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March 5, 2026 Get Citation Alerts Download PDF Add Note

People v. Doster CA5

California Court of Appeal

• Citations: None known
• Docket Number: F088710

• Precedential Status: Non-Precedential

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (12K)

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Combined Opinion

Filed 3/5/26 P. v. Doster CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F088710
Plaintiff and Respondent,
(Super. Ct. No. RF009297A)
v.

JAMES ANDREW DOSTER, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa,
Judge.
James Bisnow, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and
Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant James Andrew Doster was found guilty by a jury of robbery, burglary,
shooting at an inhabited dwelling, assault with a firearm, battery with serious bodily
injury, vandalism, and three related firearms charges. Defendant was found not guilty of
discharging a weapon with gross negligence. The jury found true multiple enhancements,
including that defendant personally and intentionally discharged a firearm, and the court
found true multiple aggravating circumstances.
Defendant now appeals, asserting a retrial is required because: (1) the trial court
erred in discharging one of only two Black prospective jurors, over defense counsel’s
objection, where the prosecutor cited the juror’s multiple family members with criminal
records as a basis for the use of peremptory challenge, in violation of Code of Civil
Procedure section 231.7;1 (2) the trial court violated the Racial Justice Act of 2020 (Stats.
2020, ch. 317, § 1) (the Racial Justice Act or the Act) by allowing a witness to refer to
defendant as “colored,” and trial counsel was ineffective for failing to object to the
witness’s statements; and (3) the evidence is insufficient to support a true finding that
defendant intentionally discharged a firearm. The People dispute all defendant’s
contentions, arguing among other things that no section 231.7 violation occurred because
all questions posed to the potential juror concerned his ability to understand the
proceedings, the juror was evasive in answering questions about his family, and there was
no “racial component” to this voir dire.
We conclude section 231.7 was violated; we thus reverse and remand the matter
for a new trial.
PROCEDURAL HISTORY
On January 31, 2024, the Kern County District Attorney filed an information
charging defendant with first degree residential robbery (Pen. Code, § 212.5, subd. (a);
count 1); first degree residential burglary (id., § 460, subd. (a); count 2); shooting at an

1 Undesignated statutory references are to the Code of Civil Procedure.

2.
inhabited dwelling (id., § 246; count 3); discharge of a firearm with gross negligence
(id., § 246.3, subd. (a); count 4); assault with a firearm (id., § 245, subd. (a)(2); count 5);
battery with serious bodily injury (id., § 243, subd. (d); count 6); possession of a firearm
by a felon (id., § 29800, subd. (a)(1); count 7); possession of ammunition by a felon
(id., § 30305, subd. (a)(1); count 8); armed criminal action (id., § 25800, subd. (a);
count 9); and vandalism over $400 (id., § 594, subd. (b)(1); count 10). Count 10 was
later amended to be charged as a misdemeanor. Additionally, the information included
the following special allegations: personal use of a firearm and personal and intentional
discharge of a firearm (id., § 12022.53, subds. (b), (c); as to count 1); use of a firearm
(id., § 12022.5, subd. (a); as to counts 2 and 6); and infliction of great bodily injury (id.,
§ 12022.7, subd. (a); as to counts 1, 2 and 5). In connection with all counts, the first
amended information alleged circumstances in aggravation under the California Rules of
Court. Defendant waived his right to a jury trial on the circumstances in aggravation.
On August 1, 2024, the jury found defendant guilty of all counts save count 4 and
found true each of the enhancement allegations as to counts 1, 2, 5, and 6. After a
bifurcated hearing outside of the presence of the jury, the court found true all
circumstances in aggravation.
On August 29, 2024, the trial court sentenced defendant to four years (the middle
term) on count 1, plus 20 years for the Penal Code section 12022.53, subdivision (c)
enhancement, plus three years for the great bodily injury enhancement, for a total of
27 years. The trial court further imposed a concurrent 180-day term on count 10; the
sentences on the remaining counts, including a 10-year term on the Penal Code
section 12022.53, subdivision (b) enhancement, were stayed under Penal Code
section 654.
Defendant filed a notice of appeal on September 16, 2024.

3.
FACTUAL SUMMARY
On September 15, 2023, at approximately 1:20 a.m. in Ridgecrest, California,
defendant knocked “very hard” on the main door of a mobile home inhabited by 64-year-
old M.M. Defendant yelled, “[O]pen,” but M.M. refused as she did not know defendant.
Defendant then knocked on the back door “really hard,” broke the glass, and entered the
home. M.M. called her daughter on the phone, crying and screaming, “No. Please no.
Please no,” and “Police.” On the call, the daughter heard defendant cursing at M.M. and
telling her to be quiet; M.M.’s daughter hung up the phone and called 911. M.M. called
her daughter back and let it go to voicemail, recording the remainder of the encounter.
Defendant kicked in M.M.’s locked bedroom door and entered the room.
Defendant pointed a handgun at M.M. and told her he was looking for someone, saying a
woman’s name, but M.M. did not know this person. When M.M. told defendant she did
not speak English, defendant continued screaming at her. M.M. attempted to escape out
of the back door of the home, but defendant grabbed her by the arm “really hard,”
grabbed her hair, pulled her, and hit her “hard” on the head with the gun. The gun
discharged, striking the exterior wall of the mobile home and traveling into M.M.’s
bedroom. Defendant then pushed M.M. back into the bedroom, took her phone, and
locked her inside. M.M. saw defendant’s face and noted he wore a red sweatshirt. After
15 to 20 minutes, defendant left the residence.
M.M.’s daughter arrived at the mobile home park at the same time as law
enforcement. She saw a “guy with a red hoodie” running away and notified law
enforcement of this. Approximately 10 minutes later, officers apprehended defendant on
a nearby streetcorner; he was unarmed, sweating, and was not wearing a red sweatshirt.
Law enforcement located the handgun nearby; it had one bullet expended and was rolled
up in a red sweatshirt. Security footage from that time showed a person wearing a
sweatshirt go to the area where officers found the red sweatshirt, then leave having
removed it. The results of DNA testing constituted “strong support for a match” of

4.
defendant’s DNA on the gun and sweatshirt. There were also multiple similarities
between the shoeprints found outside M.M.’s home and the design, tread, and wear
pattern of defendant’s shoes. Law enforcement found M.M.’s phone in a dumpster in the
mobile home park.
Paramedics arrived and tended to M.M., who had a bruise on her head and
bloodied bare feet. As M.M. and her daughter were sitting in the ambulance outside of
the house, law enforcement presented defendant, and M.M. identified him as the
assailant. M.M. was treated for her injuries at the hospital, and she suffered from
headaches that lasted a month.
DISCUSSION

I. Peremptory Challenge Against an African-American Juror with Relatives
Who Had Interactions with the Criminal Justice System
Defendant first asserts the trial court violated section 231.7 when it permitted the
prosecutor to exercise a peremptory challenge against a prospective juror who had
identified as African-American because the prospective juror’s relatives had committed
crimes. The People contend there was no racial component to the use of the peremptory,
noting the prosecutor’s concern about the prospective juror’s evasiveness and inability to
read, understand, and process information. We find the prosecutor’s stated reasons for
exercising a peremptory against the African-American prospective juror violate the
prohibitions of section 231.7. We therefore reverse and remand for a new trial.
A. Additional Background
During voir dire, the trial court questioned prospective juror M.W. alongside the
other prospective jurors. M.W. stated he was 72 years old, was married with 10 children,
and identified as an African-American. He was retired from a warehouse job, had
completed the 11th grade, and had lived in Bakersfield his entire life. Out of the presence
of the other jurors, the trial court disclosed it had assisted M.W. in filling out the juror
questionnaire, as M.W. indicated he was unable to read. On this form, M.W. indicated he

5.
suffered from headaches and lack of “focus” and burning eyes, and that he used aspirin
and eyedrops for those problems. The court asked M.W. if he could raise his hand if he
needed an accommodation or started losing focus during a trial, and M.W. said he could.
M.W. could not say if his impairment would hinder his ability to serve as a juror, but he
confirmed he was able to focus on the court’s questions during voir dire.
Later, also outside the presence of the other prospective jurors, the court
questioned M.W. about his experience with the criminal justice system that included the
following exchange:

“[THE COURT:] Do you have an overall opinion of the criminal
justice system? Your options are: Very positive, somewhat positive,
neutral, very negative or somewhat negative.

“[M.W.:] I’m positive about it.

“Q. You’re positive about it?

“A. Mm-hmm.

“Q. Do you have any specific comments other than just you have
a positive view of the justice system?

“A. No.

“Q. Have you or someone close to you – [¶] When I’m talking
about somebody close to you, I’m talking about somebody you interact
with on either throughout your life on a regular basis or currently on a
regular basis. I’m not talking about somebody that maybe 40 years ago you
knew and haven’t had contact with since high school or something like that.
You know what I mean? [¶] Have you or someone close to you been the
victim of a crime or affected by crime?

“A. My niece got murdered last year.

“Q. Was that here in Kern County?

“A. Yes.

“Q. Do you know if anybody has been arrested?

6.
“A. Well, he was arrested but they cut him loose.

“Q. So somebody was arrested but they were released?

“A. They were released.

“Q. There was no trial?

“A. Well, they took him to trial. They let him out on bail then
they took him back to trial and they let him go.

“Q. You said that was here in Kern County?

“A. Yes, here in Bakersfield.

“Q. Did you go to the trial at all?

“A. Nope.

“Q. Is there anything related to your niece’s situation that would
impact your ability to set that aside and judge [defendant’s] case on its own
merit and on its own facts?

“A. Yes.

“Q. You could do that?

“A. Mm-hmm.

“Q. Have you or someone close to you been the witness to a
crime?

“A. Not that I know of.

“Q. Have you or someone close to you been accused of a crime?

“A. Not lately.

“Q. Are you or anyone close to you employed currently or retired
from law enforcement? That would include corrections or probation.

“A. My grandson, he was a guard at the prison. My stepson, he
was a guard at the prison.

“Q. Have you or anyone close to you had a significant experience
either good or bad with law enforcement?

7.
“A. No.

“Q. Do you have any opinions generally about law enforcement?
Do you think they do good, bad, some are good, some are bad?

“A. I only had one experience with them and I looked at it as I
was in the wrong place at the wrong time.

“Q. So no real strong opinions about law enforcement?

“A. No.” (Boldface omitted.)
The court’s remaining questions to M.W. concerned his prior jury service, whether he
had any knowledge of defendant’s case or the anticipated witnesses, or any other issues
or biases that would impair his impartiality; each time, M.W. responded with brief
answers. Later, the court again questioned M.W. about his experience with his niece’s
murder, asking whether that would impact his judgment in defendant’s case. M.W.
confirmed it would not, and confirmed he could decide defendant’s case based on the
evidence and the law. The court observed, “You look like a man with common sense,”
and M.W. responded, “I hope so.”
The next day, M.W. agreed with defense counsel’s statements (as did other jurors)
that law enforcement could harbor biases, and the jurors would need to weigh all
witnesses’ testimony. During the prosecutor’s questioning, M.W. agreed that a
mastermind, aider and abettor, thief, and getaway driver could all suffer convictions for
robbing a store, assuming the evidence supported these charges. The prosecutor
eventually returned to questioning M.W. about his relationship to others who had been
convicted of crimes:

“[PROSECUTOR]: And then, [M.W.], we spoke yesterday a little
bit apart from the other jurors. I wanted to ask you about the questionnaire
questions and correct me if I got this wrong but there was a point where it
asked if anyone close to you has been accused of a crime and I had written
down your response as ‘Not lately.’

“[M.W.]: Not lately.

8.
“[PROSECUTOR]: Can you help me understand what that means.

“[M.W.]: Well, when you’re born in a big family, 13 of us, a lot
commit crimes.

“[PROSECUTOR]: You say 13 of us?

“[M.W.]: Yes.· I’m the seventh son. I got six sisters and six
brothers.

“[PROSECUTOR]: And then you talked about having I think a total
of ten.

“[M.W.]: Yes. Well –

“[PROSECUTOR]: Children of your own.

“[M.W.]: My five and her five. They’re all grown.

“[PROSECUTOR]: The types of crimes that people close to you
have been accused of, what types of crimes are we talking about?

“[M.W.]: Well, like I said, my niece was murdered. I got a nephew
up in Sacramento who just got shot in a bar last week and he died and I got
another nephew who got shot and he died. And I had a bunch of nephews
and brothers who went to jail for crimes. Like I said it’s a lot.

“[PROSECUTOR]: Sounds like a lot.

“[M.W.]: Yes.

“[PROSECUTOR]: You mentioned the one – the nephew in
Sacramento. Did you have a nephew in the Bakersfield area?

“[M.W.]: Yes, I did.

“[PROSECUTOR]: And he was shot and died here as well?

“[M.W.]: Yes.

“[PROSECUTOR]: Does the name [E.W.] sound familiar?

“[M.W.]: That’s my nephew.

“[PROSECUTOR]: How about [C.W.]?

9.
“[M.W.]: That’s my nephew. Anyone that carries [my last] name is
my nephew.

“[PROSECUTOR]: That helps. With all of that that’s happened to
your family and people that you know, do you have – you must have some
thoughts about the criminal justice system in general.

“[M.W.]: Well, I have different kind of opinion but I wasn’t there at
the time they did them and they did what they did and I can’t judge them on
what happened between them and what’s happening in my life. I keep my
opinion to me and I let them do what they do in their life.

“[PROSECUTOR]: Do you have any reason to think anyone in your
family has been treated unfairly by the criminal justice system?

“[M.W.]: Well, growing up I did but when you got six brothers and
a lot of them did – a few of them did a lot of crime and been to prison
sometimes you think about it but they were there and I wasn’t, so I couldn’t
– that’s the opinion of the police or the justice system because I wasn’t
there to judge what was going on.

“[PROSECUTOR]: I think that’s a fair conclusion. One of the
things about being a juror is that you weren’t there. You weren’t there for
the crime that happened in this case, if one happened at all. And so as a
juror, you’re going to be asked to make a conclusion despite the fact that
you don’t have personal knowledge, you don’t know what [defendant] did
or didn’t. Are you going to be able to come to a conclusion or are you
going to say similar to how you might have handled some issues in your
family and say well how am I supposed to know, I wasn’t there?

“[M.W.]: I wasn’t there so I got to give him my own opinion after I
hear the – I mean the trial go through and you give your opinion, he gives
his opinion what happens on his and you give your opinion, I got to go on
the judgment of what I think on how I handle is he guilty or not guilty.

“[PROSECUTOR]: And this is my – I call this – [¶] Thank you,
[M.W.] I appreciate that.”
Both the defense and prosecution agreed that there was no reason to strike any of
the potential jurors for cause. When the court turned to the parties’ peremptory
challenges, the prosecutor executed two in total, the second of which was M.W.

10.
Defendant objected, stating, “Your Honor, I’ll note my objection,” and the court stated it
would take up the objection later.
Outside the presence of the jury, defense counsel stated it was making “a Batson-
Wheeler type of objection.”2 (Italics added.) Counsel noted the importance of the racial
composition of the jury as related to defendant’s race, African-American. He stated
M.W. “was one I think only of two African [-] American jurors . . . in the entire room.”
Defense counsel argued M.W.’s reading impairment was not a valid reason to excuse
him, noting M.W. “was able to fully interact and answered all questions well.” Counsel
also noted M.W. answered the prosecutor’s questions about his large family, arguing
M.W. reaffirmed that these relationships would not put him in a position to fairly judge
the case.
The prosecutor then argued his “initial concern” in having M.W. on the jury was
that he appeared unable to read (either through a medical condition or elsewise), and this
could make it difficult for the prosecutor to rely on printed references for the DNA
evidence and printed jury instructions in closing. The prosecutor then stated:

“I will note that [M.W.] quite frankly seemed like a nice guy. But the
reason I asked him about his relationships with others was because of the
question that he asked – was asked of the Court when the Court was
verbally doing the questionnaire with him and asked specifically about does
anyone you know been accused of a crime and his answer was not lately
and he said nothing more about the subject. That struck me because [his
last name] in Bakersfield is very well known particularly for prosecutors.
When I heard [his last name], it reminded me of several cases that we have
pending including a shooting case including [C.W.]. It reminded me of
[E.W.] who was shot and killed when he attempted to assault an owner of a
convenience store . . . several years ago. It reminded me of a conviction
that we got less than a year ago against [T.W.] for a first-degree murder
conviction. It reminded me of another murder conviction of a [C.W.]. And
when I spoke with [M.W.], I was trying to get information to understand

2 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978)
22 Cal.3d 258 (Wheeler).

11.
what, if any, connection he might have with [people who share his last
name] that are common in Bakersfield that are on top of having multiple
pending cases involving shootings, they’re well known in the gang
community, which as a prosecutor I did about ten years in the gang unit in
Kern County where I personally prosecuted several members of [the W.]
family for exactly these types of crimes. And when [M.W.] who was
present basically said the first name that I brought up with him was [C.W.]
and he said yep I know who that is. That’s my cousin. And then [E.W.],
yep I know who that is. Yes, that’s the one that was shot and killed. He
made it very clear that pretty much the entire [W.] community in
Bakersfield is related to him. And then I started asking him the next
question which for me was, well, if you have all of this involvement, your
family has been shot at, has shot at others, has killed people, has been
convicted of killing people, you know, how does that impact your view of
the criminal justice system and his answer to me was well I wasn’t there so
I don’t really know so that’s they’re [sic] own issue. And to me with the
sheer number of issues that the [W.] family has been present in – gang
related shootings, killings and murders – that answer was completely
unacceptable to me. It was as unacceptable as his initial answer, which was
‘Not lately.’ When so many people that he knows ha[ve] either been shot
at and killed or shot at and killed others, the fact that he went through that
entire questionnaire which is asking over and over directly verbally from
the Court being asked questions whether people have been accused of
crimes or victims of crimes, the fact that none of that was brought up in the
Court’s initial questioning I found evasive and I found concerning. So for a
combination of all of those reasons I was not comfortable having [M.W.]
serve on this jury.”
The court overruled defendant’s objection, stating in full:

“At this time I will deny the Batson-Wheeler motion. I do not
believe the challenge was exercised due to [M.W.]’s membership in a
cognizable class. I think that there were independent reasons that were
personal to [M.W.] as opposed to simply the fact that he is a member of
that cognizable class and based on the totality of the circumstances, I do not
believe that there was a violation of the Batson-Wheeler case law as well as
California Code of Civil Procedure Section 231.7, et seq. I do think we
have a clear clean record on that[.]” (Italics added.)
B. Standard of Review
Our standard of review for section 231.7 claims is defined by statute as follows:

12.
“The denial of an objection made under this section shall be
reviewed by the appellate court de novo, with the trial court’s express
factual findings reviewed for substantial evidence. The appellate court
shall not impute to the trial court any findings, including findings of a
prospective juror’s demeanor, that the trial court did not expressly state on
the record. The reviewing court shall consider only reasons actually given
under [section 231.7,] subdivision (c) and shall not speculate as to or
consider reasons that were not given to explain either the party’s use of the
peremptory challenge or the party’s failure to challenge similarly situated
jurors who are not members of the same cognizable group as the challenged
juror, regardless of whether the moving party made a comparative analysis
argument in the trial court. Should the appellate court determine that the
objection was erroneously denied, that error shall be deemed prejudicial,
the judgment shall be reversed, and the case remanded for a new trial.”
(§ 231.7, subd. (j).)
C. Analysis
Peremptory challenges have been described as “a long-standing feature of civil
and criminal adjudication.” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1157.) Courts
have long held that “the exercise of even a single peremptory challenge solely on the
basis of race or ethnicity offends the guarantee of equal protection of the laws under the
Fourteenth Amendment to the federal Constitution[, as well as] a defendant’s right to trial
by a jury drawn from a representative cross-section of the community under article I,
section 16 of the state Constitution.” (Ibid., citing Batson, supra, 476 U.S. 79 and
Wheeler, supra, 22 Cal.3d 258.)
However, courts have often recognized the shortcomings of Batson/Wheeler,
especially in the realm of implicit and institutional biases. (See People v. Bryant (2019)
40 Cal.App.5th 525, 543–549 (conc. opn. of Humes, J.) [noting Batson/Wheeler
framework is ineffective at eliminating purposeful discrimination and may even facilitate
implicit bias in the jury selection process].) Recognizing this, the Legislature enacted
Assembly Bill No. 3070 (2019–2020 Reg. Sess.) (Assembly Bill No. 3070), which
created new procedures for identifying unlawful discrimination in the use of peremptory
challenges. (See Legis. Counsel’s Dig., Assem. Bill No. 3070, Stats. 2020, ch. 318,

13.
§ 1(b), Summary Dig., p. 2. [noting Batson/Wheeler’s “requiring proof of intentional bias
renders the procedure ineffective” and finding “many of the reasons routinely advanced
to justify the exclusion of jurors from protected groups are in fact associated with
stereotypes about those groups or otherwise based on unlawful discrimination”].)
Assembly Bill No. 3070 codified section 231.7, at issue here. (Stats. 2020, ch. 318; see
§ 231.7, subd. (d)(2)(C) [defining “unconscious bias” as including “implicit and
institutional biases”].)
Section 231.7, subdivision (a) prohibits the use of “a peremptory challenge to
remove a prospective juror on the basis of [their] race, ethnicity, gender, gender identity,
sexual orientation, national origin, or religious affiliation, or the perceived membership of
the prospective juror in any of those groups.” If a party or the court believes this
provision has been violated, the statute requires a motion for relief, and the court is to
hear arguments outside of the presence of the potential jurors. (§ 231.7, subd. (b).) The
party exercising the peremptory challenge is required to state the reasons for its use, and
thereafter the court is to evaluate the arguments “in light of the totality of the
circumstances,” considering “only the reasons actually given” and refraining from
speculating on, or assuming the existence of, other possible justifications. (§ 231.7,
subds. (c), (d)(1).) The statute lists several nonexclusive factors the court may consider
when evaluating the totality, including whether “[t]he objecting party is a member of the
same perceived cognizable group as the challenged juror.” (§ 231.7, subd. (d)(3)(A)(i).)
The Legislature has prescribed that:

“If the court determines there is a substantial likelihood that an objectively
reasonable person would view race, ethnicity, gender, gender identity,
sexual orientation, national origin, or religious affiliation, or perceived
membership in any of those groups, as a factor in the use of the peremptory
challenge, then the objection shall be sustained. The court need not find
purposeful discrimination to sustain the objection.” (§ 231.7, subd. (d)(1).)

14.
“[A]n objectively reasonable person is aware that unconscious bias, in addition to
purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the
State of California.” (§ 231.7, subd. (d)(2)(A).) “ ‘[S]ubstantial likelihood’ means more
than a mere possibility but less than a [preponderance].” (§ 231.7, subd. (d)(2)(B).) The
court is to “explain the reasons for its ruling on the record.” (§ 231.7, subd. (d)(1).)
But the Legislature did not stop with this outline of the general procedure.
Section 231.7 goes on to list circumstances where a peremptory challenge is presumed
invalid absent some further showing by the proponent. Relevant here, subdivision (e)
states:
“A peremptory challenge for any of the following reasons is
presumed to be invalid unless the party exercising the peremptory challenge
can show by clear and convincing evidence that an objectively reasonable
person would view the rationale as unrelated to a prospective juror’s race,
ethnicity, gender, gender identity, sexual orientation, national origin, or
religious affiliation, or perceived membership in any of those groups, and
that the reasons articulated bear on the prospective juror’s ability to be fair
and impartial in the case: [¶] . . . [¶]

“(3) Having a close relationship with people who have been stopped,
arrested, or convicted of a crime.”
“ ‘[C]lear and convincing’ refers to the degree of certainty the factfinder must have in
determining whether the reasons given for the exercise of a peremptory challenge are
unrelated to the prospective juror’s cognizable group membership, bearing in mind
conscious and unconscious bias.” (§ 231.7, subd. (f).) The factfinder can make this
determination if “it is highly probable that the reasons given for the exercise of a
peremptory challenge are unrelated to conscious or unconscious bias and are instead
specific to the juror and bear on that juror’s ability to be fair and impartial in the case.”
(Ibid.)
As noted above, the court and prosecutor asked prospective juror M.W. multiple
questions throughout voir dire, many common to the prospective jurors. Throughout,
M.W. reasserted his general ability to be fair and impartial, stated the court’s proposed

15.
accommodations for his physical impairments could help him focus at trial, and appeared
to comprehend the proceedings and the questions asked of him by the court, defense
counsel, and the prosecutor. At the conclusion of voir dire, the court described M.W. as
“a man with common sense.” Neither side attempted to strike M.W. (or any other juror)
for cause, but when the court turned to the parties’ peremptory challenges, the prosecutor
exercised two in total, the second of which was as to M.W. Defendant objected, and the
court noted it would take up the objection later. This tracks the procedures outlined in
section 231.7, subdivision (b), and we find the statute sufficiently raised before the trial
court, given that the court overruled defendant’s objection under both section 231.7 and
Batson/Wheeler. (People v. Jaime (2023) 91 Cal.App.5th 941, 946 (Jaime) [finding no
forfeiture despite defense counsel’s failure to explicitly cite § 231.7 when objecting,
given the substance of the arguments below and the trial court’s analysis].)
Outside the presence of the jury, defense counsel argued for the importance of the
racial composition of the jury, noting that defendant’s race was African-American and
that M.W. “was one of I think only two African [-] American jurors . . . in the entire
room.” The court then requested the prosecutor state the reasons for his use of the
peremptory challenge on M.W. Though the prosecutor briefly mentioned a concern
about M.W.’s ability to read, he quickly turned to the subject of M.W.’s family ties,
describing in detail M.W.’s relationship with four relatives who had been either charged
with or convicted of a crime. The Legislature has deemed such a use of a peremptory
challenge “presumptively invalid.” (§ 231.7, subd. (e)(3).) Thus, the question becomes
whether the record demonstrates there were “clear and convincing” reasons to overcome
this presumption. (§ 231.7, subd. (f).) We find there are not.
The record indicates there were concerns with M.W.’s being evasive in answering
questions. However, aside from M.W.’s initial answer of “[n]ot lately” early in voir dire,
the question and answer colloquy reveals M.W. did not hide his connections to his family
and was forthright that many of them had committed crimes. Thus, we cannot say the

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stated rationale is “clear and convincing,” as is required to rebut the presumption of
invalidity. (§ 231.7, subd. (f); cf. People v. Garcia (2025) 115 Cal.App.5th 92, 109
(Garcia) [rejecting § 231.7 argument on appeal where the record supported the
prosecutor’s stated reasons for exercising a peremptory challenge against a Black
prospective juror]; see Rice v. Collins (2006) 546 U.S. 333, 343 (conc. opn. of Breyer, J.)
[finding the lack of a clear explanation of why peremptory challenges were exercised
“may well reflect the more general fact that the exercise of a peremptory challenge can
rest upon instinct not reason”].) Further, M.W. appears to have been rehabilitated when
he stated his relatives’ behavior and choices were their own and would not affect his
ability to decide defendant’s case on the facts and law. (Cf. People v. Jimenez (2024)
99 Cal.App.5th 534, 544 [finding clear and convincing reasons for use of peremptory
challenge where a prospective juror repeatedly acknowledged she would have trouble
setting aside her bias against law enforcement].) As another court has noted in
interpreting section 231.7, “[t]o allow a party to bury presumptively invalid reasons under
an overarching facially neutral reason . . . without the required findings under
section 231.7, subdivision (f), would render section 231.7, subdivision (e) ineffective.”
(People v. Uriostegui (2024) 101 Cal.App.5th 271, 280 (Uriostegui).)
Our inquiry is further complicated by the trial court’s ruling on defendant’s
motion. Section 231.7, subdivision (j), provides us with de novo review authority, but
explicitly limits our review of a trial court’s “express factual findings” for substantial
evidence. However, in ruling on defendant’s objection, the trial court only stated its
conclusion and a general belief that “we have a clear clean record.” Thus, there are no
express factual findings to defer to, and in fact the trial court’s early observation about
M.W. was that he was a “man with common sense.” Based on the record before us,
M.W. does not appear to have been evasive or to otherwise have demonstrated an
inability to be fair and impartial. (Cf. Garcia, supra, 115 Cal.App.5th at p. 109.)

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We are aware that, under the previous framework of Batson and Wheeler,
rationales such as a potential juror’s halting, equivocal, or conflicting answers could
justify a peremptory strike and support an affirmance. (See, e.g., People v. Bivert (2011)
52 Cal.4th 96, 111‒112.) However, we are mindful of the Legislature’s command that
section 231.7 “ ‘be broadly construed to further the purpose of eliminating the use of
group stereotypes and discrimination, whether based on conscious or unconscious bias, in
the exercise of peremptory challenges.’ ” (People v. Ortiz (2023) 96 Cal.App.5th 768,
791–792.) The record indicates there was a presumptively invalid reason for excusing
M.W. on a peremptory challenge and does not contain “clear and convincing evidence”
to rebut that presumption. (§ 231.7, subd. (e); see id., subd. (e)(3); see also id.,
subd. (d)(2)(A) [reminding that “an objectively reasonable person is aware that
unconscious bias, in addition to purposeful discrimination, have resulted in the unfair
exclusion of potential jurors in the State of California”].) We find erroneous the trial
court’s overruling of defendant’s objection to the use of a peremptory challenge against
M.W.; the Legislature has left no recourse but to reverse the judgment and remand this
case for a new trial. (§ 231.7, subd. (j); see Uriostegui, supra, 101 Cal.App.5th at p. 280;
Jaime, supra, 91 Cal.App.5th at p. 946.)
II. Witness’s “Colored” Testimony, under the Racial Justice Act
Defendant next contends the tenets of the Racial Justice Act were violated when
the prosecution allowed one of its witnesses to testify that defendant was a “colored”
person. Defendant argues that if we find forfeiture, we should find trial counsel
ineffective for failing to object to this testimony.
Given that we are reversing the judgment and remanding for a new trial, this claim
is arguably moot. However, as it is possible the witness may again be required to testify,
we offer a brief analysis of defendant’s argument.

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A. Additional Background
At trial, the prosecution produced M.M.’s daughter as a witness. When the
prosecutor asked the daughter what she remembered about the “guy in the hoodie,” the
following exchange occurred:

“[WITNESS]: Bald guy, colored guy, red hoodie. That’s all I
remember.

“[PROSECUTOR]: A lot of times when officers talk to witnesses,
they ask them to describe the race of the person.

“[WITNESS]: Yes.

“[PROSECUTOR]: What was the race of the person that you saw?

“[WITNESS]: African[-]American.” (Boldface omitted.)
Later, when the prosecutor asked, “How did what happened to [M.M.] that night impact
her in the days and weeks that followed?” M.M.’s daughter stated:

“Until this day she’s still afraid of people. She went back to work. She’s
working. But even at her job, when she’s working and she hears a loud
noise sometimes she’s [sic] screams or she starts crying out of nowhere.
She gets nervous around colored people. It’s not over yet for her.”
Defendant lodged an objection under Evidence Code section 352, which was overruled
without further discussion.
B. Analysis
The People argue defendant forfeited his challenge under the Racial Justice Act.
Defendant did not object to the witness’s first statement, but did offer an objection on
Evidence Code 352 grounds after the witness’s second statement. To obviate a lengthy
discussion on forfeiture, we exercise our discretion to reach the merits of defendant’s
argument.
Penal Code section 745 prohibits the state from “seek[ing] or obtain[ing] a
criminal conviction . . . on the basis of race[.]” (Pen. Code, § 745, subd. (a).) We assume
for purposes of our analysis that the witness’s use of the term “colored” to describe

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defendant, an African-American man, implicates racial bias. (See People v. Stubblefield
(2024) 107 Cal.App.5th 896, 918 [noting “[t]he contextual basis for an implicit appeal to
racial bias may consist of facts or events so commonly known—e.g., the historical fact of
slavery—that it may be reasonable to assume a listener is aware of them”].) However,
defendant’s claim fails because the Legislature explicitly limited the statute’s application
to “[t]he judge, an attorney in the case, a law enforcement officer involved in the case, an
expert witness, or juror[.]” (Pen. Code, § 745, subd. (a)(1).)
Defendant contends that limiting the reach of the statute so that it does not apply
to witnesses would allow the state to “insert bias into its presentation through its
witnesses and escape responsibility for it.” There could conceivably be a case where the
prosecution deliberately leads a witness to “exhibit[] bias or animus towards the
defendant because of the defendant’s race[.]” (Pen. Code, § 745, subd. (a)(1).) However,
a review of the record indicates the prosecutor did not solicit the witness’s comment
here—and in fact attempted to lead her away from the use of the pejorative immediately
after the first time she used it—but the witness used the term twice of her own volition.
Thus, this is not a case where the insertion of bias can be attributed to the state.3
III. Sufficiency of Evidence for Intentional Discharge of a Weapon
Lastly, defendant contends the evidence was insufficient to support a true finding
on the Penal Code section 12022.53, subdivision (c) firearm enhancement. He argues the
evidence only shows that when he struck M.M. with the gun, it accidentally discharged
and so cannot support a finding that he intentionally fired the gun. We disagree.

3 This is not to say this issue cannot be avoided, should this case return to trial and
the witness be called to testify again. The parties now know the witness’s preference for
this term as a descriptor. The prosecution could easily remind the witness to avoid
injecting her own racial bias into the proceedings or could also ask leading questions to
solicit relevant facts—the goal being to afford defendant the dignity he deserves as he
proceeds through our system of justice.

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A. Standard of Review
In considering a challenge to the sufficiency of the evidence, we “ ‘ “ ‘must review
the whole record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence – that is, evidence which is reasonable, credible, and of
solid value – such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” ’ ” (People v. Brooks (2017) 3 Cal.5th 1, 57 (Brooks).) We presume
“ ‘ “the existence of every fact the [jury] could reasonably deduce from the evidence.” ’ ”
(People v. Lee (2011) 51 Cal.4th 620, 632 (Lee).) “A reversal for insufficient evidence
‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support” ’ the jury’s verdict.” (People v. Zamudio (2008)
43 Cal.4th 327, 357.) The defendant carries the burden of establishing that the evidence
was insufficient to sustain a conviction. (People v. Sanghera (2006) 139 Cal.App.4th
1567, 1574.)
B. Analysis
The first amended information attached two firearm enhancements to count 1,
including that defendant personally and intentionally discharged a firearm in the
commission of a first degree residential robbery. The jury found all enhancement
allegations true. But defendant argues there is no evidence of “reasonable, credible, and
of solid value” to support the jury’s finding of an intentional firing (People v. Johnson
(1980) 26 Cal.3d 557, 578), and Penal Code section 12022.53, subdivision (c) does not
punish the accidental discharge of a firearm (see In re Ferrell (2023) 14 Cal.5th 593,
603‒604).
Defendant is correct the evidence could have supported a finding that the
discharge of the gun was accidental. However, we resolve conflicts in favor of the
judgment (Brooks, supra, 3 Cal.5th at p. 57), and on this record, we find a rational jury
could find defendant intentionally discharged the gun. M.M.’s testimony and the
voicemail recording demonstrated defendant broke into M.M.’s mobile home, pointed a

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gun at her, and actively tried to keep her detained in her bedroom while he searched for
someone else. When M.M. attempted to escape, defendant grabbed her by the arm
“really hard,” grabbed her hair, pulled her, and hit her “hard” on the head with the gun.
The gun discharged just after he struck her. Defendant then pushed M.M. back into the
bedroom, took her phone, and locked her inside. These facts indicate defendant intended
to control M.M.’s movements, and a reasonable jury could infer firing the gun as M.M.
attempted to escape was a part of this attempt at control. This is not speculation as
defendant argues (see People v. Memro (1985) 38 Cal.3d 658, 695), but a reasonable
deduction from the evidence (Lee, supra, 51 Cal.4th at p. 632) and indicative of the
“enormous burden” defendant bears in his challenge to the sufficiency of the evidence
(People v. Sanchez (2003) 113 Cal.App.4th 325, 330).
For these reasons, we reject defendant’s sufficiency of the evidence challenge to
the Penal Code section 12022.53, subdivision (c) enhancement. Upon return to the trial
court, the prosecution will not be barred from including this enhancement allegation in
any retrial.
DISPOSITION
The judgment of conviction is reversed and the case is remanded for a new trial.

DETJEN, Acting P. J.
WE CONCUR:

PEÑA, J.

HARRELL, J.

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