People v. Jordan

approached a 55-year-old woman as she tried to enter her office located in Oakland, and began tugging and yanking on the victim’s purse, which she wore on her shoulder. The victim was scared, but did not see a weapon. As the victim began to scream, defendant kicked her in the leg, and then punched her in the face, all the while trying to get her purse. The victim kept screaming to get attention, and held on to her purse.

The victim’s coworkers, both inside the office building and in the parking lot, heard her screams and came to her aid. As the victim’s coworkers were chasing defendant, a faded blue Pontiac Firebird pulled up to the intersection of 21st Avenue and Telegraph Avenue. Defendant then opened the passenger door and got in.

The incident was reported to the Oakland Police Department. The officer who arrived at the scene observed that the victim was visibly shaken and had redness and swelling on the right side of her face. Approximately 15 minutes after the dispatch call, another officer stopped a car matching the description of the getaway car. Codefendant Branche was alone in the car at the time of the stop. Defendant was later apprehended riding a bicycle in Oakland.

The victim viewed a photo lineup, and identified defendant as the person who tried to take her purse. Although the victim was later concerned about the accuracy of her identification, defendant admitted that he tried to take a woman’s purse earlier that day, and that the woman would not let go of it. Defendant blamed his actions on drug use.

B. Voir Dire

The venire was comprised of 95 prospective jurors. The prospective jurors were given questionnaires prior to the commencement of voir dire.

Defense counsel objected to the prosecutor’s fourth, eighth, and 10th peremptory challenges because they were used against African-American women. The only identifying information about the women in the record is their respective juror numbers. Accordingly, we refer to the women as Jurors Nos. 7, 70, and 81.

1. Juror No. 70

Each questionnaire asked, “Have any members of your family or household, friends or co-workers ever been arrested, accused or charged with a crime?” During initial questioning by the court, Juror No. 70 stated that her

uncle had been in prison in Texas in 1963. She was uncertain of the exact offense, but thought it was “probably theft.” Juror No. 70 further stated that her uncle had also been in jail in California, possibly for drugs, but she was “not really sure.” Juror No. 70 also stated that in 1974, her sister’s former boyfriend, an Oakland police officer, was investigated by internal affairs.

Juror No. 70 had served on a jury in May of the previous year, and appealed to the court about having to serve again in the instant case. Since the trial in this case began in July, the trial court told Juror No. 70 that it had been over 12 months since her last service, and that she was technically eligible for jury service.

After questioning other jurors, the trial court came back to Juror No. 70, stating that it had forgotten to ask her about her answer in the questionnaire to a question that asked, “What is the first thing that comes to mind when you think of: [(|Q Police Officers,” to which Juror No. 70 replied “racial profiling.” Juror No. 70 expressed surprise that the trial court had not asked her about this response earlier. She explained that minorities, especially men, are racially profiled for traffic stops, even in the absence of any criminal activity. Juror No. 70 believed that racial profiling happens in the United States in general, and that it commonly happens in connection with Hispanic and African-American males. At one point Juror No. 70 stated that she believed racial profiling was wrong, but later stated that she thought it was okay to stop a person “if they fit a certain profile,” and if the police “find something.”

2. Juror No. 81

Juror No. 81 had been physically and mentally abused by her former husband from approximately 1986 to 1996. In initial questioning by the trial court, Juror No. 81 stated that she had called Oakland police about five times during this 10-year period. Juror No. 81 believed that the Oakland police officers had not been very responsive to her situation, stating that the police officers would either have her former husband leave the home or have her leave instead. She further stated that Oakland police officers never indicated that they would arrest her former husband and request prosecution from the district attorney’s office. Eventually, Juror No. 81’s former husband was arrested after breaking into her home. She knew that he had been convicted of an offense, but was uncertain of the details.

Juror No. 81 was not sure if her past experiences with the Oakland police would affect her ability to evaluate the testimony of Oakland police officers who might testify. When further questioned by the court, Juror No. 81

indicated that her past experiences “probably wouldn’t” affect her ability to be fair and impartial.

When questioned by the prosecutor about her interactions with the Oakland Police Department, Juror No. 81 stated that some were positive and some were negative. She explained that she felt that the police had not given her the support she needed and had not been sympathetic. However, Juror No. 81 stated she would not view a police officer’s testimony with more suspicion than another witness’s testimony. She further denied that she would vote not guilty, if it came to light that the police officers made mistakes in their investigation, just to send a message.

3. Juror No. 7

When questioned by the trial court, Juror No. 7 stated that she could be fair and impartial. Juror No. 7 stated that her brother had been convicted of possession of drugs in Oakland in the early 1980’s. She did not attend any of his court appearances. When asked whether she felt her brother had been treated fairly by the justice system, she replied: “I, actually, can’t say that I feel a lot about it, because he knew that he was wrong, so ... he suffered the consequences.” Juror No. 7 believed that her brother’s sentence was appropriate. Juror No. 7’s sister had been involved in two cases involving prostitution and possession of drugs. Juror No. 7 did not attend any of those court proceedings, and did not have any opinion regarding her sister’s treatment in her various cases. Juror No. 7 stated that her sister “did what she did, and she paid for it.” Juror No. 7 further stated that she did not think her sister was treated unfairly, but qualified the response by stating that she was not present during the criminal proceedings.

Juror No. 7’s son was charged and convicted of assault in Oakland in the late 1980’s. Her son’s case did not proceed to a jury trial and took a while to resolve. Juror No. 7 attended her son’s final court appearance. She thought her son “served about a year.” When asked whether she thought her son had been treated fairly, she replied, “Well, from what he explained to me, it was fair.”

Juror No. 7 also had a close friend in the 1960’s who was convicted of rape. She was not sure where the crime was committed, but thought her friend told her it occurred in Kansas. She did not attend any of the court proceedings and had no opinion about whether he was treated fairly.

In her juror questionnaire, Juror No. 7 wrote, “Trouble,” as the first thing that came to mind when she thought of police officers. She explained that she lived in an African-American and Hispanic neighborhood, and that

“it’s always something going on. So when you see the police coming, you know he’s not going to tell you that you’re a millionaire. So there’s trouble.” Juror No. 7 believed that some police officers create trouble and some do not. She also had witnessed the police acting inappropriately in her neighborhood. She gave the example of a police chase in which the suspect fell and the police officer attempted to hit the suspect, but was stopped by another officer.

In her juror questionnaire, Juror No. 7 wrote, “What’s next?” as the first thing that came to mind when she thought of prosecutors. When asked by the court to explain this response, she stated, “Well, you’re sitting in the court, you know, listening to things, and you hear a lot of different type things, so I said what’s next.” When the court further inquired about some of the negative things Juror No. 7 thought about regarding prosecutors, she replied, “Similar questions they ask.” Juror No. 7 explained that she was referring to the questions asked in a civil case in Oakland, in which she was a prospective juror. Juror No. 7 thought the questions posed to jurors were strange. She denied that her “What’s next?” comment related to family and friends who had been convicted.

Juror No. 7 also wrote in her questionnaire that the first thing that came to mind when she thought of defense attorneys was, “Make the right decision.” When asked to explain this response, she stated, “Well, you know it’s really complicated, that one, the way I stated that in any . . trial that you come in contact with, you would hope that they based on the evidence. You hope that, you know, the right decision arise[s] from all that.” She further explained that she was referring to the jury making the right decision, while listening to the defense attorneys.

Each questionnaire asked, “What are your feelings about the fairness and effectiveness of the criminal justice system?” Juror No. 7 wrote that she thought that it needed a little updating. When asked to explain this response, Juror No. 7 stated she was referring to the police department. She further stated, “you have some good; some bad. I’ve seen some of both. That’s all.” She believed that improvement in police department personnel was required in general.

When questioned by the prosecutor, Juror No. 7 stated that her brother had been arrested in Oakland by the Oakland Police Department at least five times. Juror No. 7 stated that she did not hear any negative reports from her family about her brother’s arrests. She did not believe that her brother had been harassed by Oakland police, stating, “he just got caught. That’s all.”

1. Explanations by the Prosecutor

In giving reasons for excusing Juror No. 70, the prosecutor noted that in her questionnaire, Juror No. 70 wrote, “I prefer not to serve since I just served last year in May.” The prosecutor further noted that when Juror No. 70 was questioned by the court, she specifically appealed to get out of jury service. The prosecutor asserted that Juror No. 70’s comments indicated that she did not want to be a juror in this case. The prosecutor was also concerned that Juror No. 70 said “racial profiling” was the first thing that came to mind when thinking about police officers, and that Juror No. 70 had this response to all police officers in general. The prosecutor further noted that when the court questioned Juror No. 70 about her racial profiling response, Juror No. 70 said she had been wondering why the issue was not discussed earlier. The prosecutor argued that this response “implies that she is either, one, trying to be—say as much as she can ... to get off the jury, or, two, she was being untruthful. Either way, I don’t believe she would be a good juror for this case.” Finally, the prosecutor asserted that Juror No. 70 was chewing gum throughout the proceedings and while answering questions, which she believed showed a lack of respect to the court.

With respect to Juror No. 81, the prosecutor cited her domestic violence problems and that she was “very critical” of how the Oakland Police Department had handled the investigation. The prosecutor further asserted that “given her reluctance to even talk about her case any more frankly or openly with the Court, it appears to me that she still harbored some feelings about what had happened to her. And given that police investigation will be an issue in this trial, I don’t believe she can set that aside, and that she will judge the Oakland Police Department much more harshly.”

The prosecutor also noted that Juror No. 81 had failed to answer some of the questions on the questionnaire, including question 19. Finally, the prosecutor cited the fact that Juror No. 81 did not talk much about her spouse, and indicated that since she was a victim of domestic violence, she “[might] have some feelings, lingering feelings, about any women who was [sic], perhaps, attacked or assaulted.” The prosecutor asserted that the victim in this case was a woman, and while it is possible that Juror No. 81 would be sympathetic, there was a concern that Juror No. 81 might feel that the Oakland Police Department did not do a sufficient job of investigating the case.

Regarding Juror No. 7, the prosecutor cited the multiple arrests in her family by the Oakland Police Department. While Juror No. 7 said that she

discrimination in the exercise of peremptory challenges by the prosecution. ... [¶] So defense motion on the basis of Wheeler is denied.”

A. Batson-Wheeler

Race-based use of a peremptory challenge violates the federal constitutional guaranty of equal protection of the law, as held in Batson, supra, 476 U.S. 79 , and the state constitutional right to a jury drawn from a representative cross-section of the community, as held in Wheeler, supra, 22 Cal.3d 258 (People v. Huggins (2006) 38 Cal.4th 175 , 226 [ 41 Cal.Rptr.3d 593 , 131 P.3d 995 ]; People v. Cornwell (2005) 37 Cal.4th 50 , 66 [ 33 Cal.Rptr.3d 1 , 117 P.3d 622 ]). “Batson states the procedure and standard to be employed by trial courts when [a challenge is] made. ‘First, the defendant must make out a prima facie case by “showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]” (People v. Cornwell, supra, 37 Cal.4th at pp. 66-67, quoting Johnson v. California (2005) 545 U.S. 162 , 168 [ 162 L.Ed.2d 129 , 125 S.Ct. 2410 ].)

Here, the court found a prima facie case (unchallenged on appeal), thus shifting the burden to the prosecutor, and the prosecutor gave facially neutral reasons for each strike. We are therefore concerned with the third step of the analysis (People v. Silva (2001) 25 Cal.4th 345 , 384 [ 106 Cal.Rptr.2d 93 , 21 P.3d 769 ]; accord, Purkett v. Elem (1995) 514 U.S. 765 , 767 [ 131 L.Ed.2d 834 , 115 S.Ct. 1769 ] (Purkett)), whether there was purposeful racial discrimination. That step required the court to make “ ‘ “a sincere and reasoned attempt to evaluate the prosecutor’s explanation[s] in light of the circumstances of the case as then known” ’ ” (People v. Reynoso (2003) 31 Cal.4th 903 , 919 [ 3 Cal.Rptr.3d 769 , 74 P.3d 852 ])—i.e., “all of the circumstances”; (Pe ople v. Johnson (2003) 30 Cal.4th 1302 , 1322 [ 1 Cal.Rptr.3d 1 , 71 P.3d 270 ], overruled on other grounds in Johnson v. California, supra, 545 U.S. 162 , 173.) “This final step involves evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor, but ‘the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ (Purkett, supra, [514 U.S.] at [p.] 768 [ 131 L.Ed.2d 834 , 115 S.Ct. 1769 ].)” (Rice v. Collins (2006) 546 U.S. 333 , 338 [ 163 L.Ed.2d 824 , 126 S.Ct. 969 , 974].)

(People v. Howard (1992) 1 Cal.4th 1132 , 1165 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ].) It is true as well under the United States Constitution . . . (People v. Howard, supra, 1 Cal.4th at p. 1166.) The record on appeal is inadequate, however, only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal. (See id. at pp. 1165-1166.)” (People v. Alvarez (1996) 14 Cal.4th 155 , 196, fn. 8 [ 58 Cal.Rptr.2d 385 , 926 P.2d 365 ].)

In People v. Ayala (2000) 24 Cal.4th 243 , 270 [ 99 Cal.Rptr.2d 532 , 6 P.3d 193 ], and People v. Alvarez, supra, 14 Cal.4th at page 196, footnote 8, the California Supreme Court held that lost juror questionnaires did not impede meaningful appellate review of a Batson-Wheeler claim. (See also People v. Haley (2004) 34 Cal.4th 283 , 305 [ 17 Cal.Rptr.3d 877 , 96 P.3d 170 ] [applying People v. Ayala and People v. Alvarez in the context of challenge for cause].) In People v. Alvarez, the court held that it is the defendant’s burden to show that a deficient record prejudiced his ability to prosecute his appeal. (People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.) There, the court determined that the defendant had not met his burden of showing that the absence of the juror questionnaires prejudiced his ability to assert his Batson-Wheeler claim. (Ibid.) “Indeed, material from the now lost items survives in the reporter’s and clerk’s transcripts through quotation and paraphrase.” (Ibid.) In People v. Ayala, the court explained that despite the absence of the juror questionnaires the record was sufficiently complete to decide defendant’s Wheeler claims. (People v. Ayala, supra, 24 Cal.4th at p. 270.)

Defendant maintains that the “weight of the holdings” in People v. Ayala, supra, 24 Cal.4th 243 , and People v. Alvarez, supra, 14 Cal.4th 155 , is “questionable” in light of Miller-El v. Dretke (2005) 545 U.S. 231 [ 162 L.Ed.2d 196 , 125 S.Ct. 2317 ] (Miller-El), and Johnson v. California, supra, 545 U.S. 162 . He maintains that a “much more detailed de novo-type review is required in California by the federal constitution.” We disagree.

In Johnson v. California, the United States Supreme Court addressed the “narrow but important” issue of the scope of the first Batson step. (Johnson v. California, supra, 545 U.S. 162 , 168.) The question before the court was “whether Batson permits California to require at step one that ‘the objector must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias.’ [Citation.]” (Ibid., quoting People v. Johnson, supra, 30 Cal.4th at p. 1318.) The court held “that California’s ‘more likely than not’ standard is an inappropriate yardstick by which to measure the sufficiency of a prima case.” (Johnson v.

Contrary to defendant’s assertion, we find nothing in Johnson v. California or Miller-El as calling into doubt California Supreme Court precedent pertaining to the effect of lost juror questionnaires. Nor do we find anything in either decision requiring a more “de novo-type” review of trial court’s ruling at Batson's third step. Our Supreme Court recently explained that “[t]he fundamental inquiry remains the same after Miller-El as before: Is there substantial evidence to support the trial court’s ruling that the prosecutor’s reasons for excusing prospective jurors were based on proper grounds, and not because of the prospective jurors’ membership in a protected group? If so, then defendant is not entitled to relief. In undertaking this inquiry, we note that the question is not whether we as a reviewing court find the challenged prospective jurors similarly situated, or not, to those who were accepted, but whether the record shows that the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects .... Miller-El teaches that if a ‘stated reason does not hold up, its pretextual significance does not fade because ... an appeals court, can imagine a reason that might not have been shown up as false.’ (Miller-El, supra, [545 U.S. at p. 252].)” (People v. Huggins, supra, 38 Cal.4th at p. 233.) Our Supreme Court explained that it would confine its review “to whether the prosecutor . . . honestly found pertinent and legitimate dissimilarities between members of the group he challenged and the group he accepted.” (Ibid.)

Defendant maintains that the record is insufficient because Miller-El, supra, 545 U.S. 231 , and recent California Supreme Court precedent requires an appellate court to engage in a comparative juror analysis for the first time on appeal. According to defendant, the absence of the questionnaires from the unseated jurors prevents this court from determining: “(1) what percentage of the total available African-American jurors [was] challenged at each point in the proceedings; (2) what the racial composition of the jury was at the time of each challenge; (3) whether unchallenged, but unsworn, jurors had similar questionnaire responses to challenged jurors; (4) whether jurors with certain questionnaire responses were questioned more or less closely than others; (5) whether the prosecution tried to rehabilitate some jurors with similar questionnaire responses to those of the challenged jurors, who were not rehabilitated; (6) whether the original answers on the challenged jurors’ questionnaires had been misinterpreted by the prosecution and/or the court below.”

Preliminarily, although it appears that the Miller-El court performed a comparative juror analysis for the first time on appeal (see People v. Huggins, supra, 38 Cal.4th at p. 232), the high court did not mandate that such an analysis be performed by an appellate court. (People v. Gray (2005) 37 Cal.4th at 168, 189 [ 33 Cal.Rptr.3d 451 , 118 P.3d 496 ] [“Miller-El[, supra, 545 U.S.

including the questionnaires of the seated jurors, we find nothing that entitles defendant to relief.

Regarding Juror No. 70, the prosecutor provided the following reasons for excusing her: (1) she had just served on a jury in a burglary case a little over a year before the instant case, and stated that she preferred not to serve; (2) she stated on the questionnaire that the first thought that came to mind when she thought of police was “racial profiling,” and (3) she was chewing gum during voir dire, which the prosecutor believed showed a lack of respect for the court.

At trial, defense counsel argued that other unchallenged jurors, specifically Juror Nos. 39 and 76, stated that there were good and bad officers. However, when Juror No. 39 was questioned by the trial court, she stated that she had only “good experiences” with police officers. Juror No. 39 also wrote “security” in her questionnaire, as the first thing that came to mind regarding police officers. While it is true that Juror No. 76, as well Juror No. 74, acknowledged in their questionnaires that some police officers could be bad, they also included positive comments about police officers protecting the community. Additionally, both Juror Nos. 76 and 74 stated that they had not had any negative experiences with police officers.

Defense counsel also argued below that Juror Nos. 79 and 22 may have problems with police officers. In her juror questionnaire, Juror No. 79 indicated that a friend who was mugged reported that the police officer was not sympathetic or helpful. She also indicated that a friend’s home was damaged and ransacked when her son’s friend was found dead. Juror No. 79 did not list any personal experiences with police officers that were negative and stated that “public service” and “dangerous situations” were the first things that came to mind when thinking of police officers. Additionally, the record reflects that Juror No. 22 had no negative experiences with police officers.

Moreover, no seated juror stated that “racial profiling” was the first thing that came to mind when thinking of the police. In fact, the responses of the seated jurors about the police were overwhelmingly positive.

Additionally, while Juror No. 63 had given various reasons for why she did not want to serve, she did not state any negative bias about the police. Rather, she expressed “hatred” for criminal defendants, because her husband had been murdered in the Philippines. On appeal, defendant argues that Juror

The prosecutor’s reasons for excusing Juror No. 70 were neither contradicted by the record nor inherently improbable. (See People v. Avila, supra, 38 Cal.4th at pp. 547-548 [prosecutor believed challenged juror’s personal experience with police caused the juror to question the veracity of police officers]; People v. Turner (1994) 8 Cal.4th 137 , 171 [ 32 Cal.Rptr.2d 762 , 878 P.2d 521 ], disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 536 , 555, fn. 5 [ 15 Cal.Rptr.3d 743 , 93 P.3d 344 ] [prosecutor’s peremptory challenges based on prospective juror’s negative experience with law enforcement upheld]; see also People v. Ward, supra, 36 Cal.4th at p. 205.) Substantial evidence supports the trial court’s finding on the credibility of the prosecutor’s explanations. (People v. Huggins, supra, 38 Cal.4th at p. 233; People v. Jurado, supra, 38 Cal.4th at p. 105.)

With respect to Juror No. 81, the prosecutor explained that she challenged her because: (1) she had been “very critical” of how the Oakland Police Department had handled the investigation of her domestic violence issues; and (2) she failed to answer questions on the questionnaire. The prosecutor stated that based upon Juror No. 81’s answers, she was concerned that the juror would judge the Oakland police more harshly. While it is true that Juror No. 76 also skipped a question on the questionnaire, neither she nor any of the seated jurors answered questions in a manner that raised concerns about their ability to assess the credibility of police officers who might testify in the case.

The record reflects that the prosecutor peremptorily challenged Juror No. 19, who in response to the prosecutor’s question about Oakland police officers, stated, “Oakland Police Officers have been known to be very corrupt.” The record further reflects that the prosecutor did not challenge Juror No. 34, a Hispanic man, whose brother-in-law was killed while in police custody in Modesto. When asked in the questionnaire to comment about the fairness and effectiveness of the criminal justice system, Juror No. 34 wrote, “I believe we have the best system in the world today.” He thought of “safety” when thinking about police officers. And “good lawyer” came to Juror No. 34’s mind when thinking about prosecutors.

Finally, the fact that Juror No. 81 said that she could set aside her feelings about the Oakland Police Department does not call into question the credibility of the prosecutor’s reasons for excusing her. The record reflects that Juror No. 81 was somewhat equivocal about whether she could put aside her negative feelings, first stating that she was not sure if her past experiences with the Oakland Police Department would affect her ability to be fair and impartial. Upon further questioning by the court, Juror No. 81 stated her past experiences “probably wouldn’t” affect her ability to evaluate the testimony of Oakland police officers who might testify.

The record reflects that the prosecutor peremptorily challenged Juror No. 26, a White woman, who gave similarly equivocal responses. Juror No. 26 stated that she had been a victim of domestic violence for approximately seven years. Juror No. 26 said she was “ambivalent” about the district attorney’s choice to not prosecute the case. However, her feelings about law enforcement, in general, were “mixed.”

The prosecutor was not required to believe Juror No. 81’s assertion that she could set aside her feelings about the Oakland Police Department. (See People v. Avila, supra, 38 Cal.4th at pp. 554—555 [record established numerous reasons other than racial bias for challenging juror, notwithstanding juror’s assurances that prior experiences would not carry over to trial].) The prosecutor’s reasons for excusing Juror No. 81 were neither contradicted by the record nor inherently improbable. (People v. Ward, supra, 36 Cal.4th at p. 205.) Substantial evidence supports the trial court’s finding on the credibility of the prosecutor’s explanations. (People v. Huggins, supra, 38 Cal.4th at p. 233; People v. Jurado, supra, 38 Cal.4th at p. 105.)

As to Juror No. 7, although the trial court did have some reservations about the prosecutor’s reasons for challenging this juror, substantial evidence supports the trial court’s ultimate denial of defendant’s Batson-Wheeler motion. The prosecutor stated that she challenged Juror No. 7 because: (1) multiple members of her family had been arrested by the Oakland Police Department; (2) her son, who had been arrested by the Oakland Police Department for assault, was the same age as defendant; (3) she stated that the first thing that comes to mind when she thinks of the police is “trouble”; and (4) she stated that the first thing that comes to mind when she thinks of defense attorneys is “make the right decision.”

The record reflects that no seated jurors had immediate family members with multiple arrests by the Oakland Police Department. Although Juror No. 7 stated that she felt her brother and sister had been treated fairly, the prosecutor believed that she was more defensive about her son’s arrest and conviction. From the cold record before us, we cannot determine the tone or manner in which Juror No. 7 answered questions about her son. “The trial judge is best placed to consider the factors that underlie credibility: demeanor, context, and atmosphere. And the trial judge is best placed to determine whether, in a borderline case a prosecutor’s hesitation or contradiction reflect (a) deception, or (b) the difficulty of providing a rational reason for an instinctive decision.” (Rice v. Collins, supra, 546 U.S. at p. 343 [126 S.Ct. at p. 977] (conc. opn. of Breyer, J.).)

Defense counsel argued below that it was only natural that Juror No. 7 would view her son’s case differently, and that she nonetheless stated that she

felt she could be fair. However, given the number of Juror No. 7’s relatives who were arrested by the Oakland Police Department and thereafter convicted, it was not unreasonable for the prosecutor to be skeptical. (See People v. Avila, supra, 38 Cal.4th at pp. 554-555; see also People v. Farnam (2002) 28 Cal.4th 107 , 138 [ 121 Cal.Rptr.2d 106 , 47 P.3d 988 ] [“close relative’s adversary contact with the criminal justice system” reasonable grounds for prosecutor’s challenge]; Wheeler, supra, 22 Cal.3d at p. 277, fn. 8 [prospective juror’s stepson’s conviction “deemed to give rise to a significant potential for bias against the prosecution”]; People v. Douglas (1995) 36 Cal.App.4th 1681 , 1690 [ 43 Cal.Rptr.2d 129 ] [valid grounds for challenging jurors whose relatives and/or family members had negative experiences with criminal justice system]; People v. Allen (1989) 212 Cal.App.3d 306 , 314—316 [ 260 Cal.Rptr. 463 ] [valid grounds for challenging jurors included having relatives or close friends who have been arrested].) Additionally, citing People v. Moss, supra, 188 Cal.App.3d 268 , the prosecutor asserted that Juror No. 7 might be sympathetic towards the defense, because her son was 44 years old, which was about the same age as defendant. There, as here, a prosecutor proffered numerous reasons for challenging a prospective juror, including the fact that she had sons who were the approximate age of the defendant. (Id. at p. 280.) The appellate court determined that the prosecutor’s alternate reason for challenging the prospective juror based on the ages of her sons did “not survive analysis[, as] three unchallenged jurors (two women and one man) also had sons the same age.” (People v. Moss, supra, 188 Cal.App.3d at pp. 280-281.) Here, unlike in People v. Moss, none of the seated jurors had children who were the approximate age of defendant. Additionally, none of the seated jurors had children who had been arrested.

The prosecutor was also concerned about Juror No. 7’s responses on her questionnaire regarding the first thing that came to mind regarding police officers (“trouble”) and defense attorneys (“make the right decision”). The prosecutor believed that Juror No. 7’s responses indicated that she was “clearly defense-oriented” and unable to be fair in this case. The prosecutor was not required to accept Juror No. 7’s neutral explanation for these equivocal responses. (See People v. Avila, supra, 38 Cal.4th at pp. 554—555.) No seated juror gave similar responses when referring to the police and defense attorneys.

Finally, contrary to defendant’s assertion, the record does not reflect that “the judge felt Juror 7 was excused due to her race.” Rather, the record reflects that the trial court expressed uncertainty about the prosecutor’s challenge of Juror No. 7, which “may reflect the more general fact that, sometimes, no one, not even the lawyer herself, can be certain whether a decision to exercise a peremptory challenge rests upon an impermissible racial, religious, gender-based, or ethnic stereotype. ... [][].. . Appellate judges cannot on the basis of a cold record easily second-guess a trial judge’s

T

he judgment is affirmed.

Reardon, Acting P. J., and Rivera, J., concurred.

Appellant’s petition for review by the Supreme Court was denied April 18, 2007, S149352. George, C. J., did not participate therein.