People v. Allen

9 Cal. Rptr. 3d 374, 115 Cal. App. 4th 542, 2004 Cal. Daily Op. Serv. 975, 2004 Daily Journal DAR 1191, 2004 Cal. App. LEXIS 133

• Court: California Court of Appeal
• Decided: January 30, 2004
• Docket: A093927
• Status: Published

Opinion

Opinion

POLLAK, J.

Defendant Darrell Allen was sentenced to nine years in prison after a jury convicted him of theft, receiving stolen property, possession of a firearm, and resisting arrest. On appeal, he contends the prosecutor impermissibly exercised peremptory challenges to remove two African-American women from his jury. (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).) He also contends the trial court erred by failing to give a unanimity instruction regarding the receiving stolen property count and by giving CALJIC No. 17.41.1. While in the unpublished portion of this opinion we reject one of defendant’s asserted instructional errors, and find it unnecessary to determine the prejudicial effect of the other, in the published portion we consider whether the judgment must be reversed because the trial court failed to correct the prosecutor’s impermissible use of peremptory challenges. After this court had concluded that reversal is required on this ground, the Supreme Court remanded the case for reconsideration in light of the intervening decision in People v. Reynoso (2003) 31 Cal.4th 903 [3 Cal.Rptr.3d 769, 74 P.3d 852] (Reynoso). We have carefully reviewed that decision, and conclude that there are significant differences between the facts of that case and this, so that our initial conclusion remains correct. Hence, we again reverse.

I. Factual and Procedural History

A. The Offense *

B. Jury Selection

At the start of the jury trial the trial judge conducted voir dire of the potential jurors including two African-American women later challenged by the prosecutor. 2 Ms. W. stated that she was a benefit authorizer with the Social Security Administration and that her home had been burglarized about four years prior. She confirmed that despite the burglary experience, she believed she could be fair to both sides. Ms. T. stated that she was a program analyst for Kaiser and that she had two cousins who worked in law enforcement. The court also asked her why she did not answer question number 11 on the juror questionnaire that asked: “Do you have any moral, religious or other principles which would make it difficult to determine whether someone’s guilty or not guilty of a crime?” Ms. T. answered: “Because I think moral or religious and other covers a wide range, and I’d like for this to address this particular situation. I would be fair and impartial or try to be fair and impartial. I just circled it because I didn’t understand what was being asked of me at the time.” She then confirmed without reservation that she could make her decision based upon the law that the court would give her, the evidence she would hear or see in the courtroom, and her common sense, and not any other preconceived notion.

The prosecutor exercised his third peremptory challenge to excuse Ms. W. After he excused Ms. T. with his sixth peremptory challenge, defense counsel made a Batson/Wheeler motion to dismiss the jury panel and recommence jury selection based upon the prosecutor’s impermissible use of peremptory challenges. The trial judge found that a prima facie case of discrimination had been made, stating that he could not understand why the prosecutor had excused the two potential jurors. The judge asked the prosecutor for his reasons. As to Ms. W., the prosecutor’s explanation, in full, was as follows: “The first woman, her very response to your answers, and her demeanor, and not only dress but how she took her seat. I don’t know if anyone else noticed anything, but it’s my experience, given the number of trials I’ve done, that type of juror, whether it’s a personality conflict with me or what have you, but they tend to, in my opinion, disregard their duty as a juror and kind of have more of an independent thinking.” As to Ms. T, the prosecutor explained in full: “Ms. T. I had intended to leave on the panel when I passed the first time. Then I remembered that she circled No. 11, and I had put a note on my pad, and I didn’t see it when I said pass the first time. And I remembered that she had questions as to what religious or moral convictions meant, and that concerned her, and that gave me concern that she would question things that may be evident on their face and may not make the sort of juror that I would like for that reason.” The court denied defendant’s motion without asking the prosecutor any questions and without making any findings with respect to the proffered explanations.

C. Verdict and Judgment *

II. Discussion

A. Defendant’s Batson/Wheeler Motion

Defendant contends that the trial court erred by denying his Batson/Wheeler motion. He submits that the prosecutor’s reasons for challenging the only two African-American jurors in the box were not sufficiently specific to adequately explain any possible race-neutral reasons for doing so. Defendant also argues that the trial court failed to make a sincere, serious and reasoned inquiry into the prosecution’s explanations.

Under article I, section 16 of the California Constitution, a defendant’s right to trial by a representative jury is violated by the use of peremptory challenges to exclude jurors solely on the basis of group bias. (Wheeler, supra, 22 Cal.3d 258.) Batson affords similar protection to an accused under the federal Constitution’s equal protection clause. A court initially presumes that a party exercising peremptory challenges does so on a constitutionally permissible ground. (Wheeler, supra, 22 Cal.3d at p. 278.) A defendant who claims impermissible use has the initial burden of establishing a prima facie case of purposeful discrimination. (People v. Williams (1997) 16 Cal.4th 635, 663-664 [66 Cal.Rptr.2d 573, 941 P.2d 752].)

“ ‘[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination . . . , the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation ....’” (People v. Silva (2001) 25 Cal.4th 345, 384 [106 Cal.Rptr.2d 93, 21 P.3d 769].) “The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice.” (People v. Arias (1996) 13 Cal.4th 92, 136 [51 Cal.Rptr.2d 770, 913 P.2d 980].) A prospective juror may be excused based upon bare looks and gestures, hunches, and even arbitrary reasons. (See People v. Turner (1994) 8 Cal.4th 137, 165, 171 [32 Cal.Rptr.2d 762, 878 P.2d 521].) For example, in People v. Turner, supra, the court upheld a peremptory challenge where the juror’s body language seemed angry and hostile. (Id. at p. 170.) Similarly, in People v. Johnson (1989) 47 Cal.3d 1194, 1217-1218 [255 Cal.Rptr. 569, 767 P.2d 1047], the court found no impropriety where the prosecutor excused prospective jurors who looked nervous, who looked tired, who looked weird, who seemed unable to relate to the prosecutor, who had a very defensive body position, who were overweight and poorly groomed and seemed not to trust the prosecutor. As noted in Wheeler, “even less tangible evidence of potential bias may bring forth a peremptory challenge: either party may feel a mistrust of a juror’s objectivity on no more than the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another’ [citation]—upon entering the box the juror may have smiled at the defendant, for instance, or glared at him.” (Wheeler, supra, 22 Cal.3d at p. 275.)

“If a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination.” (People v. Silva, supra, 25 Cal.4th at p. 384.) “This demands of the

trial judge a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .” (People v. Hall (1983) 35 Cal.3d 161, 167-168 [197 Cal.Rptr. 71, 672 P.2d 854].) “[A] truly ‘reasoned attempt’ to evaluate the prosecutor’s explanations [citation] requires the court to address the challenged jurors individually to determine whether any one of them has been improperly excluded. In that process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutor’s exercise of the particular peremptory challenge.” (People v. Fuentes (1991) 54 Cal.3d 707, 720 [286 Cal.Rptr. 792, 818 P.2d 75].) “Preferably, in ruling on a Wheeler motion, the trial court should state expressly its determination as to the adequacy of the justification proffered with respect to each peremptory challenge.” (People v. Sims (1993) 5 Cal.4th 405, 431 [20 Cal.Rptr.2d 537, 853 P.2d 992].) Because Wheeler motions call upon trial judges’ personal observations, appellate courts generally accord great deference to their determination that a particular reason is genuine. (People v. Silva, supra, 25 Cal.4th at pp. 385-386.) However, “we do so only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. [Citations.] When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.” (Id. at p. 386.)

In Silva, the California Supreme Court held that the trial court failed to conduct a sincere and reasoned determination of the genuineness of the prosecutor’s proffered explanations for exercising his peremptory challenges. (People v. Silva, supra, 25 Cal.4th 345.) The court concluded that because the prosecutor gave reasons that misrepresented the record of voir dire, by quoting a misleading portion of a prospective juror’s answers concerning the death penalty, “the trial court erred in failing to point out the inconsistencies and to ask probing questions.” (Id. at pp. 376-377, 385; see also People v. Turner (1986) 42 Cal.3d 711, 727-728 [230 Cal.Rptr. 656, 726 P.2d 102] (Turner).)

Similar obligations of inquiry and analysis exist under federal law. For example, in U.S. v. Sherrills (8th Cir. 1991) 929 F.2d 393, 395, the court recognized that while inattentiveness may be a legitimate explanation, “determining who is and who is not attentive requires subjective judgments that are particularly susceptible to the kind of abuse prohibited by Batson ....[]□ These factors make the district court’s observations particularly crucial. We believe a prosecutor’s explanation of challenges on the grounds of inattentiveness deserves careful scrutiny by the district court, and special care by counsel to fully develop the record concerning the specific behavior by the venire members motivating counsel to make a peremptory challenge based on inattentiveness.” (See also Jordan v. Lefevre (2nd Cir. 2000) 206 F.3d 196, 200 [it is “error for the trial court to deny a Batson motion without explicitly adjudicating the credibility of the non-moving or challenging party’s race neutral explanations for its action in peremptorily striking potential jurors”]; Hatten v. State (Miss. 1993) 628 So.2d 294, 295-296, 298 [requiring the trial judge to make an on-the-record factual determination of each reason proffered by the State, including those based upon demeanor, protects the rights of defendant and potential jurors as well as makes a clear record for purposes of appellate review]; Williams v. State (Fla.App. 4 Dist. 1989) 547 So.2d 179 [where the state challenges a venireman for being inattentive, that rationale will be deemed pretextual unless the state’s rationale is either an uncontested matter of fact or is supported by observations made by the trial judge in the record].)

In Reynoso, the California Supreme Court first acknowledged that in People v. Fuentes, supra, 54 Cal.3d 707, it had “ lreemphasize[d] the trial court’s role in making an adequate record when dealing with a Wheeler motion. Notwithstanding the deference we give to a trial court’s determinations of credibility and sincerity, we can only do so when the court has clearly expressed its findings and rulings and the bases therefore.’ (Id. at p. 716, fn. 5.)” (Reynoso, supra, 31 Cal.4th at p. 929.) The court went on, however, to point out that “neither Fuentes nor Silva requires a trial court to make explicit and detailed findings for the record in every instance in which the court determines to credit a prosecutor’s demeanor-based reasons for exercising a peremptory challenge. . . . [f] Where ... the trial court is fully apprised of the nature of the defense challenge to the prosecutor’s exercise of a particular peremptory challenge, where the prosecutor’s reasons for excusing the juror are neither contradicted by the record nor inherently implausible . . . , and where nothing in the record is in conflict with the usual presumptions to be drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner, and that the trial court has properly made a sincere and reasoned evaluation of the prosecutor’s reasons for exercising his peremptory challenges, then those presumptions may be relied upon, and a Batson/Wheeler motion denied, notwithstanding that the record does not contain detailed findings regarding the reasons for the exercise of each such peremptory challenge.” (Ibid, citation omitted.) 4

In Reynoso, the court’s analysis was based on the premise that the prosecutor, in the second step of the procedure for evaluating a Batson/Wheeler motion, had given meaningful “occupation-and demeanor-based reasons” for excusing the prospective juror in question, Elizabeth G. (Reynoso, supra, 31 Cal.4th at p. 926; see also p. 920.) There, the prosecutor explained that he had excused Elizabeth G. because she was a customer service representative who he felt did not have enough educational experience, and because it appeared to him that she was not paying attention to the proceedings. (Id. at pp. 911, 923-926.) The prosecutor’s reasons were intelligible, and the only question was whether the trial court had satisfied its obligation to properly ensure that they were “sincere and legitimate.” (Id. at p. 924.) The prosecutor’s demeanor-based reasons—that Elizabeth G. was not paying attention to the proceedings and was not involved in the voir dire process—“were not too general or too vague and could validly support the peremptory excusal of Elizabeth G. if the reasons were shown to be sincere and genuine.” (Id. at p. 920; see also pp. 925-926.) The Reynoso court emphasized that the trial court should not focus on the objective reasonableness of those reasons, but on their subjective genuineness. (Id. at p. 924.)

Here, the trial court found that defendant made a prima facie showing of discrimination and the People do not challenge that finding on appeal. The prosecutor excused the only two African-American jurors in the jury box, both of whom had experiences or contacts that normally would be considered favorable to the prosecution, thereby demonstrating “ 1 “a strong likelihood” that they were challenged because of their group association.’ ” (People v. Williams, supra, 16 Cal.4th at pp. 663-664.) Thus, we move directly to an evaluation of the prosecutor’s proffered explanations.

The prosecutor’s reason for excluding Ms. T. is at best problematic. He excused her because “she had questions as to what religious or moral convictions meant, and that concerned her, and that gave me concern that she would question things that may be evident on their face and may not make the sort of juror that I would like for that reason.” While this explanation is racially neutral, it misstates the record. Ms. T. said that she did not understand what question number 11 was asking, not that she had questions as to what religious or moral convictions meant. Additional explanation and probing would have been helpful, but we need not pursue Ms. T.’s situation further and shall assume that the trial court was justified in accepting the prosecutor’s explanation for excusing her.

Whatever doubts there may be as to the sufficiency of the explanation for challenging Ms. T., the prosecutor’s reasons for excusing Ms. W. are incomprehensible, and there is nothing in the record to give them content. In Reynoso, the prosecutor did not explain his demeanor-based challenge by simply telling the judge that he did not like Elizabeth G.’s “demeanor,” but he explained that the prospective juror did not appear to be paying attention, and the reviewing courts were able to agree that “ ‘a somewhat inattentive prospective juror would be an appropriate concern.’ ” (Reynoso, supra, 31 Cal.4th at p. 920.) But simply saying that a peremptory challenge is based on “her demeanor” without a fuller description of what the prospective juror was or was not doing provides no indication of what the prosecutor observed, and no basis for the court to evaluate the genuineness of the purported non-discriihinatory reason for the challenge. “[H]er very response to your answers,” her “dress” and “how she took her seat” without additional elaboration are not responses that can be evaluated by the trial judge, and they certainly cannot be evaluated on appeal. 5 What specifically was Mrs. T. wearing, in what manner did she sit down that gave the prosecutor concern, and what response to which of the judge’s questions led him to the conclusion that she would disregard her duty as a juror and think independently? What is reflected in the record is Ms. W.’s repeated affirmation that, despite the prior burglary of her home, she believed she could be fair to both sides. While the trial judge presumably was in a position to observe Ms. W.’s dress and may or may not have observed how she seated herself, the judge could only guess what the prosecutor found troubling about them. Absent some additional explanation or probing by the court, the prosecutor’s reasons were simply “too general” and “too vague” for the court to possibly evaluate. (Cf. Reynoso, supra, 31 Cal.4th at p. 920.) They were hardly sufficient to demonstrate that the peremptory challenges were exercised “on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses—i.e., for reasons of specific bias as defined in Wheeler.” (Wheeler, supra, 22 Cal.3d at p. 282.)

In this respect, this case is remarkably similar to Turner, supra, 42 Cal.3d at page 725, in which the California Supreme Court rejected the prosecutor’s proffered race-neutral explanation that “ ‘something in [the juror’s] work’ would ‘not be good for the People’s case’ [as] so lacking in content as to amount to virtually no explanation.” 6 The Turner court stated, “If such vague remarks were held to satisfy the prosecution’s burden of rebutting a prima facie case of group discrimination, the defendant’s constitutional right to trial by a jury drawn from a representative cross-section of the community could be violated with impunity.” (Ibid.) Similarly, in Batson, the United States Supreme Court held that “the prosecutor must give ‘clear and reasonably spécific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” (Batson, supra, 476 U.S. at p. 98, fn. 20.) “[T]he prosecutor [may not] rebut the defendant’s [prima facie] case merely by denying that he had a discriminatory motive or ‘affirming] [his] good faith in making individual selections.’ [Citation.] If these general assertions were accepted as rebutting a defendant’s prima facie case, the Equal Protection Clause ‘would be but a vain and illusory requirement.’ [Citation.]” (Id. at p. 98; see also Commonwealth v. Rodriguez ( 2000) 431 Mass. 804 [731 N.E.2d 71, 75-76] [defense attorney’s explanation that he struck juror because “ ‘[the defendant] does not like her looks’ ” without further specificity is insufficient to justify ninth peremptory challenge of female juror, because explanation “does not describe qualities particular to the prospective juror” and “defense counsel could have made the same statement about every woman”]; Hatten v. State, supra, 628 So.2d at pp. 296, 298, [prosecutor’s explanation that he “ ‘did not like the appearance of [a juror], felt that he would not be a good juror to hear this case’ ” was properly rejected as pretextual and “ ‘may well have served as masks for actually racially discriminatory purposes’ ”].)

As in Turner, supra, 42 Cal.3d 711, 7 the inadequacy of the prosecutor’s explanation was compounded by the manner in which the trial court addressed defendant’s motion. While Reynoso holds that the trial judge was not required “to make explicit and detailed findings for the record” so long as the prosecutor’s reasons “are neither contradicted by the record nor inherently

implausible” and “nothing in the record is in conflict with the usual presumptions to be drawn” (Reynoso, supra, 31 Cal.4th at p. 929), the Supreme Court did not there indicate that the trial court should be presumed to have properly made a sincere and reasoned evaluation of the prosecutor’s reasons for exercising his peremptory challenges when the prosecutor’s explanation is so vacuous that it precludes evaluation. In light of the vague and unsupported reasons offered by the prosecutor, additional inquiry was necessary. (People v. Fuentes, supra, 54 Cal.3d at p. 719; Turner, supra, 42 Cal.3d at p. 728; Jordan v. Lefevre, supra, 206 F.3d at p. 200.) While specific findings were not required, probing into what specifically about Ms. W.’s body language, dress and demeanor the prosecutor disliked presumably would have provided descriptions which the court could have evaluated in determining the genuineness of the proffered explanation. 8 If the explanation given by the prosecutor here were deemed sufficient, the entire point of requiring an explanation would be vitiated. All the prosecutor would need do is repeat the mantra that he did not like the prospective juror’s “demeanor” or clothing, and the trial court would be entitled to presume that the prosecutor was not influenced by the race or ethnicity of the prospective juror. Such a conclusion would effectively eliminate the second step of the Batson/Wheeler analysis and would be at odds with Turner, a decision which the majority in Reynoso did not cite and certainly did not overrule. 9

Thus, the trial court erred in accepting the prosecutor’s meaningless explanation for having excused Ms. W. and implicitly finding on the basis of that explanation that the prosecutor met his burden to overcome the prima facie case of discrimination. The trial court did not satisfy its Batson/Wheeler obligations, and the conviction unfortunately must be reversed. Such “error is prejudicial per se: ‘The right to a fair and impartial jury is one of the most sacred and important of the guaranties of the constitution. Where it has been infringed, no inquiry as to the sufficiency of the evidence to show guilt is indulged and a conviction by a jury so selected must be set aside.’ ” (People v. Wheeler, supra, 22 Cal.3d at p. 283.) 10

B.-C. *

III. DISPOSITION

The judgment is reversed and the matter remanded for a new trial. McGuiness, P. J., and Parrilli, J., concurred.

A petition for a rehearing was denied February 24, 2004.

APPENDIX

Ms. W.’s voir dire examination in full was as follows:

THE COURT: Q. Ms. W., have you been able to hear all the questions asked so far?

MS. W.: A. Yes.

Q. I’m sorry?

A. Yes, sir.

Q. Just keep in mind that this young woman has to take down what you and I say, so you have to speak up for us.

A. Okay.

Q. Anything that you heard so far which makes you feel you couldn’t be fair to both sides here?

A. No.

Q. You’re a benefit authorizes with whom?

A. Social Security Admin.

Q. Okay. I suppose I should know about that. Okay. And you have a close friend or a family member in the legal business?

A. A cousin.

Q. And where does he or she practice?

A. In Los Angeles.

A. Los Angeles.

Q. And you know what kind of law?

A. I believe it’s corporate.

Q. Okay. And anything about that relationship which you believe would affect your ability to be fair to both sides here?

Q. And you have indicated that you or a family member or close friend has been a victim, witness or defendant in a criminal matter. Will you tell me about that, please?

A. I believe it was like four years ago we were burglarized. Someone broke into our home and took some things.

Q. Did a trial result from that?

A. No, just the police report.

Q. All right. Have you had any dealings with the district attorneys office?

Q. Any public defenders office or any other defense office? A. No.

Q. Is there anything about that incident in your life which you feel would affect your ability to be fair to the defendant or the People in this matter?

Q. Because we are dealing with a burglary in this case. Are you sure about that?

A. Yeah.

Q. All right. Would you be satisfied with 12 people in your frame of mind sitting on your jury if you represented the People or the defendant in this case?

A. Excuse me?

Q. All right. Try that again. Would you be satisfied with 12 people in your current frame of mind if you were either representing the People or the defendant in this matter—

A. Yes.

Ms. T.’s voir dire examination in full was as follows:

THE COURT: Q. Do you prefer [name]?

A. [T] is fine.

Q. All right. You didn’t tell us what your occupation is?

A. I’m a programmer analyst with Kaiser.

Q. Okay. And how long have you been in that capacity?

A. I’ve been with Kaiser for 10 years and—

A. •—about 18 months, almost two years.

Q. Where were you employed prior to that?

A. I’ve been with Kaiser ten years, so it’s been a long time. Q. Different jobs?

A. Yeah, different roles at Kaiser.

Q. And you told—at least you indicate that you have some friends or close relatives in law enforcement?

A. I have a cousin. I have a maternal cousin and paternal cousin. My maternal cousin is a law enforcement officer in Vacaville. My paternal cousin at one time worked for the East Palo Alto Police Enforcement.

Q. And the one in Vacaville’s with the Police Department up there?

Q. Okay. Anything about those relationships which you feel would affect your ability to be fair to both sides here?

Q. And you won’t—you I don’t want to go through it all over but—

A. It’s okay.

Q. You won’t give a police officer any more weight than any other?

A. No, sir. No, sir.

Q. All right. Okay. Thank you.

MR. DEMERTZIS: Actually, Judge, before we leave Miss [T.], she circled No. 11 and I don’t know if there’s any significance to that.

THE COURT: Okay. You’re absolutely right.

MS. T: What’s No. 11?

THE COURT: Q. Counsel pointed out that question No. 11—I’ll read it to you. Do you have any moral, religious or other principles which would make it difficult to determine whether someone’s guilty or not guilty of a crime? You didn’t answer yes or no, but you circled the question.

A. Because I think moral or religious and other covers a wide range, and I’d like for this to address this particular situation. I would be fair and impartial or try to be fair and impartial. I just circled it because I didn’t understand what was being asked of me at the time.

Q. Okay. Well do you think that you can, without reservation, make your decision in this case based upon the law that I give you, the evidence you hear in the courtroom or see in this courtroom, and your common sense, and not any other preconceived notion or whatever? Can you do that?

Q. Okay. And no doubt in your mind about that?

* See footnote, ante, page 605.

2 The relevant portion of the transcript of voir dire is set forth in the appendix, post.

*

4 Earlier in the Reynoso majority opinion, the court said essentially the same thing in these words: “[I]n fulfilling [the obligation to make a sincere and reasoned attempt to evaluate the prosecutor’s explanation for a peremptory challenge], the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutor’s race-neutral reason for exercising a peremptory challenge is based on the prospective juror’s demeanor, or similar intangible factors, while in the courtroom.” (Reynoso, supra, 31 Cal.4th at p. 919.)

5 The People suggest that Ms. W’s peremptory challenge was also based upon her soft-spoken demeanor because the court asked her at the beginning of voir dire to speak up. The prosecutor, however, gave no such explanation at the time and this argument would appear to contradict the prosecutor’s concern that she might think independently. Moreover, the record hardly supports the People’s characterization of Ms. W. as soft-spoken. At the start of her voir dire, the court asked Ms. W. whether she had been able to hear all the questions asked so far. She replied “Yes.” The court said, “I’m sorry,” to which she repeated “Yes, sir.” The court then reminded her that the court reporter had to take down what she says and so she would have to speak up. There were no further remarks made about the volume of Ms. W.’s voice. In any event, “our concern is with the explanation the prosecutor gave to the trial court, not with a theory subsequently devised by the Attorney General for consumption on appeal.” (Turner, supra, 42 Cal.3d at p. 722, fn. 7.)

6 The prosecution’s explanation in full was as follows: “ ‘As far as the excusing of the woman, I don’t remember exactly, but I think it was something in her work as to that she was doing that from our standpoint, that background was not—would not be good for the People’s case. And I excused her, along with quite a few other people, too, for the same reason.’ ” (Turner, supra, 42 Cal.3d at p. 725.)

7 The Turner court concluded that “the inadequacy of the prosecutor’s reasons was compounded by the [trial] court’s apparent acceptance of those reasons at face value.” (Turner, supra, 42 Cal.3d. at p. 727.) “In each instance the court listened to the prosecutor without question and promptly denied the motion without comment. As we have seen, however, the prosecutor’s explanations were either implausible or suggestive of bias. They therefore ‘demanded further inquiry on the part of the trial court’ [citation], followed by a “sincere and reasoned” effort by the court to evaluate their genuineness and sufficiency in light of all the circumstances of the trial.” (Id. at pp. 727-728.)

8 Alternatively, although not required to do so, had the trial judge placed his own observations on the record, that may well have provided a sufficient basis for understanding the basis on which the peremptory challenge was made, at least if the prosecutor acquiesced in the court’s recitation.

9 Moreover, unlike the situation in Reynoso where the prosecutor passed and accepted the jury 14 times with the Hispanic prospective juror ultimately excused seated in the jury box (Reynoso, supra, 31 Cal.4th at p. 926), here the prosecutor immediately challenged Ms. W. and passed only once with Ms. T. seated on the jury before challenging her. While the Supreme Court reasoned that the trial court in Reynoso could have relied upon the prosecutor’s repeated acceptance of the jury containing the individual later excused as “an indication of the prosecutor’s good faith in exercising his peremptories” (ibid.), there could have been no such reliance in this case.

10 While Wheeler error has been deemed reversible per se in light of the fundamental right involved, remand for a further hearing on the issue may be ordered in appropriate cases. (People v. Williams (2000) 78 Cal.App.4th 1118, 1125 [93 Cal.Rptr.2d 356]; People v. Gore (1993) 18 Cal.App.4th 692, 706 [22 Cal.Rptr.2d 435]; People v. Snow (1987) 44 Cal.3d 216, 226-227 [242 Cal.Rptr. 477, 746 P.2d 452].) “Ordinarily, factors to be considered in determining whether remand is appropriate are the length of time since voir dire, the likelihood that the court and counsel will recall the circumstances of the case, the likelihood that the prosecution will remember the reasons for the peremptory challenges, as well as the ability of the trial judge to recall and assess the manner in which the prosecutor examined the venire and exercised other peremptory challenges.” (People v. Williams, supra, 78 Cal.App.4th at p. 1125.) This, however, does not appear to be an appropriate case. Voir dire in this case was conducted over three years ago, it was a short and unremarkable trial, and the limited information in the record in unlikely to trigger reasonably accurate memories of Ms. W.’s dress and demeanor by the prosecutor and the judge. (Compare with People v. Gore, supra, 18 Cal.App.4th at p. 706 [limited remand appropriate because case was a death penalty case, and therefore it was “likely counsel and the court paid close attention to and are more likely to remember the specifics of voir dire as opposed to less serious cases”].)

*