96 Cal.App.5th 768
Cal. Ct. App.2023Background
- Defendant Luis Ortiz was convicted by jury of multiple sexual offenses against three minor victims and sentenced to an aggregate term of 225 years to life. The judgment was appealed.
- During jury selection, the prosecutor used a peremptory challenge to remove S.H., the only Black juror who had been orally questioned; defense objected under Code Civ. Proc. § 231.7. The prosecutor cited S.H.’s blank questionnaire page, confused or incomplete answers, soft‑spoken/reticent demeanor, evasiveness, and statements suggesting discomfort resolving conflicts (and concern about consequences/punishment).
- The trial court confirmed on the record that S.H. had given confused/limited answers and that the demeanor‑based observations occurred, then overruled the § 231.7 objection and allowed the strike.
- Midtrial, a defense character witness (L.G.) testified; her daughter subsequently disclosed alleged molestation by Ortiz. The prosecutor recalled L.G. to impeach her character testimony by eliciting that disclosure (limited to its effect on L.G.’s opinion). Defense sought a continuance and mistrial; both were denied and the limited testimony was admitted with a jury limiting instruction.
- The court instructed the jury with CALCRIM No. 1193 (on CSAAS evidence). Ortiz challenged the peremptory strike, the admission of the midtrial disclosure and denial of continuance, the CSAAS instruction, and claimed cumulative error. The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Ortiz) | Held |
|---|---|---|---|
| Peremptory strike of Black juror under CCP §231.7 | Strike was race‑neutral: S.H. gave confused/insubstantial answers, left page blank, was soft‑spoken/reluctant/evasive, and indicated he might consider punishment in deliberations; prosecutor later articulated these reasons when prompted | Reasons were the very demeanor/answer types §231.7(g) treats as presumptively invalid; prosecutor ‘‘parroted’’ court observations and offered afterthought reasons; insufficient explanation and record support | Affirmed. Trial court’s confirmation of demeanor supported by substantial evidence; prosecutor gave an explanation under §231.7(g)(2); under de novo review there was no substantial likelihood race was a factor. |
| Admission of L.G.’s testimony about daughter’s midtrial disclosure; denial of continuance | Testimony permitted to impeach/rebut defense character evidence and was offered only for its effect on L.G.’s opinion; limited scope and limiting instruction minimize prejudice; continuance unnecessary because disclosure not offered for truth | Admission was unduly prejudicial (Evidence Code §352) and the late disclosure deprived defense of time to investigate; continuance or mistrial required for due process and effective assistance | Affirmed. Court did not abuse discretion under §352; testimony probative of why L.G. changed opinion and not inflammatory; limiting instruction adequate. Denial of continuance not an abuse given lack of showing of diligence or specific need. |
| CALCRIM No. 1193 (CSAAS instruction) | Instruction accurately limits CSAAS evidence to assessing whether victims’ conduct is consistent with abuse and for evaluating believability | Instruction allows jurors to improperly bolster credibility and shift burden, lessening proof beyond a reasonable doubt | Affirmed. Instruction consistent with controlling appellate precedent and, read with the record, posed no reasonable likelihood of misapplication. |
| Cumulative error | Multiple rulings together deprived Ortiz of a fair trial | Errors cumulatively prejudiced outcome | Rejected. No single prejudicial error proved, so no cumulative prejudice. |
Key Cases Cited
- Batson v. Kentucky, 476 U.S. 79 (1986) (constitutional prohibition on race‑based peremptory strikes)
- Wheeler v. People, 22 Cal.3d 258 (1978) (state law prohibition against racially motivated peremptory challenges)
- People v. Holmes, McClain & Newborn, 12 Cal.5th 719 (2022) (discussion of constitutional and statutory law governing peremptory challenges)
- People v. Jaime, 91 Cal.App.5th 941 (2023) (interpretation of newly enacted CCP §231.7 framework)
- Miller‑El v. Dretke, 545 U.S. 231 (2005) (caution against post hoc shifting justifications for strikes)
- Foster v. Chatman, 578 U.S. 488 (2016) (example of shifting explanations supporting discriminatory intent)
- People v. Duff, 58 Cal.4th 527 (2014) (prosecutor may avoid timid/reluctant jurors)—cited for race‑neutral demeanor rationales
- People v. Perez, 29 Cal.App.4th 1313 (1994) (upholding challenges based on reluctance to answer questionnaire)
- People v. Lenix, 44 Cal.4th 602 (2008) (substantial‑evidence standard definition and application)
- People v. Jones, 57 Cal.4th 899 (2013) (Evidence Code §352 balancing and due process limits on prejudicial evidence)
- People v. Doolin, 45 Cal.4th 390 (2009) (standards for continuance requests and §352 analysis)
- People v. Hinton, 37 Cal.4th 839 (2006) (permissible impeachment of character witnesses on good‑faith belief of inconsistent acts)
- People v. Gonzales, 16 Cal.App.5th 494 (2017) (upholding CALCRIM 1193 explanatory usage of CSAAS)