Tag Archives: Jury selection

Duty of the court, Jury trial

Case 000925

Posted on by Gary McCurdy

Error and/or relief

We agree that the trial court erred in denying the defendant’s objection under Code of Civil Procedure section 231.7 to the prosecution’s use of peremptory challenges.

First Holding:

The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish ‘a new process for identifying unlawful bias in the use of peremptory challenges during jury selection’ because studies showed that the existing Batson/Wheeler analysis was inadequate to prevent racial discrimination.

Discrimination in violation of section 231.7 need not be purposeful, but may involve unconscious bias, which includes implicit and institutional biases. Section 231.7 prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s perceived or actual race and] gender, as well as five other protected characteristics.

Once an objection to a peremptory challenge is made, the party challenging the prospective juror must state the reasons the peremptory challenge has been exercised.

Authority:

CCP 231.7

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Second Holding:

We review de novo a trial court’s determination that a peremptory challenge was valid, and the trial court’s express factual findings for substantial evidence. We do not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. If the ruling on an objection was erroneous, the statute precludes a finding of harmless error. Instead, the sole remedy is reversal.

Authority:

CCP 231.7(j) [error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial]

People v. Ortiz (2023) 96 Cal.App.5th 768, 795

Third Holding:

(Gary note: The opinion then discussed the specific reasons the juror was excused by the prosecution and the failure of the court to follow the required procedure where the reason given is one that is expressly presumed in section 231.7 to be an invalid reason. I have omitted that discussion, since it cannot provide any value as an unpublished opinion.)

Neither the showing required of the prosecution under section 231.7(e) nor the determination by the trial court required under subdivision (f) was made in this case. To the extent that the record is silent, we may not speculate about or consider other possible reasons for the challenge by the prosecution, as we are permitted to consider only the reasons given.

Moreover, we may not impute to the trial court any findings that the trial court did not expressly state on the record. Simply put, the statute does not permit a reviewing court to find compliance when no compliance is apparent in the record.

In any event, even without the statutory prohibition, there would be no reason to impute findings to the trial court in this case because the trial court expressly found, on the record, that there were no presumptively invalid reasons for exclusion of the prospective juror.

Authority:

CCP 231.7(j)

People v. Garcia (2025) 114 Cal.App.5th 1154, 1164

People v. Alston (2026) 118 Cal.App.5th 575, 587

Fourth Holding:

If another party or the trial court objects to the use of a peremptory challenge, then the party that exercised the peremptory challenge must state the reasons for the challenge; there is no requirement that the objecting party first establish a prima facie case of discrimination.

Instead, it is then up to the trial court to correctly apply the procedure set forth in section 231.7 when deciding whether to sustain the objection, and this includes determining whether the proffered reason is presumptively invalid.

Authority:

People v. SanMiguel (Jul. 30, 2026, S287786) __ Cal.5th __

People v. Aguilar (2026) 118 Cal.App.5th 1, 11

People v. Espiritu (2026) 119 Cal.App.5th 1128, 1141 [objecting party’s initial objection preserves the right to challenge the court’s failure to consider the presumptively invalid categories]

Fifth Holding:

(Gary note: This is not really a holding in the opinion. The court discusses the specific reasons relied on by the prosecution and found them in presumptive violation of Code of Civil Procedure section 231.7(e). I thought it might be useful and enlightened to include all of the section 231.7(e) statutorily presumptively invalid reasons here.)

Authority:

CCP 231.7(e):

A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case:

(1) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system.

(2) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.

(3) Having a close relationship with people who have been stopped, arrested, or convicted of a crime.

(4) A prospective juror’s neighborhood.

(5) Having a child outside of marriage.

(6) Receiving state benefits.

(7) Not being a native English speaker.

(8) The ability to speak another language.

(9) Dress, attire, or personal appearance.

(10) Employment in a field that is disproportionately occupied by members listed in subdivision (a) or that serves a population disproportionately comprised of members of a group or groups listed in subdivision (a).

(11) Lack of employment or underemployment of the prospective juror or prospective juror’s family member.

(12) A prospective juror’s apparent friendliness with another prospective juror of the same group as listed in subdivision (a).

(13) Any justification that is similarly applicable to a questioned prospective juror or jurors, who are not members of the same cognizable group as the challenged prospective juror, but were not the subject of a peremptory challenge by that party. The unchallenged prospective juror or jurors need not share any other characteristics with the challenged prospective juror for peremptory challenge relying on this justification to be considered presumptively invalid.

Duty of the court, Jury trial, Standard of review

Case 000874

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s objection under Code of Civil Procedure section 231.7 to the prosecutor’s exercise of a peremptory challenge during voir dire.

First Holding:

Section 231.7(a), prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.

The statute specifies the process that must be followed if a party or the trial court objects to the use of a peremptory challenge. Two different subdivisions of the statute provide lists of presumptively invalid reasons for exercising a peremptory challenge and specify the processes that must be followed if such reasons are asserted in a section 231.7 scenario.

Relevant here, subdivision (g) lists three categories of presumptively invalid reasons that have historically been associated with improper discrimination in jury selection. Those reasons are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or those of counsel for the objecting party.

Authority:

CCP 231.7

Second Holding:

On appeal, we review the overruling of a section 231.7 objection de novo, with the trial court’s express factual findings reviewed for substantial evidence. We may only consider those reasons given by the party exercising the peremptory challenge and those factual findings expressly made by the trial court. If we conclude the trial court erred by overruling an objection, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Third Holding:

An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.

But that rule is not automatic. Further, courts have recognized there are circumstances in which it should not apply. Among those circumstances are when its application would be incompatible with the fundamental purposes of a statutory scheme.

Authority:

People v. Saunders (1993) 5 Cal.4th 580, 589–590

In re L.C. (2023) 90 Cal.App.5th 728, 738,

In re S.B. (2004) 32 Cal.4th 1287, 1293

In re Sheena K. (2007) 40 Cal.4th 875, 889 [pure question of law]

In re Frank R. (2011) 192 Cal.App.4th 532, 539 [conflict with due process]

Fourth Holding:

As explained in Espiritu, the Legislature enacted section 231.7 in response to shortcomings of the inquiry under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258, overruled in part in Johnson v. California (2005) 545 U.S. 162.

Whereas Batson/Wheeler targets purposeful discrimination only, section 231.7 aims to eliminate purposeful and unconscious bias. And, whereas Batson/Wheeler employs a largely deferential burden shifting evaluation which places the ultimate burden of persuasion on the objecting party, section 231.7 sets forth a comprehensive process that expressly imposes virtually all burdens on the party exercising the peremptory challenge or the trial court.

Authority:

CCP 231.7

People v. Espiritu (2026) 119 Cal.App.5th 1128, 1139

People v. Lenix (2008) 44 Cal.4th 602

People v. Lomax (2010) 49 Cal.4th 530, 569

Fifth Holding:

Although not expressly stated in the statute, it logically flows from the legislative purpose and established scheme that the first required step in such an evaluation is to consider whether any of the reasons fall into a presumptively invalid category listed in subdivision (e) or subdivision (g).

Stated differently, the presumptively invalid categories embody circumstances in which the Legislature has declared the court must presume an objectively reasonable person would view membership or perceived membership in a listed group as a factor in the use of the peremptory challenge, unless the party exercising the challenge overcomes the presumption in the statutorily specified manner.

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 893 [after party objects under sec. 237.1, it is trial court’s responsibility to apply correct procedure to decide whether to sustain objection]

Sixth Holding:

(Gary note: The opinion then sets forth the specifics of the questions and answers and exercise of the peremptory challenge. Those details are unnecessary in this type of summary that focuses on the principles relied on rather than specific application, so I have chosen to omit them. Having found error in overruling the defense objection to the exercise, the court reversed and remanded for a new trial. Erroneously overruled objections under section 231.7 are not subject to harmless error analysis.)

Authority:

People v. Aguilar (2026) 118 Cal.App.5th 1, 10

Jury trial, Standard of review

Case 000754

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously overruled the defendant’s objection to the prosecutor’s use of a peremptory challenge against a Black prospective juror because the main reason given by the prosecutor for exercising the challenge was presumptively invalid under Code of Civil Procedure section 231.7. The record did not contain clear and convincing evidence rebutting the presumptive invalidity of the challenge.

First Holding:

Code of Civil Procedure section 231.7 prohibits the use of a peremptory challenge on the basis of a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups. The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish a new process for identifying unlawful bias in the use of peremptory challenges during jury selection because studies showed that the existing Batson/Wheeler analysis was inadequate to prevent racial discrimination.

Authority:

CCP 231.7

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

Second Holding:

Upon objection to the exercise of a peremptory challenge pursuant to CCP 231.7, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised. The trial court must then evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances, considering only the reasons actually given.

If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. For purposes of section 231.7, an objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California.

Authority:

CCP 231.7

Third Holding:

Section 231.7 also contains two separate provisions describing presumptively invalid reasons for the exercise of a peremptory challenge. Each subdivision sets out a distinct process by which a court determines whether a presumptively invalid reason can be absolved of that presumption.

The challenge of a prospective juror who expresses a distrust of or having a negative experience with law enforcement or the criminal legal system is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case

Authority:

CCP 231.7(e) and (g)

People v. Alston (2026) 118 Cal.App.5th 575, 581

Fourth Holding:

The denial of an objection made under CCP section 231.7 shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record.

The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, the error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Fifth Holding:

The defendant did not forfeit review of this issue, because his attorney’s general objection to the exercise of the peremptory challenge was sufficient to preserve the issue in this case.

Authority:

People v. Jaime (2023) 91 Cal.App.5th 941, 946 [forfeiture rule applies to section 231.7 claims]

People v. Espiritu (2026) 119 Cal.App.5th 1128 [The court was not confronted with a situation in which a defendant wholly failed to object “under the applicable statute. Rather, the defendant’s general objection was sufficient to preserve an argument alleging error based on a category of presumptively invalid reasons not brought to the trial court’s attention by defense counsel.]

Sixth Holding:

An objection to a peremptory challenge must be sustained whenever any reason identified for the challenge becomes conclusively invalid under section 231.7(g), regardless of whether the party exercising the peremptory challenge also identifies facially neutral reasons that do not fall within the scope of subdivision (g). Under the circumstances in this case, the defendant’s objection to the peremptory challenge was erroneously overruled, and prejudicially so. We reverse the judgment and remand for a new trial.

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 896

Jury trial

Case 000551

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by overruling his Code of Civil Procedure section 231.7 objection to the prosecutor’s use of a peremptory challenge against a prospective juror who disclosed a negative experience with law enforcement.

First Holding:

Prior to January 1, 2022, trial courts examined peremptory challenges under the three-step inquiry established by Batson and Wheeler. Recognizing the limitations of the Batson/Wheeler inquiry, the Legislature enacted AB 3070 (2019–2020 Reg. Sess.) to add Code of Civil Procedure section 231.7, which creates new procedures for identifying unlawful discrimination in the use of peremptory challenges. Section 231.7(a) prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.

The statute is designed to address both purposeful discrimination and implicit unconscious bias in the jury selection process, and the Legislature has instructed that it is to be broadly construed to eliminate both forms of discrimination and the use of group stereotypes and discrimination, whether based on conscious or unconscious bias in the exercise of peremptory challenges.

Authority:

CCP 231.7

Batson v. Kentucky (1986) 476 U.S. 79,

People v. Wheeler (1978) 22 Cal.3d 258,

People v. Jaime (2023) 91 Cal.App.5th 941, 943,

People v. Ortiz (2023) 96 Cal.App.5th 768, 791-792

Second Holding:

A party or the trial court on its own motion may object that a party’s use of a peremptory challenge violates section 231.7(a). The statute does not require any threshold showing by the objecting party. The party seeking to challenge the prospective juror must then state the reasons the peremptory challenge has been exercised. It is then up to the trial court to correctly apply the procedure set forth in section 231.7 when deciding whether to sustain the objection.

The trial court must evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances, considering only the reasons actually given and not any other possible justifications. If the court finds a substantial likelihood that an objectively reasonable person would view race, ethnicity, or another prohibited characteristic as a factor in the use of the peremptory challenge, then the objection shall be sustained. A substantial likelihood means more than a mere possibility but less than a standard of more likely than not. The court must explain the reasons for its ruling on the record.

Authority:

CCP 231.7

People v. Ortiz (2023) 96 Cal.App.5th 768, 792

People v. Aguilar (2026) 118 Cal.App.5th 1, 8–9

Third Holding:

Section 231.7(e) lists 13 reasons that are presumed to be invalid when offered as justifications for a peremptory challenge, including expressing a distrust of or having a negative experience with law enforcement or the criminal legal system. A party that relies on one of those presumptively invalid reasons must show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race or other prohibited factor, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case.

For purposes of overcoming this presumption of invalidity, clear and convincing evidence exists when the court determines it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on the juror’s ability to be fair and impartial in the case.

Authority:

CCP 231.7

People v. Gonzalez (2024) 104 Cal.App.5th 1, 14

Fourth Holding:

Section 231.7(g) lists an additional set of three presumptively invalid reasons for exercising a peremptory challenge, all of which relate to a prospective juror’s demeanor, behavior, or manner. These reasons are: The prospective juror was inattentive, or staring or failing to make eye contact; the prospective juror exhibited either a lack of rapport or problematic attitude, body language, or demeanor; and the prospective juror provided unintelligent or confused answers.

These three reasons are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or the observations of counsel for the objecting party. Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried.

Authority:

CCP 231.7

Fifth Holding:

We review the trial court’s denial of an objection under section 231.7 de novo, with the trial court’s express factual findings reviewed for substantial evidence. The reviewing court shall not impute any findings to the trial court that the court did not expressly state on the record. The appellate court is to consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain the party’s use of the peremptory challenge. Section 231.7 precludes a finding of harmless error. If the appellate court concludes that the trial court erred by overruling an objection under the statute, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7

People v. Ortiz (2023) 96 Cal.App.5th 768, 795

Sixth Holding:

Section 231.7(e) prescribes how the court must analyze this issue and requires clear and convincing evidence.

Authority:

CCP 231.7

People v. Alston (2026) 118 Cal.App.5th 575, 587

Duty of the court, Jury trial

Case: 000405

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in discharging one of only two Black prospective jurors, over defense counsel’s objection, where the prosecutor cited the juror’s multiple family members with criminal records as a basis for the use of peremptory challenge, in violation of Code of Civil Procedure section 231.7. We reverse and remand the matter for a new trial.

First Holding:

Our standard of review for section 231.7 claims is defined by statute as follows: The denial of an objection made under this section shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under [231.7(c)] and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.”

Authority:

CCP 231.7(j)

Second Holding:

The exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws under the Fourteenth Amendment to the federal Constitution, as well as a defendant’s right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution.

Authority:

People v. Gutierrez (2017) 2 Cal.5th 1150, 1157

Third Holding:

Section 231.7(a) prohibits the use of a peremptory challenge to remove a prospective juror on the basis of their race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups. It sets up a strict procedure for determining whether a peremptory challenge of a jury should be allowed. It lists several nonexclusive factors the court may consider when evaluating the totality, including whether the objecting party is a member of the same perceived cognizable group as the challenged juror. But it also goes on to list circumstances where a peremptory challenge is presumed invalid absent some further showing by the proponent by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s defined protected status.

Authority:

CCP 231.7

Fourth Holding:

To allow a party to bury presumptively invalid reasons under an overarching facially neutral reason without the required findings under section 231.7(f), would render section 231.7(e) ineffective.

Authority:

People v. Uriostegui (2024) 101 Cal.App.5th 271, 280

Jury trial, Standard of review

Case: 000355

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it overruled defendant’s objection to the prosecutor’s use of a peremptory challenge to excuse a prospective Hispanic juror who reported negative experiences with law enforcement and the criminal justice system, where the prosecutor did not overcome the presumptive invalidity of the challenge by clear and convincing evidence.

First Holding:

Intentional discrimination is not the correct standard for determining whether the exercise of a peremptory challenge was improper. The court did not first require the prosecutor to overcome the presumptive invalidity of the challenge under the more demanding standard set forth in Code of Civil Procedure section 231.7(e). We may not impute to the trial court findings it did not make, but in this case, the record is devoid of any evidence that the prospective juror’s negative experiences with law enforcement and the criminal justice system bore on his inability to be fair and impartial. Under these circumstances, the prosecutor did not overcome the presumptive invalidity of the peremptory challenge, the trial court erred in overruling defendant’s objection, and section 231.7 compels reversal of the judgment and remand for a new trial.

Authority:

CCP 231.7(e) and (j)

People v. Guzman (2025) 115 Cal.App.5th 464, 475

People v. Jimenez (2024) 99 Cal.App.5th 534, 540

Second Holding:

Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.

Authority:

People v. Parker (2017) 2 Cal.5th 1184, 1210–1211

People v. Lenix (2008) 44 Cal.4th 602, 612

Third Holding:

The Fourteenth Amendment’s mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system. This is so because it is not only litigants who are harmed when the right to trial by impartial jury is abridged. Taints of discriminatory bias in jury selection—actual or perceived—erode confidence in the adjudicative process, undermining the public’s trust in courts.

Authority:

Powers v. Ohio (1991) 499 U.S. 400, 412, 415

People v. Gutierrez (2017) 2 Cal.5th 1150, 1154

Miller-El v. Dretke (2005) 545 U.S. 231, 238

Fourth Holding:

Under the Batson/Wheeler test, the ultimate question for the trial court in ruling on an objection to a peremptory challenge is whether the party exercising the objection engaged in ‘purposeful discrimination. Recognizing the limitations of the Batson/Wheeler inquiry, the Legislature enacted AB 3070 (2019–2020 Reg. Sess.) to add Code of Civil Procedure section 231.7, which creates new procedures for identifying unlawful discrimination in the use of peremptory challenges. The Legislature intended that the new law be broadly construed to further the purpose of eliminating the use of group stereotypes and discrimination, whether based on conscious or unconscious bias, in the exercise of peremptory challenges.

Authority:

CCP 231.7

People v. Guzman (2025) 115 Cal.App.5th 464, 475

People v. Jaime (2023) 91 Cal.App.5th 941, 943

People v. Ortiz (2023) 96 Cal.App.5th 768, 791–792

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

Fifth Holding:

Section 231.7 prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups. If a party or the trial court objects to the use of a peremptory challenge, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised.

If the reason for the exercise of the peremptory challenge is not presumptively invalid under section 231.7(e) or (g) (which set forth specific reasons that are presumptively invalid), the reason is to be evaluated in light of the totality of the circumstances to determine if there is a substantial likelihood that an objectively reasonable person, who is aware that unconscious bias and purposeful discrimination have resulted in the unfair exclusion of potential jurors in California, would view membership or perceived membership in any of the protected groups as a factor in the use of the peremptory challenge. The court need not find purposeful discrimination to sustain the objection.

Authority:

CCP 231.7

People v. Barnes (2024) 107 Cal.App.5th 560, 577–578

Sixth Holding:

The trial court’s denial of an objection under section 231.7 is reviewed de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Abstracts and Minutes, Due process, Equal protection, Jury trial, Racial Justice Act, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case: 000262

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by permitting the prosecution’s peremptory challenge to a juror, within the meaning of Code of Civil Procedure section 231.7 (CCP 231.7), which requires reversal. The court also erred in denying the defendant’s motion for discovery under the Racial Justice Act (RJA) to support his claim that racial bias infected his case. We conclude the trial court misapplied the applicable legal standards. We conclude that the trial court erroneously applied the law in denying the defendant’s motion for discovery. The defendant also contends that the abstract of judgment should be corrected because it does not reflect the trial court’s ruling regarding his fees and fines. Because we reverse the conviction, we need not reach this issue.

First Holding:

Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. Excluding by peremptory challenge even a single juror on the basis of race or ethnicity is an error of constitutional magnitude.

Authority:

People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 759–760

People v. Gutierrez (2017) 2 Cal.5th 1150, 1157

Second Holding:

After studies showed that the existing analysis under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 was inadequate to prevent racial discrimination, the Legislature enacted CCP 231.7, effective in criminal trials beginning January 1, 2022, to establish a new process for identifying unlawful bias in the use of peremptory challenges during jury selection.

Authority:

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Third Holding:

In contrast to the three-step Batson/Wheeler procedure, under CCP 231.7, there is no requirement that the objecting party first make a showing of purposeful discrimination. Rather, upon objection, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised. The trial court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. In doing so, the court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge.

Authority:

CCP 231.7

People v. Jaime (2023) 91 Cal.App.5th 941, 943

People v. Hinojos (2025) 110 Cal.App.5th 524, 540–541

Fourth Holding:

Unlike in the Batson/Wheeler analysis, the ultimate question for the trial court is not whether the party exercising the peremptory challenge engaged in purposeful discrimination. The statute expressly recognizes that discrimination in violation of this section need not be purposeful, but may involve unconscious bias, which includes implicit and institutional biases. The trial court shall sustain the objection to the use of the peremptory challenge if the court determines there is a substantial likelihood that an objectively reasonable person [aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California], would view race as a factor in the use of the peremptory challenge. The statute defines “substantial likelihood” as more than a mere possibility but less than a standard of more likely than not.

Authority:

CCP 231.7

People v. Hinojos (2025) 110 Cal.App.5th 524, 541

Fifth Holding:

CCP 231.7, subdivisions (e) and (g) provide two separate lists of presumptively invalid reasons for exercising a peremptory challenge. Each of these subdivisions sets out a distinct process by which a court determines whether a presumptively invalid reason can be absolved of that presumption.

Authority:

CCP 231.7(e),(g)

People v. Ortiz (2023) 96 Cal.App.5th 768, 793

Sixth Holding:

The denial of an objection shall be reviewed de novo, with the trial court’s express factual findings reviewed for substantial evidence. Erroneous denial of a challenge is deemed prejudicial and requires reversal of the judgment and remand for a new trial.

Authority:

CCP 231.7

Seventh Holding:

We review the factual underpinnings of a discovery order for substantial evidence, but where such a determination rests on incorrect legal premises, our review is de novo.

Authority:

Young v. Superior Court of Solano County (2022) 79 Cal.App.5th 138, 156

Gonzales v. Superior Court (2024) 108 Cal.App.5th pp. Supp. 36, 55

Eighth Holding:

Penal Code section 745 authorizes a defendant to file a discovery motion at trial as soon as practicable upon the defendant learning of an alleged violation, and requires the trial court to hold an evidentiary hearing if the defendant makes a prima facie showing of the violation.

Authority:

PEN 745

Ninth Holding:

To establish good cause for discovery under the RJA, a defendant is required to advance a plausible factual foundation, based on specific facts, that a violation of the RJA could or might have occurred in his case. This is a notably less demanding standard than the prima facie requirement set forth in the statute for granting an evidentiary hearing, and a standard that should not be difficult to meet.

Authority:

Young v. Superior Court of Solano County (2022) 79 Cal.App.5th 138, 159

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 244 [trial court should consider the relevance of the proffered facts to the claims of racial bias to determine whether a minimally plausible basis exists to grant discovery—a low threshold]

Gonzales v. Superior Court (2024) 108 Cal.App.5th pp. Supp. 36, 44 [reversing denial of discovery motion where defendant had minimally proffered a plausible factual foundation for a potential violation of the RJA]

Tenth Holding:

[Gary note: The abstract of judgment apparently did not reflect the court’s order regarding fines and fees. The opinion gave no further information, because the issue would be addressed on remand for other reasons. But the law is clear that the court could have ordered correction of the abstract of judgment and minute orders. I have set forth some cases it could have relied on had it addressed the issue.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Appellate Principles, Jury trial

Case: 000118

Posted on by Gary McCurdy

Error and/or relief

The judgment must be reversed because the trial court deprived the defendant of his statutory rights under Code of Civil Procedure section 231.7 when it failed to sustain defense counsel’s objections to the prosecutor’s use of peremptory challenges to two prospective jurors. We reverse the judgment and remand the matter for a new trial.

First Holding:

At its core, Code of Civil Procedure section 231.7 precludes either party from using a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.

Once the objection is made, the trial court must evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. It must consider only the reasons actually given and not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge. If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained.

The court need not find purposeful discrimination to sustain the objection. The court shall explain the reasons for its ruling on the record.

Authority:

CCP 231.7(d)(1)

Second Holding:

The statute acknowledges that unconscious bias, in addition to purposeful discrimination, has resulted in the unfair exclusion of potential jurors in the State of California. It defines ‘unconscious bias’ to include both implicit and institutional biases.

Authority:

CCP 231.7(d)(2)(C)

Third Holding:

A peremptory challenge for any of certain enumerated reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case.

Authority:

CCP 231.7(e)

Fourth Holding:

The term “clear and convincing” refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror’s cognizable group membership, bearing in mind conscious and unconscious bias. To determine that a presumption of invalidity has been overcome, the factfinder shall determine that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case.

Authority:

CCP 231.7(f)

Fifth Holding:

Section 231.7(g) provides a list of reasons for peremptory challenges that have historically been associated with improper discrimination.

Authority:

CCP 231.7(g)(1)(A) and (B)

Sixth Holding:

he denial of an objection made under section 231.7 shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence.

The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court.

Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Seventh Holding:

[GARY NOTE: The opinion examined the details of the voir dire and procedures followed, and cited several published opinions as examples of resolutions of the problem. Rather than write a full tome, I have chosen simply to list the published cases, which you may want to read if you have a similar issue in your case(s).]

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 892 [the role of the two-step procedure set forth in section 231.7, subdivision (g)(2) is to determine whether the presumption of invalidity has been rebutted]

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 243 [discussing racial disparities in charging decisions]

People v. Aranda (2012) 55 Cal.4th 342, 364 [the high court has identified as structural error constitutional violations such as racial discrimination in jury selection]

People v. Cahill (1993) 5 Cal.4th 478 [certain structural errors require reversal notwithstanding the strength of evidence in a particular case]

Eighth Holding:

[GARY NOTE: Amicus curiae filed a brief that, in essence, challenged the legality of section 231.7, an issue not raised by either party in the appeal.] The second issue regarding the Legislature’s ability to require reversal was not raised by either party, either before the trial court or in this appeal. Amicus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curie will not be considered.

Authority:

People v. Hannon (2016) 5 Cal.App.5th 94, 105

Amelioration, Elements of crime, Evidence, Jury trial, Racial Justice Act, Statutory interpretation, Sufficiency of and substantial evidence

Case 000081

Posted on by Gary McCurdy

Error and/or relief

[Gary note: Grabba cuppa. This case rivaled Fort Knox for gold.]

We agree with the parties that the gang offense must be reversed and the gang-related allegations must be vacated, and that the sentences on several witness dissuasion counts may be readdressed upon remand. We further agree with the defendant that the prosecution should not have been permitted to play and introduce two rap music videos under Evidence Code section 352, although we conclude that the error was harmless given our reversal of the gang offense and the vacation of the gang-related allegations. In addition, we find that the defendant has established a prima facie case that the prosecution violated the California Racial Justice Act by playing and using the rap music videos at trial, and we remand this matter to the trial court to conduct a hearing to determine if a violation of the California Racial Justice Act has been proven by a preponderance of the evidence.

First Holding:

AB 333 made the following changes: First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206

Third Holding:

AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206

Fourth Holding:

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206

Fifth Holding:

We determine whether substantial evidence supports a jury’s finding by inquiring whether evidence was presented from which a reasonable trier of fact could conclude, beyond a reasonable doubt, that the prosecution sustained its burden of proof. Although we assess whether the evidence is inherently credible and of solid value, we must also view the evidence in the light most favorable to the jury verdict and presume the existence of every fact that the jury could reasonably have deduced from that evidence.

Authority:

People v. Mora and Rangel (2018) 5 Cal.5th 442, 488

Sixth Holding:

Speculative testimony by a gang expert does not constitute substantial evidence to support a gang enhancement.

Authority:

People v. Soriano (2021) 65 Cal.App.5th 278, 288

People v. Renteria (2022) 13 Cal.5th 951, 964 [Where there is no proof the defendant acted in association with or at the direction of the gang, the prosecution cannot rely on the joint nature of the offense to establish either the requisite benefit to the gang or the specific intent to promote the criminal activity of gang members]

Seventh Holding:

We also will vacate the gang-related firearm allegations under section 12022.53(b) and (e)(1).

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 746 [reversing affirmance of firearm enhancement because the firearm enhancement alleged under section 12022.53(e)(1) is contingent on a true finding on the gang enhancement under section 186.22]

People v. Campbell (2023) 98 Cal.App.5th 350, 376 [the amendments AB 333 made apply retroactively to the gang-related gun use enhancement under section 12022.53(e)]

Eighth Holding:

Because we conclude that substantial evidence does not support the conviction on the gang offense and the true findings on the gang-related allegations under the law at the time of the defendant’s trial, the defendant may not be retried concerning these matters.

Authority:

United States v. DiFrancesco (1980) 449 U.S. 117, 131

Ninth Holding:

The California Supreme Court recently held that Evidence Code section 352.2 [rap video evidence] does not apply retroactively to cases not yet final on appeal. Evidence Code section 352.2 has at best an attenuated and inconsistent connection to reduced punishment and there is good reason why the Legislature might not have intended for its approach toward the admissibility of creative expressions to apply retroactively, and thus the inference of retroactive application does not attach to the statute. However, the court noted that Evidence Code section 352.2, by providing additional direction for evaluating the admissibility of creative expressions, sets forth several factors that trial courts already might have folded into an evaluation of whether this type of material was admissible under Evidence Code sections 352 and 1101.

Authority:

People v. Aguirre (2025) 18 Cal.5th 629, 692, 693

Tenth Holding:

While the Supreme Court’s decision in Aguirre dictates that Evidence Code section 352.2 does not apply retroactively to the defendant’s case, we conclude that the trial court abused its discretion under Evidence Code section 352 by permitting the prosecutor to play the videos in his opening statement and by admitting evidence of the videos. A Racial Justice Act [RJA] violation occurs when an attorney in the case exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, among other circumstances. A central premise of the RJA is that bias can be unconscious and implied as well as conscious and express.

Authority:

PEN 745

Bonds v. Superior Court (2024) 99 Cal.App.5th 821, 824

Eleventh Holding:

To forestall the defendant’s claim of ineffective assistance of counsel, we exercise our discretion to reach the merits of his’s RJA claim. This approach is particularly appropriate here, where we can discern no rational tactical reason for the defendant’s counsel not raising the RJA issue when counsel already filed a motion for a new trial concerning the playing and use of the rap music videos.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [reviewing court may reach forfeited claim where ineffective assistance of counsel claimed]

People v. Quintero (2024) 107 Cal.App.5th 1060, 1074 [addressing merits of forfeited RJA claim because defendant alleged he received ineffective assistance of counsel by failing to object]

Twelfth Holding:

The fact that the prosecutor did not utter the words in the video does not foreclose an RJA claim. The RJA expressly includes in its description of qualifying acts an attorney using racially discriminatory language, but it also includes an attorney otherwise exhibiting bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.

Authority:

PEN 745(a)(2)

Thirteenth Holding:

The RJA does not define racial bias or animus, but it specifies that the moving party is not required to prove intentional discrimination. Indeed, the statement of Legislative intent behind the RJA’s enactment states that the act was aimed at addressing the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials. Based on the lack of probative value the videos had, the danger of racial bias that the “A Day in the Life” video particularly presented, and the manner in which the prosecutor used the videos at trial, we conclude that the defendant has satisfied his initial minimal burden to produce facts that, if true, establish that there is more than a mere possibility of an RJA violation.

Authority:

PEN 745(c)(2)

People v. Howard (2024) 104 Cal.App.5th 625, 656

Fourteenth Holding:

Challenges for cause are constitutionally guaranteed under the Sixth Amendment. Our state Constitution provides the same general right to a fair trial and an impartial jury. In California, criminal defendants are allowed an unlimited number of challenges to prospective jurors for cause, which the defendants must use before exercising any peremptory challenges.

Authority:

People v. Black (2014) 58 Cal.4th 912, 916

Fifteenth Holding:

On forfeiture of jury challenge because defendant still had peremptory challenges available, the defense was afforded 30 total peremptory challenges, with 20 of the challenges being joint challenges and the remaining 10 split between the two defendants. The defense had peremptory challenges available when it accepted the jury as seated. The California Supreme Court has repeatedly rejected requests to abandon the forfeiture rule concerning denials of juror challenges for cause in analogous situations where the three requirements to preserve the issue for appeal were not met.

Authority:

People v. Suarez (2020) 10 Cal.5th 116, 143

People v. Winbush (2017) 2 Cal.5th 402, 425-426

People v. Rangel (2016) 62 Cal.4th 1192, 1209-1210

People v. Manibusan (2013) 58 Cal.4th 40, 61

People v. Jones (2012) 54 Cal.4th 1, 45-46

People v. Mills (2010) 48 Cal.4th 158, 186

People v. Carasi (2008) 44 Cal.4th 1263, 1290

Sixteenth Holding:

Evidence is substantially more prejudicial than probative if, broadly stated, it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. In applying this statute we evaluate the risk of undue prejudice, that is, evidence that uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues, not the prejudice that naturally flows from relevant, highly probative evidence.

Authority:

People v. Waidla (2000) 22 Cal.4th 690, 724

People v. Salcido (2008) 44 Cal.4th 93, 148

Seventeenth Holding:

A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.

Authority:

People v. Lewis (2001) 26 Cal.4th 334, 372-373

People v. Rodrigues (1994) 8 Cal.4th 1060, 1124

Eighteenth Holding:

The weighing process under Evidence Code section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. The record must affirmatively show that the trial judge did in fact weigh prejudice against probative value, but no more is required. We review the trial court’s exercise of discretion in admitting evidence under Evidence Code section 352 for abuse and will not disturb the court’s ruling except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.

Authority:

People v. Megown (2018) 28 Cal.App.5th 157, 164

Nineteenth Holding:

A trial court’s admission of evidence, including gang testimony, is reviewed for abuse of discretion.

Authority:

People v. Coneal (2019) 41 Cal.App.5th 951, 964

Twentieth Holding:

When evaluating the admission of rap music, courts have recognized it has minimal probative value to the extent that it depends on construing the lyrics as literal statements of fact or intent without a persuasive basis to do so. We have also held that the relevance of rap lyrics is further diminished when they lack foundation. These foundational components include whether the defendant authored the lyrics. Thus, absent some meaningful method to determine which lyrics represent real versus made up events, or some persuasive basis to construe specific lyrics literally, the probative value of lyrics as evidence of their literal truth is minimal.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 477, 478

Twenty-first Holding:

We do not mean to suggest that lyrics are never probative of their literal truth. For example, where lyrics are written within a reasonable period of time before or after the charged crime and bear a sufficient level of similarity to the charged crime, their probative value as a statement of fact is increased. It may also be that lyrics with sufficient corroboration from other evidence will have increased probative value. However, corroborating evidence may also render the lyrics cumulative.

Authority:

People v. Coneal (2019) 41 Cal.App.5th 951, 96

Twenty-second Holding:

Section 29800(a)(1) states that any person who has been convicted of a felony, who has been convicted of an enumerated offense, or who is addicted to the use of any narcotic drug and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony. As relevant here: This offense has three elements: (1) the defendant possessed a firearm, (2) the defendant knew that he possessed the firearm, and (3) the defendant had previously been convicted of a felony.

Authority:

People v. Clark (2021) 62 Cal.App.5th 939, 958

Twenty-third Holding:

Where a defendant will stipulate to ex-felon status, evidence of the nature of his prior convictions still may and should be withheld from the jury, since such evidence is irrelevant to the ex-felon issue. Thus, to prove the third element of a violation of section 29800(a)(1), one of two alternatives may be used: (1) The prosecution can prove the conviction in open court, and that proof can include both the fact that the defendant has previously been convicted of a felony offense as well as the nature of the felony involved; or (2) the defendant can stipulate to having a felony conviction and thereby keep from the jury the nature of the particular felony. When the defendant stipulates to a prior conviction, “the court ‘sanitizes’ the prior by telling the jury that the defendant has a prior felony conviction, without specifying the nature of the felony committed.

Authority:

People v. Valentine (1986) 42 Cal.3d 170, 173

People v. Sapp (2003) 31 Cal.4th 240, 261, 262