People v. Stancil CA1/2
CourtCalifornia Court of Appeal
Date FiledOctober 21, 2026
DocketA170563
StatusUnpublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
Filed 10/21/26 P. v. Stancil CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, A170563
v. (Alameda County Super. Ct.
AVERY STANCIL, No. 23CR001173)
Defendant and Appellant.
A jury found defendant Avery Stancil guilty of intercourse or sodomy
with a child 10 years of age or younger. On appeal, Stancil contends that: (1)
the trial court erroneously denied his objection to the prosecutor’s peremptory
challenge of a Black prospective alternate juror; (2) the trial court erred when
it found a witness unavailable and permitted her preliminary hearing
testimony to be read into the record; and (3) the trial court erred when it
refused to qualify a defense witness as an expert so he could tell the jury
about studies he had read on plea bargaining. We affirm.
BACKGROUND
In February 2023, Stancil was charged by information with intercourse
or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd.
(a)).
1
Stancil was tried before a jury. The victim, Jane Doe, testified, and the
trial court permitted counsel to read the preliminary hearing testimony of
Anne Doe, the victim in a prior case in which Stancil had pleaded no contest
to sexual battery. Stancil testified in his defense. Stancil denied that he
committed the charged crime and denied he committed the crime against
Anne Doe that he entered the plea to.
The jury found Stancil guilty. Stancil was sentenced to 50 years to life
in prison.
DISCUSSION
A. Peremptory Challenge
1. Introduction
In 2020, the Legislature enacted Code of Civil Procedure1 section 231.7
in response to concerns about whether the Batson/Wheeler framework2 was
adequate to identify and curb improper discrimination. (People v. SanMiguel
(2026) 20 Cal.5th 254, 268, 271 (SanMiguel).) Under section 231.7, if another
party or the trial court objects to the use of a peremptory challenge, then “the
party exercising the peremptory challenge shall state the reasons the
peremptory challenge has been exercised.” (§ 231.7, subds. (b)–(c).) The trial
court must “evaluate the reasons given . . . in light of the totality of the
circumstances” and “explain the reasons for its ruling on the record” (§ 231.7,
subd. (d)(1)), and “[a]ppellate courts . . . must give scrupulous consideration
to the records before them to determine whether, considering all relevant
1 Undesignated statutory references are to the Code of Civil Procedure.
2 This refers to the procedural framework for determining whether a
litigant’s decision to peremptorily challenge a prospective juror was
motivated by improper bias set forth in People v. Wheeler (1978) 22 Cal.3d
258, and Batson v. Kentucky (1986) 476 U.S. 79.
2
circumstances, the proceedings failed to satisfy the principle of equal
treatment embodied in section 231.7.” (SanMiguel, supra, 20 Cal.5th at p.
291.)
This case involves a Black defendant, a Black victim, another Black
victim in a prior case, other Black witnesses, and a Black prospective
alternate juror. The prospective jurors filled out lengthy questionnaires, and,
on the third day of voir dire, 12 jurors were selected. During the selection of
alternate jurors, the prosecutor used a peremptory challenge on Ms. Wilson-
Rosa, a 66-year-old woman who identified as African American, and defense
counsel objected that the peremptory challenge violated section 231.7. The
prosecutor stated his reasons, including his “largest concern,” which was that
Ms. Wilson-Rosa “was the only [prospective juror] who did not understand
why a prior allegation or conviction for sexual assault would be relevant in a
case involving sexual assault particularly on a child.”3 The trial court
considered the “totality of all of the circumstances” and found that Ms.
Wilson-Rosa was not peremptorily challenged for an improper reason. After
“scrupulous consideration” of the records before us and all relevant
circumstances, we affirm the trial court’s overruling of the objection.
(SanMiguel, supra, 20 Cal.5th at pp. 290-291.)
2. Applicable Law and Standard of Review
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.” (§ 231.7, subd. (a).) The question is whether “there is a
3 We have omitted capitalization from our quotations of the transcript.
3
substantial likelihood that an objectively reasonable person would view race
[or other protected status] . . . as a factor in the use of the peremptory
challenge.” (§ 231.7, subd. (d)(1).)4 If so, the trial court must sustain the
objection. (§ 231.7, subd. (d)(1).)5
Section 231.7, subdivision (d)(3), lists some of the circumstances that
the trial court may consider in making its determination.6
Section 231.7 “sets out two categories of reasons that . . . are treated as
presumptively invalid unless certain conditions are met.” (SanMiguel, supra,
20 Cal.5th at p. 273.) The first category includes “[a]ny 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,
4 An “objectively reasonable person” is one who is “aware that
unconscious bias, in addition to purposeful discrimination, have resulted in
the unfair exclusion of potential jurors in the State of California.” (§ 231.7,
subd. (d)(2)(A).)
5 In ruling on the objection, the trial court may “not speculate on, or
assume the existence of, other possible justifications for the use of the
peremptory challenge.” (§ 231.7, subd. (d)(1).)
6 These include whether the “objecting party is a member of the same
perceived cognizable group as the challenged juror” (§ 231.7, subd.
(d)(3)(A)(i)); whether the “alleged victim is not a member of that perceived
cognizable group” (§ 231.7, subd. (d)(3)(A)(ii)); whether “[w]itnesses . . . are
not members of that perceived cognizable group” (§ 231.7, subd. (d)(3)(A)(iii));
“whether the party exercising the peremptory challenge failed to question the
prospective juror about the concerns later stated by the party as the reason
for the peremptory challenge” (§ 231.7, subd. (d)(3)(C)(i)); whether “the party
exercising the peremptory challenge engaged in cursory questioning of the
challenged potential juror” (§ 231.7, subd. (d)(3)(C)(ii)); and whether “the
reason given by the party exercising the peremptory challenge was contrary
to or unsupported by the record” (§ 231.7, subd. (d)(3)(F)).
4
but were not the subject of a peremptory challenge by that party.” (§ 231.7,
subd. (e)(13).)7
The second category includes reasons that have “historically been
associated with improper discrimination in jury selection,” including “a lack
of rapport or problematic attitude, body language, or demeanor.” (§ 231.7,
subd. (g)(1)(B).) Subdivision (g)(2) provides that such 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.” (§ 231.7, subd. (g)(2).)
“While reliance on an invalid reason is generally a significant
consideration—and, depending on the circumstances, may prove dispositive—
a court still must consider any other reasons proffered and other relevant
circumstances to determine whether the strike was unlawful under section
231.7.” (SanMiguel, supra, 20 Cal.5th at p. 269.) Conversely, “[a] court may
conclude that a . . . reason is valid and yet determine, after weighing other
reasons and relevant circumstances, that an objective observer would still
likely conclude that race or other protected status was a factor in the
peremptory challenge.” (SanMiguel, supra, 20 Cal.5th at pp. 269-270.)
7 A peremptory change for such a reason “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 . . . [or other protected
status], and that the reasons articulated bear on the prospective juror's
ability to be fair and impartial in the case.” (§ 231.7, subd. (e).)
5
A “denial” of a section 231.7 objection “shall be reviewed by the
appellate court de novo, with the trial court’s express factual findings
reviewed for substantial evidence.” (§ 231.7, subd. (j).) “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,” and it “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.” (Ibid.) “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.” (Ibid.)
3. Procedural Background
In connection with jury selection, prospective jurors filled out jury
questionnaires containing 70 questions. During voir dire, one of Stancil’s
attorneys disclosed to the prospective jurors that Stancil had been previously
accused of a sexual crime. She stated: “[Y]ou are going to hear evidence that
18 years ago Mr. Stancill [sic] was accused in a similar case. He was accused
of making an 11-year-old girl touch his penis. And you’re going to hear that
he pled guilty to a lesser related offense.”8
8 The trial court told the prospective jurors that “there are certain
limitations in terms of how . . . evidence [of a prior sexual offense] can be
used” and read the jury instruction that the trial court would read at the end
of trial. The trial court stated: “The People have presented evidence that the
defendant has committed this prior sexual crime. . . . [¶] You may consider
this evidence only if the people have proved by a preponderance of the
evidence that the defendant, in fact, committed the uncharged offense.
[¶] . . . [¶] . . . [I]f you decide that the defendant committed the uncharged
offense, you may, but are not required, to [co]nclude from that evidence that
6
After 12 jurors were selected, the parties questioned prospective
alternate jurors, including Ms. Wilson-Rosa. The prosecutor noted that Ms.
Wilson-Rosa had “heard a lot of the things [they] [had] talked about so far”
and asked if there was “anything [she] had strong feelings about one way or
the other as [she] [was] listening in the audience.” Ms. Wilson-Rosa replied,
“No.” The prosecutor asked if Ms. Wilson-Rosa had any issue with “the idea a
finding of guilt beyond a reasonable doubt could be based on the testimony of
just one witness.” Ms. Wilson-Rosa replied, “No.” The prosecutor noted that
Ms. Wilson-Rosa shared in her questionnaire that she “sort of didn’t have any
strong feelings about the criminal justice system or about how sexual assault
crimes are treated in the criminal justice system,” and asked, “As you’ve been
sitting here listening to this discussion, has anything stood out to you as
maybe being particularly interesting or something that you didn’t think
about before that you thought would work differently?” Ms. Wilson-Rosa
replied, “No.” The prosecutor asked, “Is there any question in your mind as
to whether you’d be able to evaluate the credibility of a child and determine
whether that or all of the evidence proves this case beyond a reasonable
doubt because of the allegations?” Ms. Wilson-Rosa replied, “No.”
One of Stancil’s defense attorneys noted that, in her questionnaire, Ms.
Wilson-Rosa “indicated . . . [she] didn’t think kids would lie about an
the defendant was disposed or inclined to commit sexual offenses. And based
on that decision, also conclude that the defendant was likely to commit and
did commit the charged offense in this case. [¶] If you conclude that the
defendant committed the uncharged offense, that conclusion is only one factor
to consider along with all of the other evidence. It is not sufficient by itself to
prove that the defendant is guilty of the offense charged in this case. [¶] . . .
Do not consider this evidence for any other purpose except the limited
purpose of determining credibility.”
7
allegation like this” and asked, “Can you tell us a little bit more how you feel
about that?” Ms. Wilson-Rosa replied, “Not really.” Defense counsel noted
that “several other potential jurors [said], I don’t think an adolescent or a
child would make up a lie about something like a rape or sexual assault,” and
asked, “[I]s that how you feel based on how you answered your questions?”
Ms. Wilson-Rosa replied, “No. I think they will lie. Yeah. I think they will.”
Defense counsel asked, “If [a witness] . . . who’s a . . . minor . . . says . . . I was
attacked, or assaulted, or raped, you’re not going to automatically believe her
just because she’s young, correct?” Ms. Wilson-Rosa replied, “Exactly.”
Defense counsel asked: “Is there anything else about the things . . . that
you’ve heard so far that . . . brought anything to mind?” Ms. Wilson-Rosa
replied, “No.”9
Stancil’s other defense attorney also questioned Ms. Wilson-Rosa.
Among other things, she asked, “[H]ow do you feel about the idea once
somebody has been accused of something, they may be more likely to be
pigeonholed?” Ms. Wilson-Rosa replied: “I don’t feel the same. I don’t have
no comments or anything like that.” Defense counsel asked, “Do you feel like
. . . you would want to hear evidence of the prior to be able to make a
determination about whether, in fact, it had happened, whether the district
attorney had met his burden that it was more likely than not?” Ms. Wilson-
Rosa replied, “No.” Defense counsel asked, “You would not want to hear that
evidence?” Ms. Wilson-Rosa replied: “I have issues with that. I don’t—it’s—
past is the past, so I don’t think—not involved with the case that’s coming up.
I don’t—I mean what difference would it make?” Defense counsel stated that
9 Defense counsel also asked some questions about possible testimony
by Stancil.
8
the “judge will read you an instruction that if the district attorney proves
that the prior incident occurred by a preponderance of the evidence . . . you
can use that as one factor in determining whether this case occurred,” and
asked, “[W]ould you be able to follow that law?” Ms. Wilson-Rosa replied, “I
think so.”
a. Peremptory Challenge, Objection, and Stated Reasons
The prosecutor exercised a peremptory challenge on Ms. Wilson-Rosa,
and defense counsel objected that the challenge violated section 231.7.
Defense counsel noted, “She’s Black. We only had five Black jurors . . . in the
90-some people that we had available.” Defense counsel stated: “I have
objected. It’s now for [the prosecutor] to state on the record the reasons for
his peremptory challenge.”
1. The Prosecutor’s Stated Reasons
The prosecutor gave his reasons for using a peremptory challenge to
remove Ms. Wilson-Rosa. He “start[ed] with the questionnaire.” He stated:
“In reviewing Ms. [Wilson-Rosa’s] questionnaire, I saw that she did not
indicate any thoughts or feelings one way, or another about criminal justice
system or about sexual assault, or how sexual assault is handled in the
criminal justice system, which . . . as the record will make clear, is unusual in
this panel, not unique but unusual. And that . . . made her answers in court
more important to my evaluation of whether I felt she would be a juror that I
would be comfortable with hearing this case.” He further stated: “Also in my
experience, the reason that that’s important is[,] as I’ve tried numerous
sexual assault cases, I’ve seen that it’s helpful to have jurors who have some
understanding or life experience about sexual assault or how it is handled in
the criminal justice system because these cases are unique in many ways.
9
And the consideration that jurors make in these cases is unique in many
ways to sexual assault for many reasons.”
The prosecutor next stated: “In court, . . . [Ms. Wilson-Rosa] did not
express any thoughts or feelings at all when she was questioned by me[;] I
also found this unusual in this group and also in my experience. Most jurors,
after sitting through this much discussion about sexual assault or this type of
case would at least have some thoughts, or questions, or feelings about the
topics that we have discussed. That was unusual and it indicated to me a
lack of emotional involvement or sort of a lack of engagement with the
questioning, which I also considered to be essential for an ideal juror in a case
like this. I want a juror who’s engaged and thinking about these topics. And
given all the complex legal areas and social areas we have discussed, I also
found that unusual, the sort of lack of any thoughts, or ideas, or feelings
about any of the very controversial topics we have discussed.” The prosecutor
noted: “After the questioning, I didn’t really have my mind made up one way
or another. And I think it was primarily when the defense started
questioning the juror that my concern sort of became more serious.”
The prosecutor next stated: “[Ms. Wilson-Rosa] wrote in her
questionnaire that she did not believe kids lie about allegations of sexual
assault or rape. She was asked to explain in her questionnaire, but she did
not. And I think I asked her about that. . . . [B]ut she didn’t indicate any
thoughts or concerns about that issue until she was asked about it by defense
counsel. When she was asked about it by defense counsel, she, I think, very
quickly switched her answer to, no, I think they would. And I think she
repeated a couple times they would. . . . My hearing of her answer is when
asked whether a child would lie by defense counsel, she said they would and
then repeated that at least once or twice. [¶] That indicated to me that this
10
juror could or would be swayed by defense counsel if she was a seated juror in
this case. It indicates a lack of conviction in her beliefs about children and
about whether a child would make up something like this which, of course, is
the essential issue for this case.”
The prosecutor next stated: “In defense counsel’s questioning, . . . [Ms.
Wilson-Rosa] also indicated she didn’t have much experience with kids . . . .
[M]y tak[e] away from that was that she didn’t have much experience . . .
judging their credibility and didn’t know how that would play out in this case.
I found that unusual considering she does have a daughter, albeit her
daughter is older. [¶] I also have found, in trying sexual assault cases, that it
is helpful to have jurors who have had or currently have close relationships
with children. That indicated to me that this juror did not or did not believe
she did. It would be harder for someone who didn’t have experience with
children or identified as not having close experience with children to judge
the credibility of a child, . . . which again is the biggest factor in this case.”
The prosecutor next stated: “But I think the largest concern that I had
about this juror was her response to the questions by defense counsel about
the possibility of a prior allegation. Up until that question, this juror seemed
fairly calm, did not express any emotion or strong feelings, or any feelings
really about anything. And as soon as defense counsel asked about the prior
allegation, this juror became more animated than she had been during any
other questions and more vocal, and said that she was very confused about
why that was coming up, and that it happened back then. Why are we even
dealing with it now? Why are we hearing about it now?” The prosecutor
further stated: “That was concerning to me for number reasons. One, the
court spent a fair amount of time explaining the law in this area and how this
evidence could be used and why we were talking about it. I spent quite a bit
11
of time as did defense counsel talking about this issue. I think her reaction to
that information was unique. I think out of all of the other jurors who were
questioned about this, she was the only one who did not understand why a
prior allegation or conviction for sexual assault would be relevant in a case
involving sexual assault particularly on a child. That was incredibly
concerning to me, having worked in this area for a long time. This is a big
factor for jurors and also for sexual assault in general. . . . So that initial very
strong appearing [sic] resistance to the idea of why we would even be dealing
with this indicated to me she just doesn’t understand sexual assault,
particularly against children, and that her reaction indicates that she would
be a juror that would be less inclined to believe a victim of sexual assault. It
didn’t even matter to her at all. In fact, she seemed somewhat offended by
the idea of bringing up a prior incident involving sexual assault.”
The prosecutor also stated: “[T]he victim in this case . . . and all of the
primary witnesses are Black. The prior victim in this case [i.e., Anne Doe]
. . . is also Black.”
2. Defense Counsel’s Response
In response to the prosecutor’s “statements that . . . [Ms. Wilson-Rosa]
didn’t have an opinion about the criminal justice system which he found
unusual,” defense counsel stated: that “XXXX XXXXX, who’s . . . seated on
the jury, . . . did not have an opinion about the criminal justice system.”10
Defense counsel also “point[ed] out that XXXXXX XXXXXX, [who is] seated in
the jury wrote ‘no opinion at this time’ . . . when asked about the criminal
justice system.” Defense counsel also stated that he “had no opinion about
10 In the transcript, the first and last names of seated jurors were
obscured with an X for each letter.
12
sexual assault cases” and pointed out that he “identifies as a white man.”
Defense counsel also stated: “XXXXX XXX, who’s seated on the jury wrote, ‘I
don’t know. I have no experience in the matter’ when he was asked how
sexual assault cases were held.” Defense counsel pointed out that he
“identifies as an Asian man.” Defense counsel pointed out that “XXXX XXXX
identifies as an Asian woman” and stated: “[She] . . . just wrote ‘no difference’
when she was asked how sexual assault cases were held. And I can go on.
There’s a number of people on the jury wrote that and the People passed on
all of them.”
Defense counsel stated: “[A]dditionally the next statement, do you
believe a child would lie or make up a charge of rape or assault. He said the
fact that she wrote no, and then changed it to yes showed that she would be
persuaded by defense counsel. A number of people wrote no in their
questionnaires including XXXXX XXX, [who’s] also seated on the jury who
identifies as an Asian man and said that he did not believe. Then I
questioned[] him he changed his answer to, yes, a child could lie. The People
passed on him.” Defense counsel also stated: “XXXXXX XXXXXXXX, who’s
seated on the jur[y] wrote, no, he did not believe a child would lie. He
identifies as a white man, as [does] XXXX XXXXX and then changed it to yes,
a child could lie. The People passed on both of them.”
Defense counsel then stated: “A number of the jurors do not have
children. And again, the People had more than enough peremptories to
excuse those people, but . . . none of those parties were Black women.”
Defense counsel then stated: “[The prosecutor] indicated that [Ms.
Wilson-Rosa] became animated when discussing the prior. I think it would
be more accurate to say she was confused. And a number of jurors were
confused.” Defense counsel also stated: “Mr. XXXXXXX, who’s also seated on
13
the jury, asked can we get the instructions back with us so we can really read
them over?” Defense counsel noted that “in most cases we do not bring priors
in” and stated that Ms. Wilson-Rosa’s “not understanding why a prior would
be relevant” was not “different from any other juror.” Defense counsel stated
that Ms. Wilson-Rosa was “probably in the other courtroom for most of it”
and “may have heard the court reading the instruction” but wouldn’t have
heard questions or answers. Defense counsel stated, “[The prosecutor’s] . . .
statements . . . about her . . . being confused . . . are . . . presumptively invalid
reasons.” Stancil’s counsel asserted that “any reason . . . [the prosecutor has]
given have all applied to other multiple prospective jurors who [the
prosecutor] passed on . . . .”
3. The Prosecutor’s Response
In response, the prosecutor stated that he had not used the words that
defense counsel had “put in [his] mouth.” The prosecutor also stated that the
other jurors’ comments about the prior sexual assault allegation “were
completely different” from those made by Ms. Wilson-Rosa and that a number
of jurors who defense counsel had exercised challenges against had indicated
that evidence of the prior sexual assault allegation “would be so strong that it
would make it difficult for them to be fair in this case.”
b. The Trial Court’s Ruling on the Objection
The trial court stated: “[T]oday is day three. . . . So, we have heard a lot
of jurors. . . . I think Ms. [Wilson-Rosa] is juror number 100 on the list. . . .
[¶] . . . [I]n looking at [section] 231.7 . . ., the court is required to evaluate the
reasons given to justify a peremptory challenge in light of the totality of the
circumstances. And I think talking about the distinctions between several
different jurors that we have talked to over the last two-and-a-half full days,
there are a lot of distinctions in terms of not just one point or the other. We
14
had significant and lengthy conversations with a number of different jurors
about these issues, which is understandable because they’re difficult issues.
[¶] I do think that in looking at the totality of all of the circumstances, I do
not find that there’s a prima facie showing that Ms. [Wilson-Rosa] was
peremptorily challenged for an improper reason, that is, based on her race,
her ethnicity or gender, gender identity, sexual orientation, national origin,
religious affiliation or any perceived membership in a protected group. So . . .
that’s the court’s finding based on the totality of everything. And so, I would
not find that she was dismissed or peremptorily challenged for an improper
reason. So the court is going to make that finding.”
4. Analysis
We begin our inquiry with the reason that the prosecutor identified as
his “largest concern,” which was that Ms. Wilson-Rosa “was the only
[prospective juror] who did not understand why a prior allegation or
conviction for sexual assault would be relevant in a case involving sexual
assault particularly on a child.” Stancil suggests this reason is
presumptively invalid under section 231.7, subdivision (e)(13), because Ms.
Wilson-Rosa’s answers about the prior conviction were similar to those given
by other jurors. We are not persuaded. As we have discussed, under section
231.7, subdivision (e)(13), the presumption of invalidity applies only if the
justification provided by the prosecutor was similarly applicable to other
jurors who were not the subject of a peremptory challenge by the prosecutor.
But the trial court found that “there [were] a lot of distinctions” between the
different jurors. Substantial evidence supports the application of the trial
court’s finding to the jurors referenced by Stancil on this point.
15
“MR. XXXXXXX” (Juror 10)11 was distinguishable because, unlike Ms.
Wilson-Rosa, he was not inclined to ignore a prior conviction. When defense
counsel asked whether Ms. Wilson-Rosa would want to hear evidence of the
prior to be able to make a determination about whether it more likely than
not happened, Ms. Wilson-Rosa answered no and stated: “I have issues with
that. . . . [P]ast is the past, . . . not involved with the case that’s coming up.
. . . I mean what difference would it make?” Juror 10 expressed an opposite
“gut feeling.” He stated: “On some level—it seems to me that a prior
conviction demonstrates a proclivity. And that is in some way a factor in
judging the character of the defendant and plays a role in weighing the
evidence. What role does it have? If I’m instructed to ignore it, I’ll ignore it.
But my gut feeling is it’s not to be ignored. I’m not sure how to deal with
that.” Thus, unlike Ms. Wilson-Rosa, Juror 10 did not express issues with
the relevance of the prior offense; he found it to be relevant (“not to be
ignored”) and sought guidance on the role the prior offense should play in
weighing the evidence.
11 The reporter’s transcript obscures the seated jurors’ names by
referring to them by a sequence of X’s reflecting the number of letters in their
first and last names, while the questionnaire answers are identified by juror
number. We can see that Mr. XXXXXXX is Juror 10 by matching information
in the voir dire testimony of “MR. XXXXXXX” with Juror 10’s questionnaire
answers, including, for example, uniquely identifying information regarding
the juror’s partner’s occupation. Likewise, we can determine which jurors
referred to by X’s correspond to which juror numbers based on identifying
information and corresponding answers to questionnaires and in voir dire. In
his opening appellate brief, Stancil refers to jurors by X’s, while the Attorney
General identifies them by juror number. In his reply, Stancil adopts the
Attorney General’s reference to jurors by number. We provide both the X’s
used by Stancil and the juror number.
16
In addition to Juror 10, Stancil cites five transcript pages and asserts
that “other jurors also expressed questions [about the prior] and MS.
XXXXXXXXX asked for clarification.”12 But the three prospective jurors who
asked questions were all distinguishable from Ms. Wilson-Rosa because, in
the cited pages, none expressed issues with the relevance of the prior offense.
The juror who was then in seat 14 merely asked for a repeat of a question,
and the jurors who were then in seats 13 and 12 asked questions related to
proving the prior offense. Even if their questions reflected some confusion
about the prior offense, they did not disagree with the relevance of the prior
offense, as Ms. Wilson-Rosa had.
Stancil also contends that the presumption of invalidity under section
231.7, subdivision (g), applies because the “prosecutor clearly relied on Ms.
Wilson-Rosa’s demeanor, noting . . . that she became animated when
discussing the prior evidence.” We disagree. As we have noted, under section
231.7, subdivision (g)(1)(B), “a lack of rapport or problematic attitude, body
language, or demeanor” is a presumptively invalid reason for a peremptory
challenge unless certain conditions are met. (Italics added.) While Stancil is
correct that the prosecutor’s statement that Ms. Wilson-Rosa “became more
animated” when defense counsel asked about the prior allegation was based
on Ms. Wilson-Rosa’s behavior, the prosecutor did not say that her animated
behavior was problematic. Rather, the prosecutor’s concern was with her
statements, which set her apart as “the only [prospective juror] who did not
understand why a prior allegation or conviction for sexual assault would be
relevant in a case involving sexual assault particularly on a child.”
12 Stancil’s reference to “MS. XXXXXXXXX” appears to be an error, as
there was no juror by that name.
17
Stancil further contends that the presumption of invalidity under
section 231.7, subdivision (g)(1), applies because the prosecutor noted that
Ms. Wilson-Rosa “seemed to behave as though sexual assault of a child ‘didn’t
even matter to her at all.’ ” (Italics added.) Here, we conclude that section
231.7, subdivision (g)(1), does not apply to the prosecutor’s statement because
it was not behavior-based. As discussed above, when defense counsel asked
about the prior offense, Ms. Wilson-Rosa stated: “I have issues with that. . . .
[P]ast is the past, . . . not involved with the case that’s coming up. . . . I mean
what difference would it make?” The prosecutor was referring to Ms. Wilson-
Rosa’s answer about the prior offense, rather than any observation about her
behavior, when he later said that, “It didn’t even matter to her at all.”
In addition to concluding that the prosecutor’s “largest concern” was
not presumptively invalid under section 231.7, subdivisions (e)(13) or (g)(1),
we further conclude that this reason was valid. A prosecutor who plans to
introduce evidence of a prior offense has a valid reason to want to remove a
prospective juror who expresses issues with the relevance of the prior offense.
It directly bears on the prospective juror’s ability to be fair and impartial in
this case. While our conclusion that the primary reason stated by the
prosecutor was valid is not dispositive of the lawfulness of the prosecutor’s
peremptory challenge, it is a significant consideration in our totality-of-the-
circumstances inquiry.
With that in mind, we have evaluated the other reasons proffered by
the prosecutor.
The first reason stated by the prosecutor was that, in her
questionnaire, Ms. Wilson-Rosa “did not indicate any thoughts or feelings one
way, or another about criminal justice system or about sexual assault, or how
sexual assault is handled in the criminal justice system,” which was “unusual
18
in this panel” but “not unique” and “made her answers in court more
important to [his] evaluation of whether [he] felt she would be a juror that
[he] would be comfortable with hearing this case.”13 Stancil contends that
this reason is presumptively invalid under section 231.7, subdivision (e)(13),
because Ms. Wilson-Rosa’s answers were similar to those given by other
jurors who expressed no opinion about the criminal justice system or sexual
assault cases. We disagree. Substantial evidence supports the application of
the trial court’s finding that there were a lot of distinctions between the
different jurors to the four jurors cited by his trial counsel, that is, “XXXXX
XXX” (Juror 1), “XXXX XXXXX” (Juror 5), “XXXXXX XXXXXX” (Juror 7), and
“XXXX XXXX” (Juror 11).
Jurors 5, 7, and 11 were distinguishable because, unlike Ms. Wilson-
Rosa, they expressed general opinions about the criminal justice system in
their questionnaires. Juror 5 wrote, “It is important and needs to be
impartial and above politics and partisan nonsense.”14 Juror 7 wrote,
“Sometimes it works and sometimes it does not.”15 (Capitalization omitted.)
13 Stancil contends that the prosecutor engaged in cursory questioning
of Ms. Wilson-Rosa and failed to question her about this reason. But, as to
this reason, the prosecutor asked: “You sort of didn’t have any strong feelings
about the criminal justice system or about how sexual assault crimes are
treated in the criminal justice system, at least you shared in your
questionnaire. As you’ve been sitting here listening to this discussion, has
anything stood out to you as maybe being particularly interesting or
something that you didn’t think about before that you thought would work
differently?”
14 In objecting to the peremptory challenge, Stancil’s trial counsel
incorrectly stated that Juror 5 did not have an opinion about the criminal
justice system.
15 In objecting to the peremptory challenge, Stancil’s trial counsel
incorrectly stated that Juror 7 had written “ ‘no opinion at this time’ ” when
19
Juror 11 wrote, “Generally fair, but could still be manipulated by attorneys
who can outsmart their opposite parties.” By contrast, in response to the
same question about her general opinions about the criminal justice system,
Ms. Wilson-Rosa wrote: “NONE.”
Juror 1 was distinguishable from Ms. Wilson-Rosa because of their
different responses to the question in the questionnaire about whether they
“feel that allegations of child molest [sic], rape, or any other sexual assault
should be treated differently from other crimes.” Ms. Wilson-Rosa answered,
“NO.” In contrast to Ms. Wilson-Rosa’s one-word answer, Juror 1 expressed
the view that some crimes should be treated differently. He wrote: “I have no
idea. I think all crimes should be treated case by case. Stealing a candy bar
is certainly different than murder, so in that case, yes I do think they should
be treated differently.”
The next reason stated by the prosecutor was that, when he questioned
Ms. Wilson-Rosa, she “did not express any thoughts or feelings” about the
controversial topics they had discussed, which “was unusual and . . .
indicated . . . a lack of emotional involvement or sort of a lack of engagement
with the questioning.”16 Stancil contends that this reason is presumptively
invalid under section 231.7, subdivision (g)(1), because the prosecutor relied
asked about the criminal justice system. (Capitalization omitted.) Rather,
that was Juror 7’s answer to a different question about what he thought
about how sexual assault cases are handled in the criminal justice system.
16 Stancil contends that the prosecutor engaged in cursory questioning
of Ms. Wilson-Rosa and failed to question her about this reason. But, as to
this reason, the prosecutor asked: “As you’ve been sitting here listening to
this discussion, has anything stood out to you as maybe being particularly
interesting or something that you didn’t think about before that you thought
would work differently?”
20
on Ms. Wilson-Rosa’s demeanor by noting her “lack of emotional
involvement.” We conclude that section 231.7, subdivision (g)(1), is
inapplicable because this reason