People v. Douglas

The prosecutor said he challenged J. because of J.'s close relationship with a public defender, particularly because she had discussed the personality traits of local prosecutors with J. and told J. she considered prosecutors to be on "the dark side."

The prosecutor said he challenged L. based on demeanor, stating that when defendant's counsel got up, L. leaned forward and seemed more attentive, but when the prosecutor spoke, L. leaned back and gave answers that were short and not descriptive.

The prosecutor then added the following rationale about both men:

"In addition, in a case in which the victim in the case is in a relationship and is not in a relationship with a female but is not out of the closet and actually was untruthful with the police about the extent of his relationship with a male prostitute, I think that that particular [persons'] testimony may be viewed with bias [by] those who are willing to be openly gay and not-not lie about it and can be frank about it, and he would view that as a negative character trait, and an individual who attempts to maintain given whatever grave idea, sexuality he has, but is willing to lie about it.

"So I think there is a number of reasons, both specific to the case that are sexuality neutral, not-I'm not asserting [ sic , conceding?] in any way that is an adequate basis for [a] Wheeler motion, but even given that I think there

Hernandez v. New York (1991) 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 affirmed a finding that a prosecutor's reason for striking two Latino jurors was race-neutral and genuine; the prosecutor had excused them because their demeanor and responses caused him to doubt their ability to defer to the official translation of Spanish-language testimony anticipated at trial. ( Id. at pp. 356-357, 111 S.Ct. 1859 (plur. opn.).) The fact such reasoning might disproportionately impact prospective Latino jurors did not make it improper. ( Id. at pp. 361-363, 111 S.Ct. 1859 .) In a concurring opinion, Justice O'Connor, joined by Justice Scalia, aptly observed that Batson "does not require that the [prosecutor's] justification be unrelated to race. Batson requires only that the prosecutor's reason for striking a juror not be the juror's race." ( Id. at p. 375, 111 S.Ct. 1859 (conc. opn. of O'Connor, J.).)

Following this line of reasoning, we can certainly imagine a case where an openly gay venireperson who expressed contempt for or distrust of closeted

As indicated, both the substantial factor and mixed-motive approaches permit strikes based in part on invalid reasons. In this case, the prosecutor admitted to striking the only two gay veniremen known to be on the jury, expressly because they were known to be gay. We endorse the following view, while acknowledging that it is not precedential: "To excuse such

To put the issue before us further into perspective, given the prosecutor's apparent concerns regarding how jurors would view the victim of this crime, the prosecutor would have been in fair territory during voir dire if the prosecutor, after noting for the prospective jurors that the victim of this crime was a gay man who had not before openly acknowledged his sexual orientation, had inquired of all the prospective jurors whether there was any reason why this victim, and thus the prosecution, could not receive a fair trial simply because the victim was a gay man, or because the victim had not acknowledged his sexual orientation openly before the events leading to the commission of this crime. Had the prosecution done so and had any of the prospective jurors answered those questions in a way that legitimately placed into question whether that prospective juror could be fair and impartial to both sides in judging the facts of the case, a valid challenge would have been the result.

Put simply, the majority reverses the defendant's conviction for a serious crime, otherwise fairly obtained, because the prosecutor exercised a peremptory challenge that may have been based solely on an unwarranted assumption concerning the views of openly gay men.

In any event, the per se test the majority adopts today misses a proper balance; the prosecutor may well have legitimately stricken the two prospective jurors regardless of their sexual orientation. The mixed motive approach, by contrast, strikes the proper balance between protecting a defendant's constitutional rights, preserving the public's confidence in the fairness of our

The majority has "no trouble upholding the trial court's findings that the prosecutor had facially valid reasons for challenging" the two jurors (maj. opn. at p. 311), but concludes that defendant's convictions must be reversed nonetheless. The majority does so for several reasons, none of which are convincing.

First, as support for rejecting the mixed motive approach that we initially adopted, the majority cites Wilkerson v. Texas (1989) 493 U.S. 924 , 110 S.Ct. 292 , 107 L.Ed.2d 272

Batson , moreover, explicitly relied on the Court's prior equal protection jurisprudence as articulated in cases such as Village of Arlington Heights v. Metropolitan Housing Development Corporation (1977) 429 U.S. 252 , 271, 97 S.Ct. 555 , 566, 50 L.Ed.2d 450 , 468 ( Arlington Heights ). (See, e.g., Batson, supra, 476 U.S. at pp. 93-94, 106 S.Ct. 1712 .) There,

I stress at this point that nothing in this record suggests or demonstrates that, unlike the situation in Hunter , the prosecutor's motivation in exercising these challenges was to discriminate against gay men.

In Mt. Healthy, supra, 429 U.S. 274 , 97 S.Ct. 568 an untenured teacher brought an action for reinstatement to his teaching position claiming that, in fact, he had been dismissed from his teaching position for exercising his right to free speech.

In its holding the Supreme Court set forth a portion of the district court's findings:

"The District Court made the following 'conclusions' on this aspect of the case:

"1) If a non-permissible reason, e.g., exercise of First Amendment rights, played a substantial part in the decision not to renew-even in the face of other permissible grounds-the decision may not stand (citations omitted).

"2) A non-permissible reason did play a substantial part. That is clear from the letter of the Superintendent immediately following the Board's decision, which stated two reasons-the one, the conversation with the radio station clearly protected by the First Amendment. ...

"At the same time, though, [the District Court] stated that '(i)n fact, as this Court sees it and finds, both the Board and the Superintendent were faced with a situation in which there did exist in fact reason ... independent of any

"As with all other inquiries concerning mental state, the ultimate determination is an inference from all the pertinent circumstances, whether or not an acknowledgement [that an improper reason was a determinative factor in motivating a strike] occurs." ( Howard, supra, 986 F.2d at p. 31.) "Simply because fact-finding on an issue of mental state like motivation is difficult is no reason to alter the normal approach to fact-finding nor to diminish

While it is unclear whether the fact that the white juror later recanted what was set forth in his first affidavit had a bearing on the Court's observation regarding the defendant's showing of prejudice, Tharpe , at a basic level, shows, at least, that a judgment of conviction need not be automatically, and always, set aside whenever discriminatory animus is shown even though the evidence also shows that such animus may not have been the determinative factor that ultimately lead to that conviction.

I am also not persuaded that our own state Constitution's due process clause ( Cal. Const., art. I, § 7, subd. (a) ) dictates adopting the per se test. (Maj. opn. at p. 315-16.) The dignitary interest discussed in the cases cited by the majority is the interest, through a hearing, of "informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official." ( Saleeby v. State Bar (1985) 39 Cal.3d 547 , 563-565, 216 Cal.Rptr. 367 , 702 P.2d 525 ; Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197 , 213, 159 Cal.Rptr.3d 358 , 303 P.3d 1140 .) To the extent the cases cited apply at all here, under the mixed motive test, the trial judge, an impartial government official, must consider all of a prosecutor's proffered reasons, both permissible and impermissible, and decide the determinative factor that motivated a strike. The burden is on the prosecutor. The defendant's due process liberty interest in both fair and unprejudiced decision making and in being treated with respect and dignity is thus protected.

Furthermore, "[i]n determining applicable due process safeguards, it must be remembered that 'due process is flexible and calls for such procedural protections as the particular situation demands.' " ( People v. Ramirez (1979) 25 Cal.3d 260 , 268, 158 Cal.Rptr. 316 , 599 P.2d 622 .) The mixed motive approach provides the flexibility and procedural protections needed to safeguard a defendant's constitutional rights. If the prosecutor meets his burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered, defendant can "no longer

The majority justifies its decision under the broad rubric of fairness and equality, but there may not have been, in the final analysis, anything unfair or unequal in defendant's trial. The neutral reasons for striking the openly gay jurors may well have been valid. Reversing the unbiased jury's convictions for a very serious crime under such circumstances-without first determining the motivation and import of what in fact motivated the prosecutor to strike the openly gay jurors-denigrates rather than protects the equality and fairness of our criminal justice system.

While the majority's quest for social perfection in our criminal justice system is, I am sure, well-meaning, its decision in this instance is misguided. Importantly, that decision comes with a significant societal cost; the automatic reversal of a conviction for serious crimes of violence that may, in fact, have been fairly tried and entered untainted by constitutional error.

are [bases] not only in their reaction in court in answering questions, but also given the specific facts of this case ." (Italics added.)

To this explanation, Sharpe's counsel responded that "[u]nder that justification, anyone who is openly gay" would automatically be challenged.

The trial court denied the defense motion, questioning in passing whether a Wheeler motion based on sexuality discrimination was appropriate.

Citing J.'s relationship with the public defender and her "dark side" comment about prosecutors, the trial court found the prosecutor's challenge to J. was justified. As for L., the trial court accepted the prosecutor's demeanor-based rationale for the challenge. Because the trial court made no response to Sharpe's counsel's pointed objection, we presume the trial court simply found the facially non-discriminatory reasons were sufficient and had no need to address the effect of the last reason. In effect, that was the rough equivalent to applying a mixed-motive analysis to the challenges.

DISCUSSION

Defendant contends the trial court erred in denying his Batson / Wheeler motion because, in his view, the prosecutor impermissibly excused two openly gay jurors based on unsupported assumptions predicated on their sexual orientation. We agree.

General Principles for Evaluating Peremptory Challenges

Both the state and federal Constitutions prohibit using peremptory challenges to remove prospective jurors based solely on group bias. (

We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges with restraint. (See People v. Thomas (2011) 51 Cal.4th 449 , 474, 121 Cal.Rptr.3d 521 , 247 P.3d 886 .) The trial court's determination is a factual one, and so long as the trial court makes a sincere and reasoned effort to evaluate the justifications offered, its conclusions are entitled to deference on appeal when they are supported by substantial evidence. (See Hamilton, supra, 45 Cal.4th at pp. 900-901, 89 Cal.Rptr.3d 286 , 200 P.3d 898 ; Thomas, at p. 474, 121 Cal.Rptr.3d 521 , 247 P.3d 886 .) The issue is whether the trial court finds the prosecutor's explanation to be credible, based on factors such as the reasonableness of the explanation, the prosecutor's demeanor, and the trial court's own observations of the voir dire. (See Lenix, supra, 44 Cal.4th at p. 613, 80 Cal.Rptr.3d 98 , 187 P.3d 946 .) With these principles in mind, we turn to the specific challenges under review.

The Peremptory Challenges in this Case

We have no trouble upholding the trial court's findings that the prosecutor had facially valid reasons for challenging these jurors. J.'s relationship with a deputy public defender who thought prosecutors worked for the "dark side" could trouble any prosecutor, and L.'s terse answers and negative body language (something the trial court could observe but that we cannot second-guess on a cold transcript) could also give reasonable cause for concern. (See Lenix, supra, 44 Cal.4th at p. 623, 80 Cal.Rptr.3d 98 , 187 P.3d 946 [perceived bias against prosecution]; see also id. at p. 613, 80 Cal.Rptr.3d 98 , 187 P.3d 946 ["facial expressions, gestures, hunches"]; People v. Reynoso (2003) 31 Cal.4th 903 , 924-925, 3 Cal.Rptr.3d 769 , 74 P.3d 852 [where prosecutor sees "the potential juror glare at him, or smile at the defendant or defense counsel"].)

But the prosecutor then proffered another reason applicable to both prospective jurors. The prosecutor explained that because both of these jurors were openly gay , he thought they might be biased against the closeted victim, the main witness.

Defendant argues this additional reason is baldly discriminatory and no different from a similar one rejected in Batson : A prosecutor cannot assume a

We acknowledge that a challenge based solely on a prospective juror's membership in a particular group is different from a challenge " 'which may find its roots in

Both veniremen said they could be fair, and neither expressed concerns about closeted homosexuals. The bias alleged by the prosecutor was a product of the prosecutor's impermissible group assumptions, unsupported by the record and based solely on the two jurors' sexuality. The prosecutor specifically asked the panel whether "anybody [had] an automatic reaction where they would vote guilty or not guilty because some of the people involved in this case, either witnesses or people who are accused are homosexual." No one responded in the affirmative. Thus, this is not a case where a challenge touching on homosexuality, but not based on it, is in play. The prosecutor gave as a reason for his challenge his assumption that the only two openly gay veniremen would look askance at the victim's lifestyle simply because

The Ninth Circuit has instead adopted a substantial motivating factor approach, limiting its inquiry to "whether the prosecutor was 'motivated in substantial part by discriminatory intent.' " ( Cook v. LaMarque (9th Cir. 2010) 593 F.3d 810 , 814-815.) Under this test, if a bad reason is given, it can be ignored so long as the prosecutor's motivation is not substantially driven by it. ( Id . at p. 826 ["the prosecutor gave both persuasive and unpersuasive justifications for his strikes. Even assuming the unpersuasive grounds were actually pretext, we cannot conclude his strikes were ultimately motivated in substantial part by race"].)

The "mixed motive" concept arose in non- Batson contexts, such as in employment discrimination lawsuits, where a defendant-employer seeks to show that the adverse action would have been taken against the plaintiff-employee regardless of any racial or other invidious animus. (See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle (1977) 429 U.S. 274 , 287, 97 S.Ct. 568 , 576, 50 L.Ed.2d 471 , 483-484 [district court should have determined whether the board could show it would not have rehired a teacher who engaged in constitutionally protected speech in the absence of the teacher's protected conduct]; Kesser , supra , 465 F.3d at p. 373 [in non- Batson contexts, the high court "has consistently and repeatedly applied mixed-motive analysis where both permissible and impermissible motivations are present"]; Cox, The "Tainted Decision-Making Approach": A Solution for the Mixed Messages Batson Gets from Employment Discrimination (2006) 56 Case W. Res. Law Rev. 769, 782-789 [describing the civil law origin of mixed-motive analysis, and arguing it should not be extended to Batson error].)

"[A]lthough the initial three-step framework of Batson does derive from Title VII jurisprudence, the 'but for' causation requirement that has been applied in those contexts [citations], is not appropriate in the distinct Batson context. The difficult task of 'ferreting out discrimination' would be made nearly impossible by a 'but for' causation requirement, which would require a court to engage in counterfactual reasoning, often with only a sparse record to guide it. [Citation.]" ( Cook v. LaMarque , supra , 593 F.3d at p. 828 (conc. & dis. opn. of Hawkins, J.).) Further, the mixed-motive approach does not translate well to a Batson situation where the question is not only whether a prospective juror would have been challenged anyway, but also implicates systemic fairness.

For this reason, many-if not most-of our sister state courts have rejected application of a "mixed motive" or "dual motivation" analysis. (See, e.g., McCormick v. State (Ind. 2004) 803 N.E.2d 1108 , 1113 ["it is not appropriate to apply the dual motivation analysis in the Batson context;" one biased "challenge tainted any nondiscriminatory reasons"]; State v. Lucas (Ariz. App. 2001) 199 Ariz. 366 , 369, 18 P.3d 160 , 163 ["any consideration of a discriminatory factor directly conflicts with the purpose of Batson and taints the entire jury selection process"];

Thus, the per se approach-while not universally held-is well-grounded in the law.

Further, Wheeler was based on independent state grounds-the right to a jury composed of a representative cross-section of the community under article I, section 16 of our constitution. ( Wheeler , supra , 22 Cal.3d at pp. 265-272, 148 Cal.Rptr. 890 , 583 P.2d 748 .) Although our Supreme Court has since followed high court decisions after Batson , this circumstance leads us to consider the application of another independent ground: Our own due process clause ( Cal. Const., art. I, § 7, subd. (a) ) has independent-and greater-force than its federal analog: It protects the dignity interest in obtaining an untainted adjudication (see Saleeby v. State Bar (1985) 39 Cal.3d 547 , 563-565, 216 Cal.Rptr. 367 , 702 P.2d 525 ). As stated by our Supreme Court:

" ' [E]ven in cases in which the decision-making procedure will not alter the outcome of governmental action , due process may nevertheless require that certain procedural protections be granted the individual in order to protect important dignitary values, or, in other words, "to ensure that the method of interaction itself is fair in terms of what are perceived as minimum standard of political accountability-of modes of interaction which express a collective judgment that human beings are important in their own right and that they must be treated with understanding, respect, and even compassion." ' " (

Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197 , 213 [ 159 Cal.Rptr.3d 358 , 303 P.3d 1140 ], quoting People v. Ramirez (1979) 25 Cal.3d 260 , 267-268 [ 158 Cal.Rptr. 316 , 599 P.2d 622 ], first italics added, second in Today's Fresh Start ; see

In our analysis of this assertion of error, it is important to focus on what exactly occurred in the trial court. The People did not strike the two jurors because they

I therefore dissent.

An argument can be made that there is no Batson / Wheeler violation here at all. (See e.g., Hernandez v. New York (1991) 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 ; People v. Hamilton (2009) 45 Cal.4th 863 , 89 Cal.Rptr.3d 286 , 200 P.3d 898 ; People v. Martin (1998) 64 Cal.App.4th 378 , 75 Cal.Rptr.2d 147 .) Batson / Wheeler , as this field of jurisprudence has become known, is a nebulous area of the law. ( Batson v. Kentucky (1986) 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 ; People v. Wheeler (1978) 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 ( Batson / Wheeler ). ) Where the line is drawn between constitutionally legitimate informed guesses about an individual juror's mind set given that juror's demographics and answers during jury selection (a guess that drives nearly every peremptory challenge a trial lawyer makes and a guess that has given rise to an industry predicting the mind set of given jurors based on demographics) and unconstitutional discrimination in jury selection is often unclear. One hopes for some added clarity in the future.

But the parties and amici and the majority have litigated and decided this matter on the assumption that the Batson / Wheeler doctrine is here in play and I will address only the proper remedy in this case.

The majority's reliance on Wilkerson rests on shaky grounds. Statements accompanying denials of certiorari have no binding or precedential value. As Justice Stevens emphasized in an opinion respecting the denial of the petition for writ of certiorari in Singleton v. C.I.R. (1978) 439 U.S. 940 , 99 S.Ct. 335 , 58 L.Ed.2d 335 , all opinions dissenting from the denial of certiorari are "totally unnecessary" and are "examples of the purest form of dicta, since they have even less legal significance" than the Court's order denying certiorari which has no precedential significance at all. ( Id. at pp. 944-945, 99 S.Ct. 335 ; see also In re I.F. (2018) 20 Cal.App.5th 735 , 764, 229 Cal.Rptr.3d 462 .) Justice Stevens further noted that such opinions are also "potentially misleading." ( Singleton, at p. 945, 99 S.Ct. 335 .) Because the Court "provides no explanation of the reasons for denying certiorari, the dissenter's arguments in favor of a grant are not answered and therefore typically appear to be more persuasive than most other opinions." ( Ibid. )

Next, the majority rejects the mixed motive approach because, in the majority's view, it has been adopted only in non Batson contexts such as employment discrimination lawsuits. (Maj. opn. at p. 314.) But Batson itself states that, "[a] recurring question in these [jury discrimination] cases, as in any case alleging a violation of the Equal Protection Clause , was whether the defendant had met his burden of proving purposeful discrimination on the part of the State." ( Batson, supra , 476 U.S. at p. 90, 106 S.Ct. 1712 ; italics added.) Thus, as the Second Circuit recognized in Howard v. Senkowski (2d Cir. 1993) 986 F.2d 24 , 27 ( Howard ), Batson "plac[ed]

Arlington Heights expressly recognized the following: "[p]roof that the decision by the Village was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered. If this were established, the complaining party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose. In such circumstances, there would be no justification for judicial interference with the challenged decision." ( Arlington Heights, supra, 429 U.S. at p. 270, fn. 21, 97 S.Ct. 555 .) The high Court was undoubtedly aware of its decision in Arlington Heights , including the mixed motive analysis the opinion expressly sanctions, when favorably citing the opinion in Batson . ( Batson, supra, 476 U.S. at pp. 93-94, 106 S.Ct. 1712 .)

And contrary to the majority's implicit suggestion that the mixed motive approach is better suited in the employment discrimination context rather than in the jury selection context (maj. opn. at p. 314), the Supreme Court has applied the mixed motive approach in other areas of similar constitutional magnitude to selecting an impartial jury.

For example, in Hunter v. Underwood (1985) 471 U.S. 222 , 228, 105 S.Ct. 1916 , 85 L.Ed.2d 222 ( Hunter ), the Supreme Court applied a mixed motive analysis when determining the constitutionality of a provision in the Alabama Constitution that disenfranchised persons convicted of crimes involving moral turpitude. Evidence showed that although the law was neutral on its face, applying equally to anyone convicted of one of the enumerated crimes, the purpose of the law was to disenfranchise blacks. ( Id. at pp. 227-229, 105 S.Ct. 1916 .)

Notably, in Hunter the state argued that the existence of a permissible motive for the state constitutional provision, the disenfranchisement of poor whites, trumped any proof of a parallel impermissible motive of disenfranchising blacks. ( Hunter, supra, 471 U.S. at pp. 231-232, 105 S.Ct. 1916 .) Without deciding whether the intentional disenfranchisement of poor whites would qualify as a " 'permissible motive,' " the court found that "where both impermissible racial motivation and racially discriminatory impact are demonstrated, Arlington Heights and Mt. Healthy [ City Sch. Dist. Bd. of Educ. v. Doyle (1977) 429 U.S. 274 , 287, 97 S.Ct. 568 , 576, 50 L.Ed.2d 471 , 483-484 ( Mt. Healthy ) ] supply the proper analysis." ( Id. at p. 232, 105 S.Ct. 1916 .) An additional purpose to discriminate against poor

In a government by the people and for the people, the critical nature of the right

Ultimately, the Supreme Court held that:

"Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a 'substantial factor'-or, to put it in other words, that it was a 'motivating factor' in the Board's decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent's re-employment even in the absence of the protected conduct." ( Mt. Healthy, supra, 429 U.S. at p. 286, 97 S.Ct. 568 .)

The Supreme Court returned the matter to the district court to reconsider its holding applying that test.

The majority's concern that ferreting out discrimination is a "difficult task" (maj. opn. at p. 314) does not present an insurmountable problem of proof for trial courts and shows little faith in trial court judges' abilities in ferreting out impermissible discrimination. Trial courts already face such demands when evaluating Batson / Wheeler challenges. Just as I am confident in a " 'trial court's ability to distinguish bona

Nor do I accept the cynical view that the mixed-motive approach is a gateway to extensive abuse. Although amicus suggest that mixed-motive analysis will allow myriads of prosecutors to exhibit obvious unlawful bias against potential jurors and then cure the violation by offering vague, neutral explanations, I am "unwilling to accept the premise of this argument that prosecutors will readily disregard the obligations of their office and violate the requirements of an oath by swearing false denials of [discriminatory group bias] motivation." ( Howard, supra, 986 F.2d at p. 31.) Based on the trial court's observations of a trial lawyer's demeanor, questioning, and the overall voir dire process, I believe trial courts are well equipped for those instances, where such dissembling may occur, to recognize that vague neutral reasons for a particular strike were not in fact the true motivation behind that strike.

That other states have adopted the per se test does not convince me the mixed motive approach is improper in the Batson context. (Maj. opn. at p. 314-15.) Several federal courts that have considered the issue, as the majority concedes (maj. opn. at p. 312-13), have found no impediment to applying the mixed motive approach in similar cases. (See e.g., Howard, supra, 986 F.2d at p. 27 ; Gattis v. Snyder (3d Cir. 2002) 278 F.3d 222 , 233 ; Jones v. Plaster (4th Cir. 1995) 57 F.3d 417 , 420-422 ; United States v. Darden (8th Cir. 1995) 70 F.3d 1507 , 1530-1532 ; Wallace v. Morrison (11th Cir. 1996) 87 F.3d 1271 , 1274-1275.)

And, unlike the mixed motive approach, the per se approach permits a court to disregard all of the circumstances present in a particular case by focusing on a single reason for a strike even though more than one reason may have motivated a party to challenge a specific juror. ( Howard, supra, 986 F.2d at p. 26 ["A person may act for

In choosing the mixed motive approach, I am also guided by United States Supreme Court precedent. The United States Supreme Court's decision in Rice v. Collins (2006) 546 U.S. 333 , 336, 126 S.Ct. 969 , 972, 163 L.Ed.2d 824 , 830 ( Rice ) convinces me that the per se approach need not apply when evaluating dual motivation cases. In that case, the prosecutor gave several race-neutral reasons for striking a black juror including the prosecutor's effort to obtain gender balance on the jury. ( Id. at p. 340, 126 S.Ct. 969 .) On a habeas petition, the Ninth Circuit found the trial court should have questioned the prosecutor's credibility in citing other race-neutral reasons for striking the juror once the prosecutor attempted to use gender as a race-neutral reason for striking the juror in question. ( Ibid. )

After first acknowledging that discrimination in the jury selection process based on gender violates the Equal Protection Clause ( Rice, supra, 546 U.S. at p. 340, 126 S.Ct. 969 , citing J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 ), the Supreme Court nevertheless concluded that the Ninth Circuit had "assigned the gender justification more weight than it can bear." ( Rice, at pp. 340-341, 126 S.Ct. 969 .) The courted noted that, "[t]he prosecutor provided a number of other permissible and plausible race-neutral reasons, and [the defendant] provide[d] no argument why this portion of the colloquy demonstrates that a reasonable factfinder must conclude the prosecutor lied about the eye rolling and struck [the juror] based on her race." ( Id. at p. 341, 126 S.Ct. 969 .) Had the per se approach applied, the improper justification for the strike (gender neutrality) would have mandated reversal even if the other reasons given were nondiscriminatory.

While I do not imply that Rice silently adopted a mixed motive analysis, since the Supreme Court has made clear that it has not decided the issue ( Snyder v. Louisiana (2008) 552 U.S. 472 , 485, 128 S.Ct. 1203 , 170 L.Ed.2d 175 [discussing but not deciding whether mixed-motive analysis applies in Batson context] ), I merely point out that Rice implicitly shows that a per se approach is not necessarily mandated for evaluating dual motivation Batson / Wheeler challenges.

The Supreme Court's recent decision in Tharpe v. Sellers (2018) ---U.S. ----, 138 S.Ct. 545 , 199 L.Ed.2d 424 , also provides guidance here. The black defendant in Tharpe moved to reopen his federal habeas corpus proceeding regarding his claim that the Georgia jury that convicted him of murdering his black sister-in-law included a white juror who was biased

Finally, overturning a conviction by an unbiased jury simply because a prosecutor was partially motivated to strike a prospective juror for an impermissible reason when the prosecutor would have legally and justifiably stricken the juror regardless of the improper motivation not only erodes public confidence in the adjudicative process, but also threatens the finality of judgments. If a defendant has received a fair trial, there is an institutional interest in protecting the finality of the court's judgment. Theoretical imperfections ought not be treated more seriously than real deficiencies, for such skewed values would undermine confidence in the administration of justice. While I am sensitive to the appearance of perceived discriminatory bias described by the majority, I am not persuaded that a per se rule is required to