talked about, he
           could be very, very strongly persuasive in the
           jury room. That’s race neutral. We see him as
           a person who could very much persuade
           others of the reservations that he has. And
           given what we anticipate by way of the
           evidence, that is the basis for attempting to
           eliminate him.

           [And] I anticipate the defense is going to make
           a very strong charge against the validity and
           reliability of the DNA results. . . . And the fact
           that the defendant is a Latino male, if the jury
           is persuaded that there is not a DNA
           connection between . . . the forensic evidence
           in this case and this defendant, it seems to me
           that the comments that [Juror R.P.] made
           about having concerns about racial profiling
           will really come into play in the sense that I
           think that he may then steer the jury towards
           a race-based reason why Mr. Ojeda, you know,
           was charged in the case, and that is because
           [Juror R.P.] had talked about racial profiling in
           conjunction with his other considerations.
           Since I think that’s where the defense is going
           — you know, we have to forecast at this stage
           of the game, and those are all of the race-
           neutral reasons why we believe that a strike is
           constitutional and not racially motivated as to
           [Juror R.P.].

¶9    Defense counsel responded that “[w]ith respect to [Juror R.P.],

 I think [the prosecutor] made my argument for me. She’s

 concerned about a race-based argument being made by [Juror R.P.]
                                   6
  because he’s Hispanic.” In explaining why the peremptory

  challenge was based on race-neutral factors, the court stated:

            The Court will deny the challenge for cause as
            to [Juror R.P.], but there are abundant
            race-neutral reasons for a peremptory to be
            exercised. First of all, he too is a victim of a
            sex assault, as is his wife, and he struck the
            Court as remarkably unconcerned about those
            events in his own lifetime. His first thought
            when there was a discussion of the time [it
            has] taken to bring this case was that the
            victim had delayed disclosure. He does have
            an anti-law enforcement bend, so the Court
            finds there’s a sufficient racially neutral basis
            for the challenge.

¶ 10   Immediately following the court’s ruling, the prosecutor

  supplemented her record by noting that her notes reflected that

  when Juror R.P. heard the age of the case, he thought something

  might have gone wrong, which also caused her “particular concern.”

                     II.   Law and Review Standard

¶ 11   The Equal Protection Clause of the Fourteenth Amendment

  forbids a challenge to a potential juror based solely on race.

  Batson, 476 U.S. at 89; see also People v. Wilson, 2015 CO 54M,

  ¶ 10 n.4. When a party raises a Batson challenge, the trial court

  engages in a three-step analysis to assess the claim of racial

  discrimination. Wilson, ¶ 10. First, the opponent of the peremptory
                                    7
  strike must allege a prima facie case showing that the striking party

  struck the prospective juror on the basis of race. Id. Second, the

  burden shifts to the striking party to provide a race-neutral

  explanation for excusing the prospective juror. Id. The opponent is

  then given the opportunity to rebut the striking party’s explanation.

  Id.

¶ 12    At step three, the trial court must assess the striking party’s

  actual subjective intent and the plausibility of its nondiscriminatory

  explanations to determine whether the opponent has sufficiently

  established purposeful discrimination. Id.; see also Miller-El v.

  Dretke, 545 U.S. 231, 252 (2005). If the opponent’s “stated reason

  does not hold up, its pretextual significance does not fade because a

  trial judge . . . can imagine a reason that might not have been

  shown up as false.” Miller-El, 545 U.S. at 252.

¶ 13    Significantly, it is improper for a trial court to “sua sponte

  offer[] its own plausible reasons behind the peremptory strike[] at

  issue[.]” Valdez v. People, 966 P.2d 587, 592 n.11 (Colo. 1998); see

  also Miller-El, 545 U.S. at 252 (“The Court of Appeals’s and the

  dissent’s substitution of a reason for eliminating [the juror] does


                                      8
  nothing to satisfy the prosecutors’ burden of stating a racially

  neutral explanation for their own actions.”); People v. Rodriguez,

  2015 CO 55, ¶ 15 n.5 (concluding that the trial court never

  evaluated the validity of the prosecutor’s justification because it

  based its ruling on a different race-neutral explanation than the one

  offered by the prosecution).

¶ 14   We review steps one and two of a Batson challenge de novo.

  Rodriguez, ¶ 13. But, the trial court’s conclusion at step three is

  “an issue of fact to which an appellate court should defer, reviewing

  only for clear error.” Id. We will “set aside a trial court’s factual

  findings only when they are so clearly erroneous as to find no

  support in the record.” People v. Beauvais, 2017 CO 34, ¶ 22. If

  the record shows that the trial court failed to adequately conduct a

  Batson analysis, the appropriate procedure is to remand the case

  for more detailed findings by the trial court. Rodriguez, ¶ 21.

                                 III.   Analysis

¶ 15   In addressing the Batson challenge at issue, the trial court did

  not, as it should have, explicitly evaluate the prosecutor’s proffered

  reasons for striking Juror R.P. See Beauvais, ¶ 9; see also Batson,


                                        9
  476 U.S. at 98 (requiring the prosecutor to “articulate a neutral

  explanation related to the particular case to be tried”); Purkett v.

  Elem, 514 U.S. 765, 770 (1995) (Stevens, J., dissenting) (recognizing

  that the prosecutor’s explanation must relate to the case at issue).

  Instead, the court sua sponte offered two race-neutral reasons to

  justify striking Juror R.P.: (1) that Juror R.P. and his wife were not

  only sexual assault victims themselves, but that Juror R.P. seemed

  “remarkably unconcerned” about those life experiences; and (2) that

  Juror R.P. surmised the age of the case might be attributed to the

  victim’s delayed disclosure. Although the prosecutor later agreed

  with the second reason the court offered, the prosecutor did not

  initially offer either reason as a basis for her peremptory strike.

¶ 16   Before more closely examining the prosecutor’s reasons for the

  strike, it is useful to look to those jurisdictions that have

  encountered race-based and race-neutral reasons supporting a

  Batson challenge.

           A.   Multiple Justifications for a Peremptory Strike

¶ 17   Jurisdictions examining race-based and race-neutral reasons

  supporting a Batson challenge have generally considered three


                                     10
  approaches to the issue: (1) the per se approach; (2) a mixed-motive

  approach; and (3) the substantial motivating factor approach.

  Neither the United States Supreme Court nor Colorado’s Supreme

  Court has adopted a governing approach. See Snyder v. Louisiana,

  552 U.S. 472, 485 (2008) (not deciding whether mixed-motive

  analysis applies in a Batson context); Rodriguez, ¶ 15 n.5 (while the

  trial court had based its ruling on a different race-neutral

  explanation than the one the prosecution offered, the Colorado

  Supreme Court did not elaborate on how it would evaluate

  peremptory challenges where multiple reasons — race-based and

  race-neutral — are offered). I provide a brief overview of the three

  approaches.

¶ 18   The per se approach provides that a “a racially discriminatory

  peremptory challenge in violation of Batson cannot be saved

  because the proponent of the strike puts forth a non-discriminatory

  reason.” State v. Shuler, 545 S.E.2d 805, 811 (S.C. 2001); see also

  State v. King, 572 N.W.2d 530, 535 (Wis. Ct. App. 1997) (“[W]here

  the challenged party admits reliance on a prohibited discriminatory

  characteristic . . . a response that other factors were also used is


                                    11
  [in]sufficient rebuttal under the second prong of Batson.”). Thus,

  under the per se approach, an improper juror challenge cannot be

  saved.

¶ 19   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 [challenge the issue] by

  showing that the same action would have been taken in the absence

  of the improper motivation that the claimant has proven.” Howard

  v. Senkowski, 986 F.2d 24, 27 (2d Cir. 1993); see also Gattis v.

  Snyder, 278 F.3d 222, 232-35 (3d Cir. 2002); Wallace v. Morrison,

  87 F.3d 1271, 1274-75 (11th Cir. 1996); United States v. Darden, 70

  F.3d 1507, 1531-32 (8th Cir. 1995); Jones v. Plaster, 57 F.3d 417,

  420-22 (4th Cir. 1995). Stated differently,

            after the defendant makes a prima facie
            showing of discrimination, the state may raise
            the affirmative defense that the strike would
            have been exercised on the basis of the
            []neutral reasons and in the absence of the
            discriminatory motive. If the state makes such
            a showing, the peremptory challenge survives
            constitutional scrutiny.




                                   12
  Gattis, 278 F.3d at 233. Thus, a challenge under the mixed-motive

  approach may be saved if the state’s race-neutral reason is

  persuasive.

¶ 20   Under the substantial motivating factor approach, the proper

  inquiry is “whether the prosecutor was ‘motivated in substantial

  part by discriminatory intent.’” Cook v. LaMarque, 593 F.3d 810,

  814-15 (9th Cir. 2010) (quoting Snyder, 552 U.S. at 1212). “To

  determine whether race was a substantial motivating factor — that

  is, whether the defendant has shown ‘purposeful discrimination’ at

  Batson’s third step — the trier of fact must evaluate ‘the

  persuasiveness of the justification[s]’ offered by the prosecutor.” Id.

  Unlike the mixed-motive approach, this approach does not allow the

  prosecutor to argue that he would have challenged the juror even

  absent the discriminatory basis. See Kesser v. Cambra, 465 F.3d

  351, 376 (9th Cir. 2006) (Berzon, J., concurring).

¶ 21   The per se approach is the most faithful to the principles

  outlined in Batson, but the mixed-motive approach is, arguably,

  consistent with United States Supreme Court equal protection

  precedent in non-Batson contexts. See, e.g., Mt. Healthy City Sch.


                                    13
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (noting that the

district court should have determined whether the board of

education could show by a preponderance of evidence that it would

have reached the same decision not to rehire a teacher who engaged

in constitutionally protected speech in the absence of the teacher’s

protected conduct); see also Village of Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 271 (1977) (plaintiffs failed to carry

their burden of showing that a discriminatory purpose was a

substantial motivating factor in an agency’s decision to deny a

rezoning application). But see Lisa M. Cox, Note, The “Tainted

Decision-Making Approach”: A Solution for the Mixed Messages

Batson Gets from Employment Discrimination, 56 Case W. Res. L.

Rev. 769, 782-89 (2006) (describing the civil law origin of

mixed-motive analysis and arguing it should not be extended in the

Batson context). The United States Supreme Court does not appear

poised to adopt the per se standard in Batson cases. The Supreme

Court mentioned — without adopting — the substantial motivation

standard in Snyder in 2008, 552 U.S. at 485, and more recently, in




                                  14
  Tharpe v. Sellers, 583 U.S. __, 138 S. Ct. 545 (2018), it indicated

  skepticism about a per se rule.

¶ 22   In Tharpe, a black defendant moved to reopen his federal

  habeas corpus proceeding regarding his claim that the Georgia jury

  that convicted him of murdering his sister-in-law included a white

  juror who was biased against him and had voted for the death

  penalty because he was black. Id. at __, 138 S. Ct. at 546-47. In

  returning the matter to the court of appeals, the majority thought it

  debatable whether the defendant had shown prejudice even after

  producing an affidavit from the white juror that expressed racist

  opinions about blacks. Id. at __, 138 S. Ct. at 546-49. 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 death sentence. Id. The white

  juror later recanted the contents of his first affidavit. Id. It is

  unclear how much this recantation factored into the Court’s

  observation regarding the defendant’s showing of prejudice. But, it

  appears from Tharpe that a judgment of conviction need not be

  automatically, and always, set aside whenever discriminatory


                                     15
  animus is shown even though the evidence also shows that such

  animus may not have been the determinative factor ultimately

  leading to the conviction.

       B.     Discussion and Application of the “Substantial Motivating
                                Factor” Approach

¶ 23        Recognizing the inherent risk in predicting what the Supreme

  Court may do, in my view, the substantial motivating factor

  standard offers the most flexibility and is the one Colorado should

  adopt. Of course, most of the above-referenced cases pre-date the

  Supreme Court’s 2008 Snyder decision and the 2018 Tharpe

  decision. Thus, the reasoning of the pre-Snyder and pre-Tharpe

  opinions is not as helpful as is the Idaho Court of Appeal’s 2014

  decision in State v. Ornelas, 330 P.3d 1085 (Idaho Ct. App. 2014),

  which I find persuasive.

¶ 24        Ornelas read Snyder as setting “a guideline that a peremptory

  strike violates the Equal Protection Clause when the strike is

  ‘motivated in substantial part by discriminatory intent.’” Id. at

  1094 (quoting Synder, 552 U.S. at 485). In Ornelas, the

  government did not challenge that Ornelas made a prima facie

  showing under Batson. Id. The court thus proceeded to determine

                                       16
  if the prosecutor supplied a gender-neutral reason to strike Juror

  24, a female. Id. The prosecutor, admitting he wanted a woman on

  the panel, also offered that he struck Juror 24 because she was

  young, lacked life experience, and had a child near the victim’s age.

  Id. at 1091. The appellate court accepted the last three reasons as

  gender-neutral. Id. Adopting the Ninth Circuit’s approach in Cook,

  593 F.3d at 814-15, the Ornelas court inquired whether the strike

  was “motivated in substantial part by discriminatory intent.”

  Ornelas, 330 P.3d at 1093 (quoting Cook, 593 F.3d at 814-15). The

  Ornelas court noted that Juror 24’s gender could have substantially

  motivated the decision to strike her, but ultimately opted to remand

  for the trial court to supplement the record. Id. at 1097.

¶ 25   Ornelas held that when analyzing a Batson challenge where

  permissible and impermissible reasons are provided, the court

  should determine if the peremptory strike was motivated in

  substantial part by discriminatory intent. See id. at 1094. If the

  peremptory strike was motivated in substantial part by

  discriminatory intent, the challenger meets his burden of showing




                                   17
  purposeful discrimination, as articulated in the third Batson step.

  Id.

¶ 26    Here, although the prosecutor claimed concern with Juror

  R.P.’s views about the criminal justice system, Juror R.P.’s views

  were inextricably linked to being a Hispanic male who had

  experienced racial profiling, as he disclosed in his questionnaire.

  See State v. McRae, 494 N.W.2d 252, 257 (Minn. 1993) (concluding

  that the prosecutor failed to articulate a race-neutral basis

  supported by the record for excluding a black prospective juror who

  expressed doubt about a system that disproportionately affects

  black men); People v. Mallory, 993 N.Y.S.2d 609, 612 (N.Y. App. Div.

  2014) (holding that the People failed to offer a race-neutral reason

  for a peremptory strike where the prosecutor explicitly referenced

  race in explaining his reasons for challenging one of the prospective

  jurors and where the prospective juror responded by stating “that

  ‘[s]ometimes’ police officers unfairly target minorities”). But cf.

  Ananaba v. State, 755 S.E.2d 225, 227 (Ga. Ct. App. 2014)

  (concluding that the use of peremptory challenges on three African-

  American venire members because of their prior bad experiences


                                     18
  with law enforcement officers was a race-neutral reason). Where

  the clear focus of the prosecutor in striking Juror R.P. was Juror

  R.P.’s perception that the criminal justice system disproportionately

  affects people of color and those with mental disabilities, it is

  impossible not to conclude that the strike at issue was substantially

  motivated by Juror R.P.’s race. See Batson, 476 U.S. at 106

  (Marshall, J., concurring) (noting that “‘seat-of-the-pants instincts’

  may often be just another term for racial prejudice”).

¶ 27   The trial court aptly recognized that Juror R.P. was “entitled to

  believe that people of color are not well-served in our criminal

  justice” system, noting that his answers did nothing to indicate that

  “those feelings of his life experience will affect his judgments in the

  case, that he won’t follow the rules . . . There’s no indication he

  couldn’t follow my instructions and reach a verdict based on the

  evidence.” The trial court heard nothing from Juror R.P. to suggest

  that having experienced racial profiling himself would affect his

  ability to decide a case with no allegations of profiling based on the

  evidence presented. The prosecution’s concern that R.P. and

  defendant are “person[s] of color” would somehow lead R.P. to have


                                     19
  “trouble listening to the evidence” is precisely what Batson warned

  against:

               [T]he prosecutor may not rebut the defendant’s
               prima facie case of discrimination by stating
               merely that he challenged jurors of defendant’s
               race on the assumption — or his intuitive
               judgment — that they would be partial to the
               defendant because of their shared race.

  Batson, 476 U.S. at 97. And, as discussed below, the reasons the

  prosecutor articulated on the record are not the sort of race-neutral

  explanations the Supreme Court contemplated in Batson and later

  cases.

¶ 28       Attributing “a distinctive leaning” to Juror R.P., as this

  prosecutor did, because of his life experiences perpetuates the race-

  based stereotypes Batson eschewed. To the extent the prosecutor

  suggested that Juror R.P. “would have trouble in listening to the

  evidence,” the record soundly refutes that claim. See People v.

  Collins, 187 P.3d 1178, 1183 (Colo. App. 2008) (reversing where

  “[a]t least three of the race-neutral reasons articulated by the

  prosecutor are affirmatively refuted by the record[]”). Juror R.P.

  repeatedly reiterated that he would listen to all the evidence and

  follow the court’s instructions. The trial court recognized as much

                                       20
  in denying the prosecutor’s for-cause challenge. See Foster v.

  Chatman, 578 U.S. __, __, 136 S. Ct. 1737, 1749 (2016) (The

  Supreme Court’s “independent examination of the record” revealed

  that “much of the reasoning provided by [the prosecution had] no

  grounding in fact.”).

¶ 29   The prosecutor adopted the second reason the trial court

  supplied in allowing Juror R.P. to be struck related to his response

  to the delay issue.1 Although the court and the prosecution

  remembered only one reason Juror R.P. offered in speculating why



                          ———————————————————————
  1 The trial court’s first supplied reason to strike Juror R.P. — his
  lack of concern over his prior experience with sexual assault — is
  irrelevant, see People v. Rodriguez, 2015 CO 55, ¶ 15 n.5, where the
  prosecutor did not adopt it. As to Juror R.P.’s experience with
  sexual assault, the prosecutor was well aware of that experience
  from R.P.’s juror questionnaire and did not rely upon it in seeking
  to excuse him. Moreover, Juror K.P. was deemed to be a suitable
  juror even though his questionnaire disclosed that his daughter
  was the victim of “incest, sexual assault, or inappropriate sexual
  behavior.” The prosecutor never explained why Juror K.P.’s
  background was deemed acceptable but Juror R.P.’s would not be.
  See Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (If the proffered
  reason for striking a black panelist applies equally to “an otherwise-
  similar nonblack who is permitted to serve, that is evidence tending
  to prove purposeful discrimination.”). Notably, the record discloses
  that both parties had earlier accepted Juror R.P.’s and Juror K.P.’s
  similar assurances that their prior experiences with sexual assault
  would not affect their judgment in this case.
                                    21
a 1997 crime would not be tried until 2015, the record discloses

that Juror R.P. offered several logical reasons — and never

indicated he would not accept other explanations — for the delayed

proceedings presented during trial. The operative questioning is as

follows:

           [PROSECUTOR to R.P.]: Did you hear the year
           in which this case took place?

           [JUROR R.P.]: I believe it was ’96.

           [PROSECUTOR]: And when you heard that it
           was a case from some years ago, did you have
           any response in your gut to think oh, a
           number of years have passed, and here we are
           prosecuting the case?

           [JUROR R.P.]: Yes.

           [PROSECUTOR]: Did you have any feelings
           that were associated with that?

           [JUROR R.P.]: Yeah. Why so long, and what
           has happened? Maybe the person didn’t
           disclose for some reasons, the victim? Or
           maybe there was a mistrial before, or you
           know, something went awfully wrong for so
           many years to have gone by.

           [PROSECUTOR]: Is there anybody else here —
           I saw some heads nodding. Is there anybody
           else here who when the judge said that it was
           a case from 1997, that that pinged somewhere
           in your mind, that it at least registered? Pretty
           much everyone. Is there anyone here . . .
                                  22
            [who] said you shouldn’t be prosecuting
            somebody from ’97? How can that person
            defend themselves from a case that’s so old?

  Several other potential jurors expressed concerns about the age of

  the case, but those jurors were not struck.

¶ 30   That the prosecutor later tried to characterize her objections to

  Juror R.P.’s service as objections to his anti-establishment bent is

  of no moment and smacks of pretext. See, e.g., United States v.

  Bishop, 959 F.2d 820, 826 (9th Cir. 1992) (concluding that the

  reason offered — that the juror lived in a high crime area plagued

  by uneasy police relations — was really a proxy for race), overruled

  on other grounds, United States v. Nevils, 598 F.3d 1158, 1167 (9th

  Cir. 2010); Rector v. State, 444 S.E.2d 862, 864-65 (Ga. Ct. App.

  1994) (the prosecutor suggested that he struck a black,

  gold-toothed prospective juror because the gold tooth suggested to

  him that the juror was thumbing her nose at society; the court

  rejected the excuse, noting that the gold tooth had “nothing to do

  with [her] ability to perform as a juror”); McCormick v. State, 803

  N.E.2d 1108, 1111 (Ind. 2004) (concluding that the reason provided

  — that the juror would find it difficult “passing judgment on a


                                    23
  member of one[’]s own in the community” — was not facially

  race-neutral).

¶ 31   The court briefly mentioned Juror R.P.’s alleged “anti-law

  enforcement bend.” While the record is unclear regarding whether

  the court found that reason, standing alone, sufficient, remanding

  this case to the trial court to make additional findings of fact and

  conclusions of law, see Rodriguez, ¶ 19, is not useful here where

  the record discloses that the non-neutral reasons the prosecutor

  offered lacked record support (or were contradicted by the record)

  and where the trial court itself earlier acknowledged that Juror R.P.

  was “entitled to believe people of color are not well-served in our

  criminal or medical system” and that nothing in his answers or his

  life experience indicated that it would “affect his judgement in this

  case.”

¶ 32   As to the other race-neutral reasons the prosecutor provided

  for striking Juror R.P., other non-Hispanic prospective jurors

  expressed views similar to the views of, or had similar attributes as,

  Juror R.P., see Miller-El, 545 U.S. at 241:




                                    24
• First, regarding the prosecutor’s objection that Juror R.P. was

  “polished, educated,” and persuasive, nine of the jurors who

  served had at least a bachelor’s degree and a few had graduate

  educations. With regards to his specific education, Juror C.B.,

  like Juror R.P., revealed that she worked in the health field as

  a nurse. See Reynoso v. Hall, 395 F. App’x 344, 349 (9th Cir.

  2010) (reversing where the record clearly refuted prosecutor’s

  proffered reason of lack of education for striking a prospective

  juror where five white jurors had similar education levels).

• Second, the prosecutor’s asserted concern with Juror R.P.

  having strong opinions is curious because she asked other

  prospective jurors if they would be strong enough to assert

  themselves, revealing a concern that those jurors might be

  weak and unduly influenced. See Reed v. Quarterman, 555

  F.3d 364, 379-80 (5th Cir. 2009) (prosecution’s surmises

  about stricken juror were found to be pretextual where other

  white jurors had also expressed nearly identical concerns but

  were not struck or questioned further); Hardcastle v. Horn,

  521 F. Supp. 2d 388, 405-08 (E.D. Pa. 2007) (rejecting

                              25
     proffered race-neutral reasons for striking nonwhite potential

     jurors — young, single, unemployed, and unmarried — where

     three other Caucasian women fit a similar description but

     were not struck); Killebrew v. State, 925 N.E.2d 399, 402-03

     (Ind. Ct. App. 2010) (refusing to credit the prosecutor’s excuse

     that the juror struck was too “emphatic” and finding that there

     was no meaningful distinction between how the struck juror

     and other white panelists described the applicable burden).

     Juror R.P. occupied the seventh seat of the initial jury pool.

Of the first thirteen jurors seated — before any were struck — three

were Hispanic (occupying seats four, seven, and nine), and the

record reflects that eight Hispanic surnamed people were excused

from jury service before the first and only Hispanic was seated.

That one Hispanic juror ultimately served in no way cures a Batson

violation; even one improper strike violates the Equal Protection

Clause. Lancaster v. Adams, 324 F.3d 423, 434 (6th Cir. 2003)

(subsequent selection of an African-American for the jury did not

cure the prosecutor’s Batson violation); Fernandez v. Roe, 286 F.3d

1073, 1079 (9th Cir. 2002) (concluding that the prosecutor


                                 26
  disproportionately struck Hispanics from the jury box even though

  one Hispanic juror ultimately sat on the jury).

¶ 33   Purposeful discrimination in jury selection harms litigants and

  the individual jurors who are wrongfully excluded and diminishes

  the public’s confidence in the fairness of judicial proceedings.

  Batson, 476 U.S. at 87; see Georgia v. McCollum, 505 U.S. 42, 49

  (1992). “The need for public confidence in our judicial process and

  the integrity of the criminal justice system is ‘essential for

  preserving community peace.’” People v. Cerrone, 854 P.2d 178,

  196 (Colo. 1993) (Scott, J., dissenting) (quoting McCollum, 505 U.S.

  at 49). It is therefore “of paramount importance that the

  community believes we guarantee even-handed entry into our

  criminal justice system by way of the jury panel.” Id. (Scott, J.,

  dissenting). That is precisely why “[t]he ‘Constitution forbids

  striking even a single prospective juror for a discriminatory

  purpose.’” Foster, 578 U.S. at __, 136 S. Ct. at 1747 (quoting

  Snyder, 552 U.S. at 478); see also Powers v. Ohio, 499 U.S. 400,

  411 (1991) (“[R]acial discrimination in the selection of jurors ‘casts

  doubt on the integrity of the judicial process’ and places the


                                     27
  fairness of a criminal proceeding in doubt.” (quoting Rose v.

  Mitchell, 443 U.S. 545, 556 (1979))).

¶ 34      Not only did the trial court improperly supply independent

  reasons to strike Juror R.P., which it was not supposed to do,

  Valdez, 966 P.2d at 592 n.11 (a trial court may not interject its own

  nondiscriminatory reasons, even if supported by the record), but it

  also failed to recognize that the record refutes most of the

  prosecutor’s proffered excuses. Thus, the record clearly discloses

  that the trial court erred in denying the Batson challenge at issue

  here.

                              IV.   Conclusion

¶ 35      The judgment of conviction is reversed, and the case is

  remanded for a new trial.

          JUDGE HARRIS specially concurs.

          JUDGE HAWTHORNE dissents.




                                     28
       JUDGE HARRIS, specially concurring.

¶ 36   Defendant Ray Ojeda was convicted, on strong evidence, of a

  horrific series of crimes. Regardless, he had a “right to be tried by a

  jury whose members are selected pursuant to nondiscriminatory

  criteria.” Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). Because I

  conclude that this right was violated, I agree with Judge Fox that

  the judgment must be reversed.

¶ 37   But I write separately because, unlike Judge Fox, I do not

  believe that the prosecution satisfied even its minimal burden at

  step two of the Batson analysis to state a race-neutral reason for

  striking Juror R.P. Like the district court, I can conceive of

  race-neutral reasons to strike the juror. But by her own admission,

  the prosecutor struck Juror R.P. based on her concern that as a

  “polished” “person of color” with both a commitment to “serving

  people of color” and a relatively low opinion of the criminal justice

  system, he would likely persuade other jurors that the police had

  racially profiled Ojeda who, the prosecutor reminded the court, is

  also “a person of color.” In my view, a discriminatory intent is

  “inherent” in the prosecutor’s explanation, and therefore it does not


                                    29
  qualify as race-neutral. Hernandez v. New York, 500 U.S. 352, 360

  (1991).

                            I. Applicable Facts


¶ 38   Ojeda was charged with kidnapping, sexually assaulting, and

  shooting a fifteen-year-old girl in 1997. The victim reported the

  crime immediately, but she could not identify the perpetrator and

  the case went cold. Years later, the police retested evidence from

  the victim’s rape kit; DNA from the vaginal swab matched Ojeda.

¶ 39   At the trial in 2015, prospective jurors completed a

  questionnaire that asked, among other things, whether they, a

  friend, or a relative had been the victim of a sexual assault; whether

  they had friends or relatives in law enforcement; and whether they

  or a family member had ever had a particularly good or bad

  experience with a police officer.

¶ 40   Juror R.P. disclosed that he and his ex-wife had been victims

  of sexual misconduct or assault, that he had a friend in law

  enforcement, and that he or a family member had been “racially

  profil[ed].” Because he answered the first question affirmatively,

  Juror R.P., like at least a dozen other jurors, was questioned

                                      30
  individually by counsel. He explained that the “inappropriate

  sexual behavior” he had encountered, as well as his ex-wife’s

  separate experience, occurred in the mid-1980s, before they were

  married. Neither defense counsel nor the prosecutor expressed any

  concern about Juror R.P.’s answers.

¶ 41   Later, during group voir dire, the prosecutor asked eight of the

  prospective jurors to rate the criminal justice system on a scale of

  one to ten. Two jurors rated the system a nine or ten, but of the

  other six jurors, two rated it a four, three gave it a five or six, and

  one rated it a six or seven. Juror R.P. gave the system a score of

  four. He acknowledged that he had “a little bit of a bias on the

  system itself,” explaining that he had “worked with communities of

  color,” and he “[did] know that the criminal justice system is

  disproportionately filled with people of color and folks with mental

  disabilities.” He admitted that, while he would try not to let his

  views affect him as a juror, his feelings about the system might

  color the way he “hear[d] and weigh[ed] the evidence in the case.”

¶ 42   The prosecutor also asked Juror R.P. whether he had a

  “response in [his] gut” to the delay in bringing the case to trial.


                                     31
  Juror R.P. said that the delay raised questions: “Maybe the person

  didn’t disclose for some reason, the victim? Or maybe there was a

  mistrial before, or you know, something went awfully wrong for so

  many years to have gone by.”

¶ 43   The prosecutor challenged Juror R.P. for cause. She said that

  her challenge was based on the content of Juror R.P.’s

  questionnaire, the remarks he made during general voir dire, and

  his demeanor.

¶ 44   As for the questionnaire, she observed that Juror R.P. worked

  in a field “ha[ving] to do with a quality of healthcare for individuals.”

  Next, she turned to Juror R.P.’s voir dire comments, focusing on his

  “bias against the system.” She construed his comment as an

  admission that his bias would “impact his ability to listen to both

  sides” and said that he “visibly showed hesitation” about his ability

  to be fair. She then summed up her concerns:

             And I believe that when you look at that
             in-court behavior against what is clearly his
             commitment to his job, in terms of serving
             people of color and what he talked about in
             terms of the defendant being a person of color
             — he is himself a person of color — I thought
             that the totality of the record indicated that he
             has a distinctive leaning, that he himself said
                                     32
             he would have trouble listening to the
             evidence.


¶ 45   Defense counsel objected to the prosecutor’s challenge on

  various grounds. Then he noted that Juror R.P. was “one of the few

  Hispanic men on this entire jury panel.” He argued that, under

  Batson, the prosecutor could not “exclude him just because he’s

  Hispanic and may have something in common with the defendant

  in his heritage.” The prosecutor did not dispute defense counsel’s

  characterization of the basis of her challenge.

¶ 46   The district court denied the prosecutor’s for-cause challenge,

  finding that “there’s a completely inadequate record to challenge

  him in this case.” The court clarified, however, that it had not

  made any findings under Batson.

¶ 47   When it came time to exercise peremptory strikes, the

  prosecutor used her last strike to excuse Juror R.P. Defense

  counsel raised a Batson objection. Without awaiting a ruling from

  the court on whether Ojeda had made out a prima facie case of

  discrimination, the prosecutor proceeded to articulate her rationale

  for striking Juror R.P.


                                    33
¶ 48   First, she expressly incorporated her comments related to her

  earlier for-cause challenge. Then, she expanded on those

  comments, emphasizing the same underlying theme. She told the

  court that Juror R.P. would be a bad juror in light of the

  weaknesses in the prosecution’s case. She explained that the jury

  would hear that the police had misplaced the victim’s rape kit and

  she anticipated vigorous cross-examination concerning the DNA

  evidence recovered from the kit years later. Juror R.P.’s

  reservations about the system might make him more skeptical of

  the prosecution’s evidence, she said. The problem was that

  because the “defendant is a Latino male,” and Juror R.P. had

  discussed his own concerns about being racially profiled, Juror R.P.

  (a “polished, educated,” and “persuasive individual”) might then

  “steer the jury towards a race-based reason why” Ojeda was

  “charged in the case.” The prosecutor also noted that the jury still

  included a man of Middle Eastern descent, a “gentleman who is

  literally, not metaphorically, but literally of African-American

  descent,” another black man, and a Hispanic man.




                                    34
¶ 49   Defense counsel disputed that the prosecutor’s reasons were

  race-neutral: “With respect to [Juror R.P.], I think [the prosecutor]

  made my argument for me. She’s concerned about a race-based

  argument being made by [Juror R.P.] because he’s Hispanic.”

¶ 50   The district court, though, found “abundant race-neutral

  reasons for a peremptory to be exercised,” even if they were not the

  reasons given by the prosecutor. Juror R.P. and his ex-wife were

  both victims of sexual assault, the court said, and Juror R.P.

  “struck the Court as remarkably unconcerned about those events in

  his own lifetime.” As well, Juror R.P.’s “first thought” when the

  prosecutor asked about the delay in bringing the case to trial “was

  that the victim had delayed disclosure.” And then there was Juror

  R.P.’s “anti-law enforcement ben[t],” which the court did not explain

  further. According to the court, these reasons provided “a sufficient

  racially neutral basis for the challenge.”

¶ 51   Defense counsel did not challenge any of the court’s reasons

  as pretextual, presumably because he had already challenged the

  prosecutor’s separate reasons as race-based. Consequently, the

  court’s finding of a race-neutral basis for the strike constituted its


                                     35
  final ruling on Ojeda’s Batson objection. Following the court’s

  ruling, the prosecutor added that she, too, had “taken a note” about

  Juror R.P.’s comments concerning the delay and that they were “of

  particular concern.”

¶ 52   The jury convicted Ojeda as charged, and the court sentenced

  him to 144 years in prison.

                       II. Law and Review Standard


¶ 53   The Equal Protection Clause of the Fourteenth Amendment

  forbids striking a prospective juror for a discriminatory purpose.

  Snyder v. Louisiana, 552 U.S. 472, 478 (2008). “Discriminatory

  purpose” means that the decision-maker selected a particular

  course of action “at least in part ‘because of,’ not merely ‘in spite of,’

  its adverse effects upon an identifiable group.” Hernandez v. New

  York, 500 U.S. 352, 360 (1991) (quoting Pers. Adm’r v. Feeney, 442

  U.S. 256, 279 (1979)).

¶ 54   The Supreme Court has outlined a three-step process for

  determining when a peremptory strike is discriminatory:

             [O]nce the opponent of a peremptory challenge
             has made out a prima facie case of racial
             discrimination (step one), the burden of
             production shifts to the proponent of the strike
                                     36
            to come forward with a race-neutral
            explanation (step two). If a race-neutral
            explanation is tendered, the trial court must
            then decide (step three) whether the opponent
            of the strike has proved purposeful racial
            discrimination.

  Purkett v. Elem, 514 U.S. 765, 767 (1995).


¶ 55   At the second step of the analysis, the issue is the facial

  validity of the prosecutor’s explanation. Valdez v. People, 966 P.2d

  587, 590 (Colo. 1998). Thus, the second step of the process does

  not demand an explanation that is persuasive or even plausible.

  Hernandez, 500 U.S. at 360. The reason need only be race neutral.

  A race-neutral reason is “an explanation based on something other

  than the race of the juror.” Id.; see also People v. Mendoza, 876

  P.2d 98, 101 (Colo. App. 1994) (at step two of Batson analysis,

  prosecutor must offer an explanation for the strike “based on

  something other than race”). If a discriminatory purpose is

  “inherent in the prosecutor’s explanation,” the reason offered

  cannot be deemed race neutral. Hernandez, 500 U.S. at 360.

¶ 56   While “[c]ircumstantial evidence of invidious intent may

  include proof of disproportionate impact,” Batson, 476 U.S. at 93,

  the required showing under Batson requires more than a
                                    37
  demonstration that the prosecutor’s proffered reason has a racially

  disproportionate impact or “is related to the issue of race,” Akins v.

  Easterling, 648 F.3d 380, 388 (6th Cir. 2011). Still, the prosecutor

  “may not rebut the defendant’s prima facie case of discrimination

  by stating merely that [s]he challenged jurors of the defendant’s

  race on the assumption — or [her] intuitive judgment — that they

  would be partial to the defendant because of their shared race.”

  Batson, 476 U.S. at 97.

¶ 57   In evaluating the race neutrality of the prosecutor’s

  explanation, a court must determine whether, assuming the

  proffered reason for the peremptory challenge is true, the challenge

  is based on something other than race or whether it is race-based

  and therefore violates the Equal Protection Clause as a matter of

  law. Hernandez, 500 U.S. at 359. Accordingly, we apply a de novo

  standard when reviewing the second step of the Batson analysis.

  Valdez, 966 P.2d at 590.

                               III. Analysis

                                    A.




                                    38
¶ 58   Ojeda argues that the district court clearly erred at step three

  of the Batson analysis. And Judge Fox persuasively credits his view

  of the record. But in my view, the district court did not conduct a

  step three analysis, nor could it have under the circumstances.

¶ 59   The trial court’s task at step three is to determine whether the

  objecting party proved that the striking party exercised peremptory

  challenges with a discriminatory purpose. People v. Beauvais, 2017

  CO 34, ¶ 23. The crux of the task is discerning whether the

  race-neutral reason for the strike is merely a pretext for a

  race-based decision. See People v. Rodriguez, 2015 CO 55, ¶ 12.

  To make that determination, the court considers the striking party’s

  demeanor, the plausibility of the explanation, and whether the

  proffered rationale has some basis in accepted trial strategy.

  Beauvais, ¶ 23.

¶ 60   So, in the typical third step case, the prosecutor has explained

  the strike by asserting, for example, that the juror has a mustache

  and a beard, see Purkett, 514 U.S. at 769, or that the juror would

  be preoccupied with other obligations, see Snyder, 552 U.S. at 478.

  Then it is up to the defendant to show by a preponderance of the


                                    39
  evidence that these are not the true reasons for the strike and,

  instead, the “‘discriminatory hypothesis’ better fits the evidence.”

  People v. Wilson, 2015 CO 54M, ¶ 14.

¶ 61   But here, the prosecutor did not claim that she had struck

  Juror R.P. because he had glasses or was reading a magazine

  during voir dire; she claimed she struck Juror R.P. because, as a

  person of color who had some concerns about the criminal justice

  system, he was likely to rally the jury around a theory of the case —

  racial profiling — that might seem plausible because of some

  purported weaknesses in the prosecution’s case and because the

  defendant, too, was Hispanic. And defense counsel did not argue

  that the proffered reason for the strike was false and merely a

  pretext for discrimination; he accepted the reason as true and

  argued that it was expressly based on the juror’s race. In response,

  the trial court did not determine that the prosecutor’s reason was

  race neutral and then consider the question of pretext; rather, it

  offered three race-neutral reasons of its own that might have

  justified the prosecutor’s strike and then overruled Ojeda’s Batson

  objection.


                                    40
¶ 62     Therefore, like Judge Fox, I see no reason to remand to the

  trial court for a hearing at which the court would determine

  whether the prosecutor’s explanation for the strike was pretextual.

  In my view, that procedure is unnecessary not because the

  prosecutor’s reason was clearly pretextual but because it was

  clearly race-based — that is, a discriminatory purpose was

  “inherent in the prosecutor’s explanation.” Hernandez, 500 U.S. at

  360.

                                     B.


¶ 63     As an initial matter, all three members of the division agree

  that the trial court cannot supply its own race-neutral reasons for

  the prosecutor’s strike. See Valdez, 966 P.2d at 592 n.11. That

  constitutes error because, under Batson, the question is not an

  objective one — could a race-neutral reason be divined from the

  record? — but a subjective one — did the prosecutor strike the

  juror based on race? See Miller-El v. Dretke, 545 U.S. 231, 252

  (2005) (The focus is on the striking party’s “stated reason,”

  regardless of whether “a trial judge, or an appeals court, can

  imagine a reason that might” withstand scrutiny.).

                                     41
¶ 64   Relying on Beauvais, the People contend that the court’s

  reliance on its own race-neutral reasons for the strike does not

  amount to a finding that the prosecutor’s stated reasons were

  race-based. They say that in finding “abundant” race-neutral

  grounds for striking Juror R.P., the court “implicitly credited” the

  prosecutor’s proffered grounds. I am not persuaded.

¶ 65   In response to the Batson objection, the prosecutor launched

  into a long explanation, reiterating and expanding on her proffered

  reason for raising the earlier for-cause challenge to Juror R.P.

  (Indeed, the reasons were so closely tied that the court prefaced its

  Batson ruling by stating that it would “deny the challenge for

  cause.”) The trial court did not accept the prosecutor’s reasons,

  albeit without making specific credibility findings, as the trial court

  did in Beauvais.2 Instead, the court disregarded the prosecutor’s


                         ———————————————————————
  2 In People v. Beauvais, 2017 CO 34, the defendant raised a Batson
  objection after the prosecutor exercised all of his peremptory strikes
  against female jurors. Id. at ¶ 6. The trial court considered all of
  the prosecutor’s proffered reasons and determined that while the
  reasons were “not strong,” the defendant had not carried her
  burden to show purposeful discrimination. Id. at ¶ 12. On appeal,
  a majority of a division of this court remanded, concluding that, in
  the absence of specific credibility findings, it could neither

                                    42
  reasons and determined that, even setting aside the proffered

  justification, there were three race-neutral reasons for striking the

  juror, none of which were actually mentioned by the prosecutor.

  Thus, I read the trial court’s oral ruling as a finding, and a fairly

  explicit one, that the prosecutor’s explanation was not race neutral

  and that other reasons were necessary to support the strike.

¶ 66   The parties and my colleagues interpret the court’s third

  reason, that Juror R.P. had an “anti-law enforcement ben[t],” not as

  a new reason imagined by the trial court, but simply as another

  way of characterizing the prosecutor’s “anti-establishment” reason.

  That distinction is not critical, though. Whether the court accepted

  the prosecutor’s reason as race-neutral (and added two additional

  reasons) or disregarded her reason as race-based, the de novo



                         ———————————————————————
  adequately review the prosecutor’s reasons nor infer that the trial
  court had credited the demeanor-based reasons. Id. at ¶ 16. The
  supreme court reversed. It held that specific credibility findings are
  unnecessary to affirm a step three ruling, whether the proffered
  reasons are demeanor-based or non-demeanor-based. Instead, it
  instructed, an appellate court conducting a clear error review
  should defer to a trial court’s ultimate Batson ruling “so long as the
  record reflects that the trial court weighed all of the pertinent
  circumstances and supports the court’s conclusion” regarding
  purposeful discrimination. Id. at ¶ 32.
                                     43
  inquiry at this second step is the same — accepting what the

  prosecutor said as true, was her proffered reason race-neutral or

  race-based?

¶ 67   In answering that question, I do not accept that the prosecutor

  offered multiple independent reasons for the strike. She did not

  say, for instance, that Juror R.P. had a mustache, lacked a science

  background, was nervous during voir dire, and expressed

  anti-establishment views. Those are separate reasons for striking a

  juror. Rather, the prosecutor’s long explanation, including her

  single demeanor-based reference (Juror R.P.’s “hesitation” about the

  effect of his views of the system on his evaluation of the evidence)

  related exclusively to Juror R.P.’s “distinctive leaning” and boiled

  down to a simple proposition: As a “person of color” who had

  concerns about the criminal justice system, Juror R.P. was likely to

  “steer the jury toward a race-based reason why Mr. Ojeda,” who

  was himself “a person of color,” was “charged in the case.”

¶ 68   That a juror holds “anti-establishment” or “anti-law

  enforcement” views can be a race-neutral reason for a strike. See

  People v. Friend, 2014 COA 123M, ¶ 17 (holding that striking a


                                    44
  prospective juror because she had a bad experience with law

  enforcement was a sufficiently race-neutral justification), aff’d in

  part and rev’d in part on other grounds, 2018 CO 90. And here, if

  the prosecutor had said only that the strike was based on Juror

  R.P.’s observation about the disproportionate incarceration rates of

  people of color and people with mental health disorders, I would

  agree that the reason was race neutral. People of all races have

  observed this state of affairs and expressed concern about it.

¶ 69   But the prosecutor went further. She explicitly tied Juror

  R.P.’s race to his views on the justice system. It was not just that

  Juror R.P. had concerns about the system; it was also that he was a

  person of color, like the defendant, and the combination of those

  facts made it more likely that he would find a “race-based” reason

  for the prosecution and then try to persuade the other jurors to

  adopt his view.

¶ 70   Contrary to the People’s assertion, Juror R.P. did not attribute

  his views of the criminal justice system to his race. He attributed

  his knowledge of the system to his work with “communities of

  color.” Only the prosecutor articulated a connection between Juror


                                    45
R.P.’s status as “a person of color” and his so-called

“anti-establishment” views. Thus, I am not convinced by the

People’s argument that “expressly biased jurors would be insulated

from peremptory challenges whenever they pointed to their own

race as a reason for a worldview that favored one party or the

other.” In those cases, I agree with the People that the juror’s

biased worldview, regardless of his or her race, would provide a

race-neutral reason for a peremptory strike. But if the prosecutor,

not the juror, attributes the juror’s worldview to his or her race, or

links the juror’s race and worldview to the defendant’s race, then

the prosecutor’s proffered “worldview” reason is unlikely to be race

neutral. See, e.g., United States v. Bishop, 959 F.2d 820, 822-26

(9th Cir. 1992) (prosecutor’s reason for striking black juror —

because she lived in Compton and therefore likely believed that the

police “pick on black people” — was not a race-neutral reason

where the juror had not expressed any view of the police); see also

Batson, 476 U.S. at 104 (Marshall, J., concurring) (The exclusion of

black jurors cannot be justified by “a belief that blacks are less




                                  46
  likely than whites to consider fairly or sympathetically the State’s

  case against a black defendant.”).

¶ 71   So, is a “discriminatory purpose” “inherent” in the

  prosecution’s explanation? A “discriminatory purpose” exists when

  the decision-maker selects a particular course of action “at least in

  part” because of its adverse effect on an identifiable group. A

  purpose is “inherent” in an explanation if it is “essential” or

  “intrinsic” to the explanation. See Webster’s Third New

  International Dictionary 1163 (2002). In my view, that the

  prosecutor struck Juror R.P. at least in part because of his race is

  intrinsic to her explanation. Thus, I conclude that the prosecutor

  did not meet her burden at step two of the Batson analysis to

  proffer a race-neutral reason for striking the juror.

                                     C.


¶ 72   Discriminatory purpose is not the same as discriminatory

  animus. A defendant need not show that the race-based strike was

  motivated by the lawyer’s prejudice or animus. And here, I do not

  think the record supports any inference that the prosecutor



                                     47
  harbored ill will or prejudice toward Juror R.P. or any other person

  of color.

¶ 73   Batson’s rule prevents either party from striking jurors “on

  account of their race.” 476 U.S. at 89. The notion that jurors of a

  particular race or gender will be partial to one side or the other

  merely “on account of” their race or gender is generally based on

  “crude, inaccurate” stereotypes. 476 U.S. at 104 (Marshall, J.,

  concurring). Sometimes, the use of those stereotypes in jury

  selection will demonstrate the worst kind of invidious bigotry. See

  Neal v. Delaware, 103 U.S. 370, 393-94 (1880). But more often, a

  lawyer’s reliance on stereotypes to ferret out sympathetic jurors

  “reflect[s] a professional effort to fulfill the lawyer’s obligation to

  help his or her client.” Dretke, 545 U.S. at 271 (Breyer, J.,

  concurring).

¶ 74   In a child abuse case, for example, a female prosecutor may

  rely on the stereotype of women as more nurturing to strike male

  jurors from the jury. But if the accused is a new mother, the

  prosecutor may think it best to strike women, who might

  sympathize with a young mother’s plight. A black prosecutor may


                                      48
  assume that black male jurors are likely to have had bad

  experiences with police officers and strike them from the jury in any

  case that turns on a police officer’s testimony. See id. at 270-71

  (referencing professional materials that promote jury selection

  based in part on race, nationality, and gender). The first prosecutor

  is not a sexist and the second is not a racist.

¶ 75   “Nevertheless, the outcome in terms of jury selection is the

  same as it would be were the motive less benign.” Id. at 271. And

  so, Batson must be strictly enforced to ensure that any race-based

  strike is prohibited. But equating a discriminatory purpose for

  exercising a strike with discriminatory animus on the part of the

  striking party undermines the goals of Batson.

¶ 76   If a showing of racial animas is necessary, certain lawyers may

  enjoy a sort of immunity from Batson objections. The female

  prosecutor who strikes women jurors is unlikely to be challenged as

  a sexist, and the black prosecutor who strikes black male jurors is

  unlikely to be confronted as a racist. But more importantly,

  enforcement is already hampered by the implication that a lawyer’s

  use of a race- or gender-based strike reveals bigotry or immorality.


                                    49
  I suspect that trial judges hesitate to sustain Batson challenges,

  when they otherwise might and should, because such a ruling is

  seen as tantamount to calling the prosecutor a racist. Perpetuation

  of that misconception allows more, not fewer, race-based strikes to

  go unchecked.

                             IV. Conclusion


¶ 77   In this case, I conclude that the prosecutor’s reason for

  striking Juror R.P. was based in part on his race. I do not conclude

  that it was based in any part on racial animus of the prosecutor.

  Nonetheless, because the result is the same, I agree with Judge Fox

  that Ojeda’s conviction must be reversed, and the case remanded

  for a new trial.




                                   50
  JUDGE HAWTHORNE, dissenting.

¶ 78   Because I disagree on procedural grounds with how the

  majority and concurrence decide this case given the record before

  us, I respectfully dissent.

¶ 79   In People v. Rodriguez, 2015 CO 55, ¶ 1, the Colorado

  Supreme Court specifically “consider[ed] how both trial and

  appellate courts should determine whether a party has used a

  peremptory challenge to purposefully discriminate against a

  prospective juror on account of [his or] her race.” This is precisely

  the challenge Ojeda brings, so I believe that Rodriguez controls.

¶ 80   Unlike the majority and concurrence, however, I disagree that

  the cold record is sufficient as is for us to decide the merits of

  Ojeda’s challenge under Batson v. Kentucky, 476 U.S. 79 (1986).

  And that’s because the trial court’s Batson analysis was inadequate

  in that it failed to make sufficient factual findings about (1) whether

  Ojeda “ma[d]e a prima facie showing that the peremptory strike was

  based on [Juror R.P.’s] race”; (2) whether the prosecutor provided a

  race-neutral explanation; or (3) whether, ultimately, Ojeda

  established purposeful discrimination. See Rodriguez, ¶¶ 10-12.

  Under these circumstances, Rodriguez requires us to remand the


                                     51
  case to the trial court with directions that it conduct the three-step

  Batson analysis and make the required factual findings. See id. at

  ¶ 2 (“[T]he proper remedy for an inadequate inquiry into a Batson

  challenge at the time of jury selection is to remand the case to the

  trial court with directions to conduct the three-part Batson analysis

  and make the required factual findings.”).

¶ 81   So, I disagree with the majority and concurrence’s

  agreed-upon remedy. I would follow supreme court precedent — as

  we must — and remand the case.

                           I.   Relevant Facts

¶ 82   The prosecutor first challenged Juror R.P. for cause on three

  grounds: (1) “the content of his questionnaire”; (2) “his remarks that

  he made in open court”; and (3) “his demeanor.” She explained that

  Juror R.P. had expressed a “bias” against the system and “visibly

  showed hesitation” when asked whether he could be fair.

  Expanding further on these reasons, the prosecutor explained that,

            With regard to what he put on his
            questionnaire, I found it to be significant. I
            can’t recall the exact language, but he has
            devoted his career to — it’s not listed on the
            questionnaire, but he had explained to us in
            chambers that it has to do with a quality of
            healthcare for individuals.


                                    52
            And that, in my mind, very much dovetailed
            with his — he’s not a forceful speaker in the
            sense that he raises his voice, but he is a man
            of very great conviction. And what he talked
            about is that he had — he used the word
            “bias” against the system. He gave our system
            the lowest rating of anyone who has been
            asked to offer a score. I believe his score was
            4.

            And when I asked him about the linkage
            between his low confidence in the system and
            whether or not he could be fair, he visibly
            showed hesitation. He did not speak as readily
            or in the same way that he previously had. He
            said it would impact his ability to listen to both
            sides.

            And I believe that when you look at that
            in-court behavior against what is clearly his
            commitment to his job, in terms of serving
            people of color and what he talked about in
            terms of the defendant being a person of color
            — he is himself a person of color — I thought
            that the totality of the record indicated that he
            has a distinctive leaning, that he himself said
            he would have trouble in listening to the
            evidence.

¶ 83   Defense counsel responded that the prosecutor was

  mischaracterizing Juror R.P.’s answers and that Juror R.P. had

  indicated he could be objective. Defense counsel added that Juror

  R.P. was also one of the few Hispanic males on the prospective jury

  and that counsel didn’t “know that it’s appropriate to exclude him



                                   53
  just because he’s Hispanic and may have something in common

  with the defendant in his heritage.”

¶ 84   The court denied the for-cause challenge, finding that there

  wasn’t anything in Juror R.P.’s feelings or life experiences indicating

  he wouldn’t follow the court’s rules or reach a verdict based on the

  evidence. The court also noted that “[t]here’s a completely

  inadequate record to challenge him in this case.” The prosecutor

  then requested that the court repeat its ruling “with regard to the

  Batson issue,” and the court clarified that it “didn’t really reach

  [that] issue.” Instead, it “didn’t think it was a founded challenge,

  regardless of [Juror R.P.’s] personal ethnicity. I just thought that

  he had attitudes that he was certainly entitled to have, and that

  there was not anywhere near a sufficient record that they would

  affect his ability to be a fair juror.” Juror R.P. wasn’t questioned

  again before the parties exercised their peremptory challenges.

¶ 85   The prosecutor used her fifth peremptory challenge to excuse

  Juror R.P. Defense counsel asserted a Batson challenge because he

  was “obviously concerned about excusing Hispanic males from the

  jury.” In response, the prosecutor first incorporated her previous

  statements as to Juror R.P., then gave the following explanation:


                                    54
To be utterly disclosing, we are pursuing a
strategy of trying to select jurors who are
establishmentarian, let’s say, who are in favor
of the system that we have. And that’s one of
the reasons I used a rate-the-system type of
device during my voir dire.

[Juror R.P.] gave our system the lowest rating
possible — rather, the lowest rating that
anyone had given, which was a number 4,
which is a matter of some concern.

What we anticipate by way of evidence, Judge,
that is influencing this race-neutral strike is
that the jury is going to hear that there were
errors on the part of the police department in
terms of not having been able to locate the
rape kit in this case within the property
bureau for a period of years. I anticipate some
very vigorous cross-examination of one of the
DNA — not a DNA analyst, but a forensic
serologist, in particular, and I anticipate that
the defense is going to be very strongly
attacking the Denver Police Department, the
Denver Police Crime Lab, and that it will really
build on the statements that have already been
made during jury selection that critique the
system as a whole as a way to build reasonable
doubt in to secure a not guilty verdict.

And so what [Juror R.P.’s] concerns were
about the system — and he said, I have a bias
against the system. And so the concerns that
we have do not relate in any way to the color of
the skin or his national origin, but rather to
his stated reservations in that regard when we
know what the evidence will be and when we
are now getting some pretty strong clues about
what the defense will be.


                       55
¶ 86   The prosecutor continued by noting the racial composition of

  the jury box and of the group of prospective jurors recently struck

  by the defense. She then added:

            Your Honor, if I could wrap up with two other
            thoughts that are very strongly informing our
            desire to exercise a strike as to [Juror R.P.].
            He’s a polished, educated, and, I believe,
            persuasive individual. And because of his
            presentation in that regard, the concern that
            we have is that the critique of the criminal
            justice system that he has talked about, he
            could be very, very strongly persuasive in the
            jury room. That’s race neutral. We see him as
            a person who could very much persuade
            others of the reservations that he has. And
            given what we anticipate by way of the
            evidence, that is the basis for attempting to
            eliminate him.

            The other item, which is a slightly different
            concept, is that I anticipate the defense is
            going to make a very strong charge against the
            validity and reliability of the DNA results. And
            I believe that they are going to say that it was
            some unnamed individual who did this
            violence against [the victim]. And the fact that
            the defendant is a Latino male, if the jury is
            persuaded that there is not a DNA connection
            between the defendant — or excuse me,
            between the forensic evidence in this case and
            this defendant, it seems to me that the
            comments that [Juror R.P.] made about having
            concerns about racial profiling will really come
            into play in the sense that I think that he may
            then steer the jury towards a race-based
            reason why Mr. Ojeda, you know, was charged


                                    56
            in the case, and that is because he talked
            about that — [Juror R.P.] had talked about
            racial profiling in conjunction with his other
            considerations. Since I think that’s where the
            defense is going — you know, we have to
            forecast at this stage of the game, and those
            are all of the race-neutral reasons why we
            believe that a strike is constitutional and not
            racially motivated as to [Juror R.P.].

¶ 87   Defense counsel responded that “[w]ith respect to [Juror R.P.],

  I think [the prosecutor] made my argument for me. She’s

  concerned about a race-based argument being made by [Juror R.P.]

  because he’s Hispanic.” The court then made its ruling:

            The Court will deny the challenge for cause as
            to [Juror R.P.], but there are abundant
            race-neutral reasons for a peremptory to be
            exercised. First of all, he too is a victim of a
            sex assault, as is his wife, and he struck the
            Court as remarkably unconcerned about those
            events in his own lifetime. His first thought
            when there was a discussion of the time it’s
            taken to bring this case was that the victim
            had delayed disclosure. He does have an
            anti-law enforcement bend, so the Court finds
            there’s a sufficient racially neutral basis for the
            challenge.

¶ 88   Immediately following the court’s ruling, the prosecutor

  supplemented her record by noting that she had in her notes that

  when Juror R.P. heard the age of the case, he thought something

  might have gone wrong, which also caused her “particular concern.”


                                    57
                        II.   The Batson Analysis

¶ 89   Following Rodriguez, I believe that “[t]he proper remedy in this

  case depends upon whether the trial court completed the Batson

  analysis but made a clearly erroneous ruling as to the existence of

  racial discrimination, or whether the court conducted an inadequate

  Batson analysis.” Rodriguez, ¶ 7 (emphasis added). Said another

  way, the threshold question is: Did the trial court make sufficient

  factual findings to allow us to determine whether Ojeda established

  that the prosecutor struck Juror R.P. because of his race? Id. I

  think the answer to that question is clearly “no.”

¶ 90   The Equal Protection Clause of the Fourteenth Amendment

  forbids a challenge to a potential juror based solely on race.

  Batson, 476 U.S. 79; People v. Wilson, 2015 CO 54M, ¶ 10 n.4.

  When a party raises a Batson challenge, the trial court should

  engage in a three-step analysis to assess the claim of racial

  discrimination and determine whether the defendant has proven

  such claim. Wilson, ¶ 10; Rodriguez, ¶ 9.

¶ 91   Rodriguez lays out Batson’s framework and explains its three

  steps in detail, as do my colleagues, so I won’t repeat it all again.




                                     58
  Instead, I’ll only reiterate what I believe is most relevant to this

  case.

¶ 92      The first step, requiring that “the defendant must make a

  prima facie showing that the peremptory strike was based on the

  prospective juror’s race,” Rodriguez, ¶ 10, isn’t challenged here. Not

  by the People, the majority, or the concurrence. Still, I note that, at

  step one, the burden is on the defendant and the trial court should

  make a record about whether he or she has satisfied that burden

  before proceeding to step two. See Batson, 476 U.S. at 96 (“In

  deciding whether the defendant has made the requisite showing,

  the trial court should consider all relevant circumstances.”);

  Rodriguez, ¶ 13.

¶ 93      If the defendant successfully makes a prima facie showing, the

  burden shifts at step two to the striking party — here, the People —

  to provide a race-neutral explanation for excusing the prospective

  juror. Rodriguez, ¶ 11. While the prosecutor “must do more than

  deny a discriminatory motive or affirm his [or her] good faith . . . .

  [t]o pass muster, the explanation need not be ‘persuasive, or even

  plausible, as long as it does not deny equal protection.” Id. (quoting

  Purkett v. Elem, 514 U.S. 765, 768 (1995)). “Nothing more is


                                     59
  required for the inquiry to proceed to step three.” Id. But again,

  the trial court should make a record stating whether the prosecutor

  has met his or her burden before moving on.

¶ 94   At step three — after the defendant has an opportunity to

  rebut the prosecutor’s race-neutral explanation — the trial court

  “must decide the ultimate question: whether the defendant has

  established purposeful discrimination.” Id. at ¶ 12 (emphasis

  added).

¶ 95   It is at this stage that the trial court must assess the

  prosecutor’s actual subjective intent and the plausibility of her

  nondiscriminatory explanations to determine whether the defendant

  has sufficiently established purposeful discrimination. Miller-El v.

  Dretke, 545 U.S. 231, 252 (2005); see Hernandez v. New York, 500

  U.S. 352, 378 (1991) (“[T]he Court has imposed on the defendant

  the added requirement that he generate evidence of the prosecutor’s

  actual subjective intent to discriminate.”); Rodriguez, ¶ 12 (“It is at

  this stage that ‘implausible or fantastic [step-two] justifications may

  (and probably will) be found to be pretexts for purposeful

  discrimination.’” (quoting Purkett, 514 U.S. at 768)).




                                     60
¶ 96   The trial court’s ruling at step three “should be based on its

  evaluation of the prosecutor’s credibility and the plausibility of his

  [or her] explanation.” Rodriguez, ¶ 12. If the prosecutor’s “stated

  reason does not hold up, its pretextual significance does not fade

  because a trial judge . . . can imagine a reason that might not have

  been shown up as false.” Dretke, 545 U.S. at 252.

                         III.   Standard of Review

¶ 97   “[E]ach step of the trial court’s Batson analysis is subject to a

  separate standard of review.” Rodriguez, ¶ 13 (citing Valdez v.

  People, 966 P.2d 587, 590 (Colo. 1998)).

¶ 98   At step one, “the reviewing court considers de novo whether

  the defendant established a legally sufficient prima facie case —

  though it should defer to the trial court’s underlying factual

  findings.” Id. Step two, “the facial validity of the prosecutor’s

  justification” is also reviewed de novo, again with deference given to

  the trial court’s factual findings. Id.

¶ 99   Then, at step three, the trial court’s “determination as to the

  existence of racial discrimination is an issue of fact to which an

  appellate court should defer, reviewing only for clear error.” Id.

  “Since the trial judge’s findings in the context under consideration


                                     61
  here largely will turn on evaluation of credibility, a reviewing court

  ordinarily should give those findings great deference.” Batson, 476

  U.S. at 98 n.21.

            IV.   The Trial Court’s Findings (Or Lack Thereof)

¶ 100   “To determine whether we can conclude that [the] strike

  violated Batson, we evaluate the adequacy of the trial court’s

  findings.” Rodriguez, ¶ 14.

¶ 101   I begin with Batson’s step one, where Ojeda “must make a

  prima facie showing that the peremptory strike was based on” Juror

  R.P.’s race. Id. at ¶ 10. After the prosecutor moved to peremptorily

  strike Juror R.P., defense counsel immediately challenged the strike

  under Batson. He argued, “I am obviously concerned about

  excusing Hispanic males from the jury.” At that point, the trial

  court should have made — but didn’t — findings about whether

  Ojeda satisfied his step-one burden. Rather, it allowed the

  prosecutor to respond. The prosecutor immediately jumped to

  Batson’s step two, where she articulated her race-neutral rationale

  for the strike. And after she did so, the trial court again should

  have made — but didn’t — findings about whether her explanation

  “pass[ed] muster.” Id. at ¶ 11. Instead, it merely asked defense


                                    62
  counsel if he had “anything further?” Defense counsel promptly

  replied that, as to Juror R.P., “I think [the prosecutor] made my

  argument for me. She’s concerned about a race-based argument

  being made by [Juror R.P.] because he’s Hispanic.” The court then

  launched into its purported step-three ruling.

¶ 102   Although our review at steps one and two is de novo, we’re

  nonetheless required to “defer to the trial court’s underlying factual

  findings” in conducting that review. Id. at ¶ 13. But where there

  aren’t any factual findings because the court’s Batson analysis was

  incomplete, and therefore inadequate, we can’t simply stand in for

  the trial court and make factual findings of our own. Under those

  circumstances, Rodriguez requires us to remand the case to the

  trial court so that it may make the required factual findings. At

  that point, we can properly proceed with our de novo review. See

  id. at ¶¶ 2, 13.

¶ 103   Finally, at step three, our review of the court’s ruling “as to the

  existence of racial discrimination is an issue of fact to which [we]

  should defer, reviewing only for clear error.” Id. at ¶ 13. This is

  because the court’s step-three determination turns largely on “its

  evaluation of the prosecutor’s credibility and the plausibility of his


                                     63
  [or her] explanation.” Id. at ¶ 12; see also Wilson, ¶ 13 (“The

  inquiry at step three requires the trial court to decide whether to

  believe counsel’s race-neutral explanation for a peremptory

  challenge. ‘The best evidence often will be the demeanor of the

  attorney who exercises the challenge,’ evaluation of which lies

  ‘peculiarly within a trial judge’s province.’” (quoting Hernandez, 500

  U.S. at 365)) (alterations omitted).

¶ 104   But again, the trial court’s step-three analysis was inadequate.

  Unlike at steps one and two, the court did make some findings at

  step three. It offered — sua sponte — two race-neutral reasons for

  striking Juror R.P.: (1) that R.P. and his wife were not only sexual

  assault victims themselves, but that R.P. seemed “remarkably

  unconcerned” about those life experiences; and (2) that R.P.

  surmised the age of the case might have been because of the

  victim’s delayed disclosure. Although the prosecutor agreed with

  the second reason after the court made its Batson ruling, neither

  reason was initially given as a basis for the prosecutor’s exercise of

  a peremptory challenge. And, it’s improper for a trial court to “sua

  sponte offer[] its own plausible reasons behind the peremptory

  strike[] at issue.” Valdez, 966 P.2d at 592 n.11; see also Dretke,


                                     64
  545 U.S. at 252 (“The Court of Appeals’s and the dissent’s

  substitution of a reason for eliminating [the juror] does nothing to

  satisfy the prosecutors’ burden of stating a racially neutral

  explanation for their own actions.”); Rodriguez, ¶ 15 n.5 (concluding

  that the trial court never evaluated the validity of the prosecutor’s

  justification because it based its ruling on a different race-neutral

  explanation than the one offered by the prosecution).

¶ 105   So, arguably, the only mention the court made to a reason

  stated by the prosecutor was that Juror R.P. had an “anti-law

  enforcement bend.” The court didn’t mention or evaluate the

  prosecutor’s credibility, demeanor, or intent. Nor did it evaluate

  Juror R.P.’s demeanor, given the prosecutor’s demeanor-based

  reasons for the strike, including that he “visibly showed hesitation”

  and didn’t “speak as readily” in response to questions about

  whether he could be fair. And, it didn’t consider the plausibility or

  persuasiveness of the prosecutor’s explanations for the strike.

             Especially at step three, the trial court’s
             firsthand observations are crucial: it “must
             evaluate not only whether the prosecutor’s
             demeanor belies a discriminatory intent, but
             also whether the [prospective] juror’s
             demeanor can credibly be said to have



                                    65
             exhibited the basis for the strike attributed to
             the [prospective] juror by the prosecutor.”

  Rodriguez, ¶ 18 (quoting Snyder v. Louisiana, 552 U.S. 472, 477

  (2008)); see also Wilson, ¶ 18 (“Only the trial court can assess

  non-verbal cues, such as hesitation, voice inflection, and facial

  expressions, that are not recorded on a transcript.”).

¶ 106   Absent adequate findings, I don’t think we should stand in the

  trial court’s shoes and, relying on the cold record, say whether the

  prosecutor struck Juror R.P. because of his race. See Rodriguez,

  ¶¶ 17-18 (where the trial court didn’t make the necessary findings

  at steps one, two, or three, “it is impossible for a reviewing court to

  tell whether the prosecutor struck [the juror] because of her race”).

  The need for the trial court’s factual findings at each step is made

  more apparent by this very opinion where, absent such findings,

  three judges on this court are divided about how to interpret the

  prosecutor’s words.

                             V.    Conclusion

¶ 107   I believe that the proper remedy is for us to remand the case to

  the trial court and allow it to conduct the three-part Batson




                                     66
analysis and make the required factual findings at each step. The

Colorado Supreme Court in Rodriguez put it best:

           An inadequate analysis by the trial court does
           not equate to a constitutional violation by the
           prosecutor, and it should not call for the same
           remedy. The passage of time may create
           challenges for the trial court on remand, but
           those challenges do not alter the structure of
           the Batson analysis or relieve [the defendant]
           of his burden. The only way to determine
           whether racial discrimination tainted the
           prosecutor’s use of peremptory challenges is
           for the trial court to conduct further
           proceedings as it deems necessary on remand
           and complete the Batson analysis.

Id. at ¶ 20 (citations omitted). For these reasons, I respectfully

dissent.




                                  67
