P. v. Reynoso

Filed 12/3/01
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JULIAN JESUS REYNOSO,
Defendant and Appellant.
F034709
(Super. Ct. No. 42048)
O P I N I O N
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney
General, Robert R. Anderson, Assistant Attorney General, Stan Cross and David A.
Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Julian Jesus Reynoso was convicted of first degree murder, assault with
a firearm, knowingly and maliciously dissuading a witness, and with being an accessory
after the fact. In addition, it was found that a principal in the murder was armed with a
firearm; as to the other convictions, it was found that defendant was personally armed
with a firearm. Defendant appeals, claiming improper denial of his Wheeler1 motion,
1 People v. Wheeler (1978) 22 Cal.3d 258.

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insufficiency of the evidence that he aided and abetted his brother John in the murder,2
instructional error, error in the calculation of his conduct credits, and the erroneous
imposition of an excessive restitution fine. We reverse for Wheeler error.
FACTS
Defendant and his brother John3 were at the home of Monica Perez on the evening
of December 11, 1998. Also present were Mario Martinez (the victim), Mona Estrada (a
friend of the victim), Marcela (Monica’s daughter), Amador Estrada IV (a neighbor of
Monica’s), Elizeth Manjarez (Amador’s girlfriend), and several others.
Defendant and John were outside when Enrique Mayorga drove by and threw a
bottle at Mario’s car. Defendant and John went inside to tell Mario. Mario came out but
ignored the incident. Defendant and John left in their car to try and find Enrique. They
were unsuccessful and, when they returned, John asked Mario why he had not taken care
of Enrique. Mario said he was not going to do anything about the incident. John and
Mario argued.
Later that evening, defendant and John went into the bedroom and closed the door.
The only entrance to the one bathroom in the house was through this bedroom.
Defendant and John had been in the bedroom approximately five minutes when Mario
knocked on the door because he needed to use the bathroom. Defendant stuck his head
out, and Mario told him he wanted to use the bathroom. Defendant said no and shut the
door.
2 Defendant’s brother John was a codefendant at trial. John was also convicted of
first degree murder and has filed a separate appeal in F034873. Defendant has filed
supplemental briefing asking to join in certain arguments raised by John in John’s appeal.
We have taken judicial notice of John’s appeal and shall treat the issues raised in John’s
briefs, which defendant seeks to join, as if defendant personally raised them.
3 Defendant was tried with his brother John Reynoso. John has filed a separate appeal
(F034873) in which we likewise reverse in a published opinion.

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Mario waited a while and then tried to open the door, again saying he needed to
use the bathroom. John and defendant told him to wait. Mario stood by the door as
defendant came out. Defendant grabbed Mario by the coat and asked him if he had a
gun. Mario asked, “what are you doing?” Defendant patted Mario down for a gun and
again asked Mario if he had a gun; he said no. Mario was not reaching for anything in his
pockets. Defendant told John that Mario had a revolver.
John came out of the bedroom, pointed a shotgun at Mario, and shot him. Mario
fell to the floor mortally wounded by a gunshot wound to the left side of his chest. The
gunshot left a large hole in Mario’s chest and caused major destruction to his heart. The
wound was a nonsurvivable wound.
Defendant and John left. As they exited defendant pointed a gun at Juan and told
him to shut up. John told Monica to not mess around with them or she would get it too.
The shotgun and a handgun were found in a field several months later. On the evening of
the shooting, before the shooting occurred, Amador Estrada Jr. (the father of Amador
Estrada IV) met John and defendant. Defendant had something black tucked in his
waistband. Defendant closed his coat when he saw Amador looking in that direction.
Also earlier in the evening Amador Estrada IV saw a shotgun under a pillow in the
bedroom.
John claimed he shot Mario because he was in fear for defendant’s life.
Defendant’s defense was he did not aid or abet John and had no knowledge that John was
going to shoot Mario.
DISCUSSION
I.
Wheeler Error
During jury selection, the People challenged four prospective jurors. The last two
challenges were to Hispanic jurors. After the jury and alternates had been selected but
had not yet been sworn, John made a Wheeler motion, claiming the prosecutor had

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systematically excluded Hispanics from the jury. Defendant joined in the motion.
Counsel for John noted that “the jury as it’s constituted now has twelve whites as the
twelve jurors and three white alternates.”
Initially the court stated it believed the motion was not timely,4 but it proceeded
with the motion. The court noted the People had exercised three or four challenges and
two of those were to Hispanics. The court asked the People to give their reasons why the
two Hispanics were excused. The People questioned whether the court was finding a
prima facie case. The court stated it was. The People then gave their reasons for
excluding the two Hispanic prospective jurors.
As their first challenge of a prospective juror of Hispanic background (exercising
their third peremptory challenge), the People excused a Mrs. Lopez. The court had asked
each juror to state his or her name, general address, occupation, length of occupation,
marital status, spouse’s occupation, prior jury service, involvement in a criminal case,
and legal or medical training. Lopez gave the following response to the court’s inquiry:
“My name’s [Mrs.] Lopez. I live in Earlimart, California. I’ve lived there most of my
life. I’m a case manager for at risk youth. My husband is a foreman for farm labor. I’ve
never been selected for jury. I’ve never been involved in a criminal charge or victim. I
have no legal or medical training. Never been involved in law enforcement. And I do
have relatives that are in law enforcement.”
The prosecutor’s reasons for excluding Lopez were: “Your Honor, the People
dismissed Miss Lopez based upon her being a counselor for at-risk youth. The People
feel that Miss Lopez would have an undue sympathy for both defendants in this case
because they are young and definitely if not at risk, past risk. [¶] The People feel that she
4 Jury selection is not complete until the panel is selected and sworn. A Wheeler motion
must be made, at the latest, before jury selection is completed. (People v. Gore (1993) 18
Cal.App.4th 692, 703.) Respondent does not contend that the motion was untimely.

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would associate with the people she works with and she would probably would have pity
on them.”
A Mrs. Guerrero was the second Hispanic excused by the People (the People’s
fourth and final peremptory challenge). During the standard questioning by the court,
Guerrero gave the following response: “My name is [Mrs.] Guerrero. I just moved to
Porterville for four months. My occupation I’m a customer service rep. I’ve been there
for eight and a half years. My spouse, he’s a construction supervisor. And he’s been that
for over 18 years. I’ve never served on a jury before. I’ve never been involved in any
criminal [sic] or been a victim. I don’t have any legal or medical training. Never been
involved in any law enforcement. As far as a friend, I have a friend who’s an officer in
Porterville. As far as the relative, he’s a brother who is a correctional officer.”
The People gave the following reasons for their peremptory challenge of Guerrero:
“In terms of Mrs. Guerrero, the People dismissed Mrs. Guerrero because she was [a]
customer service representative. In terms of that, we felt that she did not have enough
educational experience. It seemed like she was not paying attention to the proceedings
and the People felt that she was not involved in the process. The People felt she would
not be a good juror.”
The court then stated: “And I accept those reasons as being not based upon race or
ethnicity. And I don’t find that there has been a violation of Wheeler and that the--there
was not a systematic exclusion of a recognized ethnic group, i.e., Hispanics in this case.
So the motion is denied.”
John’s counsel then asked to speak to the matter, the court gave him permission to
do so. He stated: “And a couple points for the record is that counsel for the People
passed on Mrs. Guerrero about seven or eight times. Then when I think he sensed that
the defense was getting ready to pass, then it excused Mrs. Guerrero. There’s nothing
about what Miss Guerrero said in terms of her background that would make her be
sympathetic to the defendants in this case. When she said she was a customer service

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rep. Her husband is a construction supervisor. [¶] She’s got friends in the Porterville PD,
her brother or brother-in-law works for the California Department of Corrections. There
was nothing in her responses or her demeanor that would justify just excusing her other
than it being a race-based exclusion is our position.”
The court noted that the defendants had excluded a Hispanic prospective juror.5
John’s counsel replied that there was a legitimate reason for that. There was a discussion
regarding the exclusion of that juror and connections to law enforcement.
John’s counsel reiterated that there was no legitimate reason to exclude Guerrero
based on her responses; the fact she is Hispanic must have caused her exclusion. As to
Lopez, John’s counsel commented: “Counsel’s argued that Miss … Lopez would be
sympathetic because she works with at risk youth. That’s his reason for excusing her.
But for the record also the reason Miss Guzman [a prospective juror excused by
defendant] was excused, as I understand it from Mr. Terrell [counsel for defendant], is
because she was a victim of violent crime where guns were involved. That’s what we
have here.”
The court made no further comments regarding the Wheeler motion.
Defendant argues that the trial court abdicated its duty to inquire into the
prosecutor’s explanations to test their genuineness, especially where there appears to be
some question of disingenuousness. He claims that the peremptory challenges were
based on group bias rather than specific bias and that the Wheeler motion was
erroneously denied.
Respondent contends the trial court properly found no Wheeler violation. The
People argue that the court’s findings are supported by substantial evidence. Respondent
acknowledges that the trial court’s statement regarding the prosecutor’s stated reasons
5 As discussed infra, the trial court should not consider the defendant’s challenges when
ruling on a Wheeler motion.

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was brief, but “it apparently independently assessed the prosecutor’s reasons for
peremptorily challenging the jurors.” Respondent continues that there is no reason to
conclude that the trial court did not make a sincere and reasoned effort to evaluate the
credibility of the prosecutor’s nondiscriminatory justifications.
When a party alleges that an opponent has improperly discriminated in the
exercise of peremptory challenges, a three-step process to evaluate the claim is employed.
“[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 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. Elam (1995) 514 U.S. 765,
767.) “The exclusion by peremptory challenge of a single juror on the basis of race or
ethnicity is an error of constitutional magnitude requiring reversal.” (People v. Silva
(2001) 25 Cal.4th 345, 386.)
The trial court ruled in defendant’s favor when it found a prima facie case of
improper discrimination (step one). Respondent does not challenge this initial ruling and
we assume that substantial evidence supports that determination. The prosecutor then
defended his challenges with reasons that were facially neutral as to Hispanic ancestry or
surname (step two).6 “Our concern here is with step three: whether the record as a whole
shows purposeful discrimination.” (People v. Silva, supra, 25 Cal.4th at p. 384.)7
We start by evaluating the prosecutor’s reasons. The prosecutor first reasoned
Guerrero was a customer service representative, thus lacking enough educational
6 “‘Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason
offered will be deemed race neutral.’” (Purkett v. Elem, supra, 514 U.S. at p. 768.)
7 While our analysis here primarily focuses on step three, our discussion necessarily
includes aspects of step two insofar as the explanations given in that step need some
support in the record before us.

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experience. While the record supports Guerrero was a customer service representative,
there is nothing in the record about her educational experience other than speculative
inference. While some professions , for example doctors, lawyers, teachers, require a
certain level of education, the same cannot be said for a customer service representative.
Furthermore, the prosecutor did not explain how Guerrero’s occupation or education
related to this case. In People v. Turner (1986) 42 Cal.3d 711, a prospective juror stated
that she was employed as a “‘supervising hospital unit coordinator.’” (Id. at pp. 725-
726.) The prosecutor’s reason for excluding her was, “‘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.’” (Id. at p. 725.) The Supreme Court found this
explanation to be unsatisfactory. “To begin with, the assertion that ‘something in her
work’ would ‘not be good for the People’s case’ is so lacking in content as to amount to
virtually no explanation. 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.)
In contrast, in People v. Barber (1988) 200 Cal.App.3d 378 the prosecutor
exercised a peremptory challenge against a kindergarten teacher. One of the reasons
given for excluding this teacher was “‘many teachers have somewhat of a liberal
background and are less prosecution oriented.’” (Id. at p. 394.) We found the
explanation to be a valid reason. First we stated, “[p]eremptory challenges are often
exercised against teachers by prosecutors on the belief they are deemed to be rather
liberal.” (Ibid.) We noted that the prosecutor relied on her past experience that teachers
tend to be liberal and less prosecution oriented and thus we distinguished this
employment-based reason from the unsatisfactory vague explanation given by the
prosecutor in Turner.

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9.
For the People to say they excluded Guerrero because she was a customer service
representative and lacked educational experience bears similarity to the hollow reason
given in Turner. The prosecutor offered no explanation why, on the facts of this case,
Guerrero’s occupation and presumed lack of educational experience would tend to make
her an unfavorable juror for the prosecution. In contrast, the prosecutor’s reasons for
excluding Lopez [she was a counselor for at risk youth and would have an undue
sympathy for both defendants because they are young and at risk] included “a neutral
explanation related to the particular case to be tried.” (Batson v. Kentucky (1986) 476
U.S. 79, 98.) As to Guerrero, the prosecutor “did not articulate how these failings [being
a customer service representative and lacking education] related to jury service in this
case.” (People v. Fuentes (1991) 54 Cal.3d 707, 720.) While trivial reasons are not per
se invalid and the validity of peremptory challenges should not be elevated to challenges
for cause, “[w]hat is required are reasonably specific and neutral explanations that are
related to the particular case being tried.” (People v. Johnson (1989) 47 Cal.3d 1194,
1218.)8
The prosecutor also stated that “[i]t seemed like she [Guerrero] was not paying
attention to the proceedings and the People felt that she was not involved in the process.
The People felt she would not be a good juror.” A prospective juror’s body language or
manner of answering questions can be a proper basis for justifying a peremptory
challenge and rebutting a prima facie case. (People v. Fuentes, supra, 54 Cal.3d at pp.
8 Defendant points out that other jurors who appeared to have little educational
background were not excluded from the jury. The California Supreme Court has
repeatedly stated that a reviewing court should not engage in a comparative analysis of
prospective jurors’ responses. Comparative analysis of jurors’ responses “to evaluate the
bona fides of the prosecutor’s stated reasons for peremptory challenges does not properly
take into account the variety of factors and considerations that go into a lawyer’s decision
to select certain jurors while challenging others that appear to be similar.” (People v.
Johnson, supra, 47 Cal.3d at p. 1220.)

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714-715.) It is, of course, impossible from a cold record for us to definitively determine
whether Guerrero was or was not paying attention or was or was not involved in the
process. On the one hand, there is nothing in Guerrero’s responses which indicated she
was not paying attention. She competently answered the questions posed to all jurors,
and did so in a manner not significantly different from other jurors’ “cold” responses
contained in the record. “[C]redibility determinations require a personal presence that a
cold transcript cannot convey.” (Abbott v. Mandiola (1999) 70 Cal.App.4th 676, 683.)
“This is, of course, one reason why appellate courts in this area of law generally give
great deference to the trial court, which saw and heard the entire voir dire proceedings.”
(People v. Perez (1994) 29 Cal.App.4th 1313, 1330.)
Defendant claims that the prosecutor’s proffered reasons--that Guerrero was
inattentive and not involved in the process--are too vague and general to be valid here.
On this, we disagree; a somewhat inattentive prospective juror would be an appropriate
concern, especially in a case of this magnitude. These particular reasons, if supported by
the record, would be valid. The critical question becomes whether the record supports
this reasoning.
Acknowledging that the trial court was present in the courtroom and in the best
position to determine the credibility of the prosecutor’s reasoning, we would, in the
absence of other circumstances, reasonably assume that either the trial court observed the
behavior itself and therefore found it to be true, or evaluated the overall circumstances
and the credibility of the prosecutor and determined that his proffered reason was valid.
The trial court was required to make “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.)

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11.
Because we are not afforded a record of one’s body language or demeanor, we
find it helpful to review any statements the trial court may have made reflective of its
observations for the record regarding the prospective juror in question and any discussion
that followed the trial court’s ruling. The California Supreme Court has recognized that
Wheeler hearings generally should be adversarial and defense counsel’s contribution
might make a difference in the ultimate ruling. (People v. Ayala (2000) 24 Cal.4th 243,
268.)
After the prosecutor gave his reasons and the court accepted the reasons as not
based on race or ethnicity, the court made no statements of its impressions of Guerrero’s
responses or demeanor. Counsel for John then argued as to Guerrero that there was
nothing in terms of her background that would make her sympathetic to the defense, she
had friends and relatives in law enforcement, and “[t]here was nothing in her responses or
her demeanor that would justify just excusing her other than it being a race-based
exclusion.” (Emphasis added.)
The following exchange took place:
“THE COURT: And I believe that there was another Hispanic that was excused
not by the People, but by the defense and that was Mrs. Guzman.
“MR. RUMERY [John’s counsel]: That was a legitimate reason. I didn’t excuse
her.
“THE COURT: I’m not saying it wasn’t legitimate. You just brought up – I’m
not arguing with you, but I want the record to be clear, you argued that even a person
who the People should want to have on, namely law enforcement background may still
kick off because of being Hispanic. I’m just pointing out that Miss Guzman was another
person that is Hispanic background but they did not kick off and I believe her background
was that she had been the one who had been kidnapped.
“MR. RUMERY: Right. I would say she would want to be kept on by the People
because she’s been a victim of a violent crime at gunpoint.

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“THE COURT: But your argument was that so should the other person because
they had law enforcement background.
“MR. RUMERY: I didn’t say she was law enforcement background.
“THE COURT: I thought you said –
“MR. RUMERY: I was looking over my notes in terms of what she said in
answer to the nine questions that are up on the little poster. She responded that she has
friends in the Porterville PD.
“THE COURT: Right. Law enforcement people.
“MR. RUMERY: And a brother who works for California Department of
Corrections. So I’m just saying that based on those responses, there’s no legitimate
reason to exclude her based on those responses other than the fact that she has her – she’s
Hispanic. I’m trying to make that for the record.”
During general questioning of all jurors, Guzman indicated that she had been
kidnapped at gunpoint coupled with an attempt to rape her and cause bodily harm. She
stated that she thought she could judge the case fairly.9 During individual questioning
she revealed that she had a brother-in-law who worked for the Merced Police
Department. She was peremptorily challenged and excused by defendant.
We begin by noting that the trial court’s discussion regarding prospective juror
Guzman was erroneous for two reasons. First, the court erred when, for whatever reason,
it commented on the fact that the defense had challenged a Hispanic prospective juror
[Guzman].10 “[T]he propriety of the prosecutor’s peremptory challenges must be
determined without regard to the validity of defendant’s own challenges.” (People v.
9 Although during this questioning the record does not identify Guzman by name and
refers to her only as “a juror,” later discussions on the record leave no question that
Guzman was the prospective juror previously not identified by name.
10 We note that the prosecutor also commented to the court that the defense had
challenged an additional Hispanic prospective juror.

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13.
Snow (1987) 44 Cal.3d 216, 225.) Second, the court noted that Guzman was another
Hispanic prospective juror that the People did not excuse. “Although the passing of
certain jurors [within a cognizable group] may be an indication of the prosecutor’s good
faith in exercising his peremptories, and may be an appropriate factor for the trial judge
to consider in ruling on [the prima facie portion of] a Wheeler objection” (ibid.), the court
had already made it’s prima facie finding. Whether the people would have challenged
Guzman cannot be known because she was eliminated from the jury pool by the defense
and at the time the Wheeler motion was made here there were no Hispanic jurors
remaining. Furthermore, the inclusion of one member of a cognizable group “‘ignores
the fact that other members of the group may have been excluded for improper, racially
motivated reasons.’” (People v. Motton (1985) 39 Cal.3d 596, 607-608.) Thus, the trial
court should not have considered the circumstances regarding Guzman in assessing
whether the reasons given for Guerrero were valid.
Next, we note that although the court felt compelled to comment on defendant’s11
statement regarding Guerrero’s ties to law enforcement, it did not respond to or even
acknowledge defendant’s comment that there was nothing in Guerrero’s demeanor that
would justify excusing her. Defendant’s statement demonstrated his disagreement with
the prosecutor’s assessment that Guerrero was not paying attention and was not involved
in the process. Neither the trial court’s initial comments nor its subsequent comments
contain any particularized assessment of the prosecution’s justifications.
The California Supreme Court recently discussed the trial court’s duty to make a
sincere and reasoned attempt to evaluate the justifications of the prosecutor as applied to
each juror in People v. Silva, supra, 25 Cal.4th 345. In Silva, the defendant was being
11 Although the motion was argued by John’s counsel, defendant joined in the
motion. We shall hereafter attribute statements made by John’s counsel as if they were
made by defendant’s counsel.

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retried for the penalty phase of his capital murder case; the first penalty phase had
resulted in a hung jury with seven voting in favor of death and five voting for a sentence
of life imprisonment without parole. Twice during jury selection for the retrial, the
prosecutor commented that the first penalty trial had hung up on racial grounds. The
defense made its first Wheeler motion to dismiss the panel after the prosecutor had
exercised peremptory challenges against three prospective jurors with Hispanic ancestry
or surnames. The court found a prima facie case and asked the prosecutor to explain the
reasons for the challenges.12
The record in Silva reflected the following as to juror Jose M.
“During the ex parte hearing, the prosecutor said he challenged M. because, during
the death qualification voir dire, M. said ‘he would look for other options’ when the
prosecutor ‘asked him could he exercise his discretion to impose the death penalty,’ and
M. ‘indicated that he thought it was the toughest penalty, and he would look for other
options.’ The prosecutor said he ‘also felt that [M.] was an extremely aggressive person
and might hang the jury with his thoughts at that point ... .’
“Defendant alleges, and we agree, that the transcript of the death-qualification voir
dire provides no support for either of these reasons. When defense counsel asked M. for
his opinion on the death penalty, M. answered: ‘Well, I guess I have an opinion on it. I
mean, it’s the most -- the hardest -- oh, what’s the word I'm looking for -- punishment
you can give.’ When defense counsel asked M. to clarify whether he was for or against
the death penalty, he replied: ‘I would say I’m mixed. I would, you know, consider it and
I would consider opposition to it.’ Defense counsel then explained how a jury is
12 The court allowed the prosecutor to explain his reasons in an ex parte hearing out of
the presence of defendant and defense counsel. The Supreme Court found this was error
but the effect of the error was partially alleviated when the transcripts were unsealed and
the defense was allowed to bring a new trial motion based on the contents of the
transcripts. (People v. Silva, supra, 25 Cal.4th at pp. 384-385.)

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supposed to decide the penalty in a capital case, and M. said he could do that. Defense
counsel asked: ‘So you’re saying you don’t think you would have a problem returning
either verdict?’ M. replied: ‘No.’
“In answer to further questioning by defense counsel, M. promised that he would
engage in deliberations, that ‘after doing that process’ he would ‘definitely’ stand by his
decision if he was convinced he was right and the others were wrong, but also that he
would reanalyze his own decision if other jurors convinced him he was wrong.
“In reply to the prosecutor’s questions, M. said he did not consider himself an
‘overly sympathetic person,’ and he assured the prosecutor that he would ‘listen to all the
evidence that’s presented’ from ‘both sides,’ that he would attempt to arrive at a fair and
impartial verdict ‘whatever it is,’ that if the jury was ‘hung up one way or the other’ he
would ‘back off’ and ‘listen to the other jurors and ask [him]self “Was I right or was I
wrong?”’ In response to the prosecutor’s question asking whether he was ‘a strong
enough person’ if he felt he was wrong ‘to admit this out loud and change [his] vote,’ M.
answered ‘Certainly.’
“The prosecutor then asked: ‘Do you lean one way or the other on the death
penalty, do you think?’
“M. answered: ‘Possibly slightly for it.’
“Finally, the prosecutor asked M. whether he could return a death verdict against
defendant ‘if he’s earned the death penalty.’ M. answered ‘Yes.’” (People v. Silva,
supra, 25 Cal.4th at pp. 376-377.)
“[T]he trial court did not ask the prosecutor any questions and did not remark on
any discrepancies between the prosecutor’s stated reasons and the prospective jurors’
responses on voir dire or on their questionnaires. When proceedings resumed in the
presence of defendant and defense counsel, the trial court denied the first Batson/Wheeler
motion. The court said only that the prosecutor ‘did provide an explanation with regard

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to’ the three peremptory challenges and that ‘I think that there was a good excuse with
regard to all of these people.’” (People v. Silva, supra, 25 Cal.4th at p. 382.)
A second Batson/Wheeler motion was made after the prosecutor challenged two
more Hispanic prospective jurors. Again “the trial court did not question the prosecutor
or remark on the apparent disparity between the prosecutor’s stated reasons and what the
record shows to have occurred during voir dire.” The court informed defense counsel
that the reasons given by the prosecutor “‘appear to very valid reasons for those
excuses.’” (People v. Silva, supra, 25 Cal.4th at p. 383.)
At the motion for new trial, the defendant claimed that almost all of the
prosecutor’s reasons for excluding the challenged Hispanic prospective jurors were either
unsupported by the record or inherently implausible. Without commenting on the
reasons the trial court reiterated that it found the reasons sufficient. (People v. Silva,
supra, 25 Cal.4th at p. 384.)
Defendant Silva appealed, challenging the validity of the denial of his
Batson/Wheeler motion at the penalty phase of his trial. The Supreme Court reviewed all
of the challenges and found numerous discrepancies between the prosecutor’s reasons
and the responses of the challenged jurors in the record. The Supreme Court then
focused on prospective juror Jose M. The court found that the trial court erred in its
review of the reasons given to support the prosecutor’s challenge to Jose M: “[W]e agree
with defendant that the court erred in denying the motion as to Prospective Juror Jose M.
Nothing in the transcript of voir dire supports the prosecutor's assertions that M. would be
reluctant to return a death verdict or that he was ‘an extremely aggressive person.’
Although an isolated mistake or misstatement that the trial court recognizes as such is
generally insufficient to demonstrate discriminatory intent [citation], it is another matter
altogether when, as here, the record of voir dire provides no support for the prosecutor’s
stated reasons for exercising a peremptory challenge and the trial court has failed to probe
the issue [citations]. We find nothing in the trial court’s remarks indicating it was aware

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of, or attached any significance to, the obvious gap between the prosecutor’s claimed
reasons for exercising a peremptory challenge against M. and the facts as disclosed by the
transcripts of M.’s voir dire responses. On this record, we are unable to conclude that the
trial court met its obligations to make ‘a sincere and reasoned attempt to evaluate the
prosecutor’s explanation’ [citation] and to clearly express its findings [citation].” (People
v. Silva, supra, 25 Cal.4th at p. 385.)
The Supreme Court concluded: “We conclude that the trial court’s ultimate
determination—that defendant failed to meet his burden of proving intentional
discrimination with respect to the prosecutor’s peremptory challenge of Prospective Juror
M.—is unreasonable in light of the evidence of the voir dire proceedings. Although we
generally ‘accord great deference to the trial court’s ruling that a particular reason is
genuine,’ 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. As to Prospective Juror M., both of the prosecutor’s stated reasons were
factually unsupported by the record. Because the trial court’s ultimate finding is
unsupported -- at least as to Prospective Juror M. -- we conclude that defendant was
denied the right to a fair penalty trial in violation of the equal protection clause of the
federal Constitution [citation] and was denied his right under the state Constitution to a
trial by a jury drawn from a representative cross-section of the community [citation].”
(People v. Silva, supra, 25 Cal.4th at pp. 385-386.)
The Silva case was applied in People v. Gomez (2001) 92 Cal.App.4th 1. After the
prosecutor excused three prospective jurors who appeared to be of Hispanic descent,
defense counsel made a Wheeler motion. The court found a pattern of group bias. The

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prosecutor explained his exclusions as follows: “Ornelas was a very young man who
might not have ‘given the fingerprint evidence the weight it would have deserved.’ The
prosecutor expressed concern of Saldana, a cable technician, who was required to be in
other people’s homes, ‘might put himself in the defendant’s shoes’ and be difficult to
persuade. Concerning Ramirez, the prosecutor stated, ‘her husband is a painter. He’s a
little bit too liberal for me so I kicked her off.’ Apparently confused by this response, the
court stated, ‘Wait. I’m sorry. The painter? Who is too liberal?’ The prosecutor
responded, ‘Her husband is a painter. I just got off a jury where her husband was a
philosopher and anyone close to painting, philosophy, acting, I don’t like to keep. I don’t
care. I’ll kick them off.’ The court then stated, ‘I’m sorry, Did she say he was a house
painter or a painter of works of art.’ The prosecutor replied, ‘She said painter. I took it
as works of art.’ Defense counsel stated, ‘I took it as house painter.’ The prosecutor
responded, ‘We didn’t go into it’ No further inquiry was conducted.” (Id. at p. 3.)
The trial court denied the motion. “The court agreed Ornelas appeared ‘quite
young.’ With regard to Saldana, the court commented that ‘[it] could see why the
prosecutor feels the way he does ….’ As to Ramirez, the court stated, ‘Whether or not
Ms. Ramirez [sic] husband paints, you know, be it seascapes or houses, I don’t know. I
guess that will just remain a mystery, but it’s not unreasonable for the people to infer that
he was a painter of art and that somehow that brand [sic] him as a liberal.” (People v.
Gomez, supra, 92 Cal.App.4th at p. 4.)
Gomez claimed on appeal that the trial court erred in denying his Wheeler motion
because the explanations were unsupported by the record and the trial court failed to
seriously evaluate the genuineness of those explanations. Relying on a Silva type
analysis the appellate court agreed. “‘“The trial court has a duty to determine the
credibility of the prosecutor’s proffered explanations” [citation], and it should be
suspicious when presented with reasons that are unsupported or otherwise implausible
[citations] ….’ [Citation.] Though obviously puzzled by the prosecutor’s explanation,

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the court simply took it at face value. The court remarked that ‘it’s not unreasonable for
the people to infer that [Mr. Ramirez] was a painter of art and that somehow that brand
[sic] him as a liberal.’ But the prosecutor’s reasoning is not only illogical, the factual
premise for it is unsubstantiated in the record. The court failed to question the factual
bases for the prosecutor’s explanation: whether the prosecutor was actually familiar with
Ms. Ramirez’s husband; whether Mr. Ramirez painted canvases or homes; and whether
Ms. Ramirez shared her husband’s ideology. The absence of factual support for the
prosecution’s explanation, combined with the prosecutor’s illogical assumptions, reflect
that the court failed to adequately determine the credibility of the proffered justification.
Further, Cesena’s [a juror challenged by the People who commented on the exclusion of
Hispanics] objective and lay observation that jurors of Hispanic descent and with
Hispanic surnames were being unfairly eliminated lends itself to support a determination
that the prosecutor’s conduct was highly questionable.
“Ramirez’s voir dire disclosed little. When questioned by the court, she stated,
‘My name is Ms. Ramirez. I work as a shipping clerk. I’m married. My husband is a
painter. I have four children [sic] eleven, eight, five, and six months. And this is my first
time as a juror.’ No further information was elicited from her.
“Nothing in this voir dire supports the prosecutor’s proffered justification. It was
unreasonable for the prosecutor to assume her husband is involved in works of art, rather
than the applying of paint to buildings and such. Nothing in the record supports this
inference; the prosecutor failed to inquire what Mr. Ramirez painted. Instead, responding
to defense counsel’s statement that he understood Mr. Ramirez to be a house painter, the
prosecutor admitted that ‘We didn’t go into it.’ His explanation amounted to pure
speculation. The prosecutor’s logic is almost surreal: A ‘painter’ must be assumed to be
an artist, artists must be assumed to be ‘liberal,’ and liberals must be assumed to be
antagonistic to the prosecution. Furthermore, one who is married to a liberal spouse must

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be assumed to share his or her ideology. Take that, Mary Matalin and James Carville!”
(People v. Gomez, supra, 92 Cal.App.4th at p. 5.)
The appellate court concluded “[b]ecause the prosecutor’s explanation for
exercising a peremptory challenge against Ramirez was not supported by the record, we
conclude that defendant’s right to a fair trial was violated.”13 (People v. Gomez, supra,
92 Cal.App.4th at p. 6.)
The reasons given by the prosecutor in Silva, supra, 25 Cal.4th 345 were
contradicted by the record and were thus implausible and unsupported by the record.
While the record does not contradict the reasons given here, neither does the record on
appeal support them. Although the reasons given here by the prosecutor were not as far-
fetched as the reasons in Gomez, supra, 92 Cal.App.4th 1, the record here does not
engender confidence in a finding that the trial court engaged in a sincere and reasoned
attempt to evaluate the prosecutor’s justification for challenging Guerrero. First, as
previously discussed, the initial reason given by the prosecutor [Guerrero was a customer
service representative with a lack of educational experience] was not supported by the
record and lacked any content related to the case being tried. Second, the demeanor
reason given by the prosecutor, which is not reflected within the cold record on appeal,
was disputed by the defense yet not clarified in any way by the court. Finally, in
rejecting defendant’s argument, rather than focusing on the question of validity of the
People’s justifications, the trial court attempted to buttress its finding by analyzing a
13The concurring opinion set forth reasons for reversal that it found even more
compelling than the majority opinion indicated. The concurring justice found support for
a pattern of racial bias in the “one truly ludicrous excuse, and two so flimsy that, in
context with the first, there is a clear basis to conclude that the prosecutor was using his
peremptories in an ethnically biased manner.” (People v. Gomez, supra, 92 Cal.App.4th
at p. 7, conc. opn. of Sills, J. The dissenting justice believed that the majority had
substituted their judgment of credibility for the trial courts. The dissenting justice found
that nothing in the record conflicted with the prosecutor’s reasons and the trial court
found the prosecutor’s reasons to be sincere. (Id. at pp. 8-10, dis. opn. of O’Leary, J.)

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Hispanic juror not challenged by the People but excused by the defense. The court’s
comments regarding Guzman could appropriately have come into play during the court’s
initial screening of whether a prima facie case had been shown, but not during its analysis
of whether the prosecutor’s justifications were valid. (See People v. Granillo (1987) 197
Cal.App.3d 110, 121.)
Trial courts should not relieve prosecutors of their burden during a Wheeler
motion by readily accepting vague explanations. On this record, we are unable to
conclude that the trial court satisfied its obligation under Silva to evaluate the
prosecutor’s explanation. (People v. Silva, supra, 25 Cal.4th at p. 385.) “The exclusion
by peremptory challenge of a single juror on the basis of race or ethnicity is an error of
constitutional magnitude requiring reversal.” (Id. at p. 386.) In light of the reversal, we
will not discuss the remaining issues, other than the matter of sufficiency of evidence.
II.
Sufficiency of the Evidence
Defendant claims the evidence is insufficient to establish that he aided and abetted
the first degree murder of Mario. First we determine if there is sufficient evidence of first
degree murder.
“In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that 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. Bolin (1998) 18 Cal.4th 297,
331.)
“Categories of evidence which are typically sufficient to sustain a finding of
premeditation and deliberation include: (1) facts about a defendant’s behavior before the
incident that show planning; (2) facts about any prior relationship or conduct with the
victim from which the jury could infer a motive; (3) factors about the manner of the
killing from which the jury could infer the defendant intended to kill the victim according

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to a preconceived plan.” (People v. Vorise (1999) 72 Cal.App.4th 312, 318.) These are
typically referred to as the Anderson (People v. Anderson (1968) 70 Cal.2d 15, 26-27)
factors. “The Anderson factors, while helpful for purposes of review, are not a sine qua
non to finding first degree premeditated murder, nor are they exclusive.” (People v.
Perez (1992) 2 Cal.4th 1117, 1125.)
Although one version of the facts might have resulted in a finding that John was
acting under some form of self-defense, the facts are also susceptible to the interpretation
that the killing of Mario was a premeditated and deliberate killing absent any self-defense
or defense of others. We must accept that version of the facts that support the
judgment.14
Defendant and John went into the bedroom and remained there for approximately
five minutes. The shotgun was in the bedroom under a pillow. They refused to let Mario
enter the room when he first sought entrance. This is evidence of planning. Earlier in the
evening John argued with Mario because Mario had not taken any action against
Enrique.15 This is evidence of motive. Mario was shot at close range in the heart, a
clearly fatal wound. “[T]he method of killing alone can sometimes support a conclusion
that the evidence sufficed for a finding of premeditated, deliberate murder.” (People v.
Memro (1995) 11 Cal.4th 786, 863-864.) The method of killing clearly implies John
intended to kill the victim according to a preconceived plan. There was substantial
evidence of planning, motive, and manner of killing to support a first degree murder
conviction.
14 Although John and defendant argued at trial that defendant took a gun from Mario
after the killing, and that Mario was armed, there was also evidence that no one saw
defendant remove a gun from Mario, and defendant was seen earlier in the evening with
something tucked in his waistband.
15 Defendant claims we should ignore the testimony supporting this point because only
one witness testified to it; it is not our task on appeal to determine the credibility of the
witnesses.

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“[A]n aider and abettor must act with knowledge of the criminal purpose of the
perpetrator and with an intent either of committing, or of encouraging or facilitating
commission of, the offense. [Citation.] … [I]f the aider and abettor undertakes acts ‘with
the intent that the actual perpetrator’s purpose be facilitated thereby, he is a principal and
liable for the commission of the offense.’ [Citations.] Thus, the basis of liability for the
perpetrator applies to the aider and abettor and extends to ‘the natural and reasonable
consequences of the acts he knowingly and intelligently aids and encourages.’” (People v.
Sanchez (1995) 12 Cal.4th 1, 33.)
Defendant and John arrived at the Perez residence together, with defendant armed
with a handgun; at some point in time the shotgun was hidden in the bedroom.
Defendant and John went after Enrique after he threw a bottle at Mario’s car. Although
John was the only one who argued with Mario about Mario’s failure to respond to the
bottle-throwing incident, defendant was present during this argument and it could be
inferred from their earlier outing together to find Enrique that they shared their feelings
regarding Enrique and Mario’s failure to respond. Defendant and John were in the
bedroom where the shotgun was hidden under a pillow for approximately five minutes.
When Mario first sought entrance to the room, defendant would not let him in. When
defendant came out of the bedroom he grabbed onto Mario and patted him down. John
then shot Mario as defendant held him. The two threatened others in the house as they
were leaving; they left together, and disposed of both weapons. From this it was
reasonable for the jury to conclude that defendant acted with the knowledge of John’s
purpose and with the intent of committing, encouraging or facilitating the commission of
the offense. Sufficient evidence supports defendant’s conviction of first degree murder.

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DISPOSITION
The judgment is reversed.
______________________________
VARTABEDIAN, Acting P. J.
WE CONCUR:
__________________________________
HARRIS, J.
__________________________________
WISEMAN, J.

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