People v. Douglas, C072881

Background

In 2011 Douglas and codefendant Clifton Sharpe chased Jeffrey after Jeffrey allegedly shorted a payment to Douglas’s former boyfriend (a male escort); during a freeway confrontation Douglas pointed a gun and fired; Jeffrey escaped unharmed.
Douglas was tried and convicted of attempted second-degree robbery, assault with a semiautomatic firearm, shooting at an occupied motor vehicle, exhibiting a firearm in a vehicle, and carrying a loaded firearm with intent to commit a felony; several firearm enhancements were found true; aggregate sentence = 6 years.
During voir dire two openly gay prospective jurors (D.J. and S.L.) were peremptorily struck by the prosecutor; defense made a Wheeler/Batson motion asserting strikes were based on sexual orientation.
Prosecutor gave multiple reasons: (1) D.J.’s close friendship with a local public defender (who disparaged prosecutors), (2) S.L.’s demeanor and short answers, and (3) a concern that openly gay jurors might react differently to the prosecution’s witness who had lied about sexual activity—an explanation that invoked sexual orientation.
Trial court denied the Wheeler motion without expressly resolving whether the sexual-orientation rationale was a motivating factor. Douglas also challenged the use of CALCRIM No. 460 (attempt instruction) as vague and as creating an impermissible presumption of intent.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor’s peremptory strikes of two openly gay veniremembers violated Batson/Wheeler	Strikes were supported by race-neutral, non-discriminatory reasons (friendship with public defender; demeanor) and legitimate concerns about jurors’ ability to assess witness credibility	Strikes were motivated by impermissible group bias (sexual orientation), violating equal protection and Wheeler/Batson	Court held trial judge did not adequately evaluate the mixed-motive claim; remanded for a hearing applying a mixed-motive analysis. If prosecutor shows he would have struck regardless, challenges stand; if not, new trial required.
Whether CALCRIM No. 460 (attempt instruction) is unconstitutionally vague or creates a mandatory presumption of intent	N/A (People contended instruction was proper)	Instruction’s definition of “direct but ineffective step” is too vague; wording that a direct step “indicates” intent creates an unconstitutional mandatory presumption relieving prosecution of burden of proof	Court rejected Douglas’s challenge: instruction is not impermissibly vague; “indicates” does not equal a mandatory presumption and jury was instructed to apply the separate robbery-intent instruction; no reversible error.
Whether appellate review is barred by forfeiture/invited-error where counsel requested CALCRIM No. 460	People: defendant forfeited by not objecting and by requesting instruction	Douglas: substantive error affected substantial rights so review warranted	Court reviewed instruction despite possible forfeiture to guard against substantial-rights and ineffective-assistance arguments and rejected the claim on the merits.

Key Cases Cited

Batson v. Kentucky, 476 U.S. 79 (1986) (Equal Protection prohibits strikes based solely on group membership)
Wheeler v. Superior Court, 22 Cal.3d 258 (1978) (California rule prohibiting peremptory strikes based on group bias)
Rice v. Collins, 546 U.S. 333 (2006) (permissible to uphold strike where prosecutor offered multiple race-neutral reasons)
Snyder v. Louisiana, 552 U.S. 472 (2008) (court should not presume trial judge relied on a demeanor explanation not actually credited on record)
Carella v. California, 491 U.S. 263 (1989) (invalidating jury instructions that create mandatory presumptions on intent)
People v. Hamilton, 45 Cal.4th 863 (2009) (describing Batson/Wheeler three-step analysis and deference to trial court credibility findings)
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) (Ninth Circuit held equal protection bars peremptory strikes based on sexual orientation)