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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Sherman L. YARBOROUGH, Defendant and Appellant.

No. D004483.

Decided: February 25, 1988

Deborah Tuttelman, Berkeley, for defendant and appellant. John K. Van de Kamp, Atty. Gen. and Lilia E. Garcia, Deputy Atty. Gen., for plaintiff and respondent.

A jury convicted Sherman Yarborough of forcible rape (Pen.Code, § 261, subd. (2)), forcible penetration of the genital/anal openings by a foreign object (Pen.Code, § 289, subd. (a)), oral copulation with a child under 14 years old (Pen.Code, § 288a, subd. (c)) and lewd and lascivious act upon a child (Pen.Code, § 288, subd. (a)).   The trial court sentenced Yarborough to eight years in prison.   Yarborough, a Black, appeals, principally contending he was denied his right to a jury drawn from a representative cross-section of the community in violation of the principles set forth in People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.   In this assignment of error, Yarborough contends (1) the trial court failed to recognize a prima facie case of group discrimination had been made after the prosecution had challenged two Black venirepersons and (2) the prosecution's explanations for the challenges—proffered at the time of sentencing—did not rebut the presumption of group discrimination.   While we agree a prima facie case of group discrimination had been made, we conclude, on our review of the record, the two Black venirepersons were not improperly challenged.   We also reject Yarborough's other assignments of error concerning allegations of prosecutorial misconduct and sufficiency of the evidence.


Yarborough, a Marine, lived with Marcia E. and her three daughters, including eight-year-old Denise, in a two-bedroom apartment in Oceanside.   The three girls slept in one bedroom, with Denise sleeping on the floor and the two younger girls sleeping on beds nearby.   Between January and March 8, 1985, the Marines assigned Yarborough to field duty, but in March he returned to the apartment.   After his return, Yarborough and Marcia stopped having sexual relations and he started sleeping on the living room couch.   Also, between March and July, Marcia noticed Denise walking in a peculiar fashion with her legs in a straddle position and having a bad vaginal odor.   Marcia thought the walk was caused by Denise's overweight condition and assumed the odor was caused by poor hygiene, telling her daughter to wash herself more often.   Also, during this time period, Denise complained it was painful when she defecated and asked her mother to take her to the doctor.   The mother refused.   Denise also told her mother she wanted to move from the apartment, but would not explain why.   Marcia testified Denise would become upset and cry when she was left alone in the apartment with Yarborough, but the other two daughters did not cry.   Marcia noticed Yarborough and Denise would stare at each other, but Marcia never discussed this with either one even though it seemed strange to her.   However, Marcia said Yarborough was good with her kids, acting as a father towards them.   She said Yarborough did not discipline Denise by hitting or spanking her, but added that Yarborough had remarked, “ ‘Denise knows what she gets when she be bad.’ ”

On Thursday, July 11, 1985, at 3:42 a.m., Marcia woke up and went to the kitchen for a drink.   She noticed Yarborough in the girls' bedroom, near the closet.   Yarborough followed Marcia into the kitchen and they talked.   She returned to her bedroom, and Yarborough closed the bedroom door behind her.   Later that morning, Marcia noticed Denise was walking poorly again and although Marcia yelled at her to straighten up, Denise did not say anything.   On the following Sunday, Marcia was at the complex's swimming pool, talking with Christie Cotton when Denise approached and said she had something to say.   She told Marcia that Yarborough had been coming into her room late at night and “messing with her.”   Marcia was shocked and immediately took Denise to confront Yarborough in the apartment.   Yarborough denied the accusation, became angry and started throwing things around the apartment.   Marcia took Denise to a local hospital and she was referred to Children's Hospital, where Denise was examined on July 17, 1985.   Denise told a social worker about several acts of molestation and related that someone had put his penis inside her vagina.   At trial, Denise testified that on July 11, Yarborough had awakened her and told her to pull down her pants and spread her legs.   Yarborough forced her to spread her legs apart and put his finger in her vagina.   She said it hurt her.   Then he orally copulated her.   When asked by the prosecutor whether Yarborough put his penis in her vagina, Denise said he had not.   The prosecutor tried to refresh Denise's memory by referring to her preliminary hearing testimony.   Finally, after much questioning, Denise said Yarborough had put his penis in her vagina once, but she did not know when.   Denise said Yarborough told her, “If you tell your mom, your mom, she will whip you, and she won't buy you no bike for Christmas.   He also told her that he would make her “suck his thing,” a reference to his penis.   She said she did not want to do this.

Denise also related that on another night when Marcia was at a friend's house, Yarborough put shaving cream on her pubic area, as well as lotion and hair grease.   Denise said Yarborough put his finger in Denise's anus and licked her there.

Dr. Sylvia Strickland testified her physical examination of Denise disclosed bruising and hypervascularity in the genital area, which indicated a significant amount of trauma to the area caused by an abrasion-type force of rubbing.   Strickland said the injuries were consistent with having been inflicted by a penis or a finger.   Since the injuries were painful, the doctor opined they were not self-inflicted.   The doctor also opined the injuries were not accidental.   Strickland also observed multiple lacerations or fissures inside Denise's anal area and opined they were seven-to-ten days old, which coincided with July 11.   Strickland also noticed Denise had a vaginal discharge and ordered tests.   The test results showed the presence of Gardnerella, a bacterial infection that is often transmitted sexually.   The parties stipulated Yarborough tested positive for the presence of Gardnerella.

A social worker at Children's Hospital who interviewed Denise testified Denise told her someone had put his penis in her vagina as well as other molestations.   The social worker said Denise told her the molestations occurred while she was in the first grade, but did not specify a day or month.

Yarborough testified he did not molest Denise at any time.   He said he was in Denise's room the early morning of July 11 to close the windows.   Yarborough testified that after he and Marcia conversed, he returned to her bedroom and slept on the floor.   Yarborough also said he believed Marcia was making up the accusations against him and drawing Denise into the lie.   He said Marcia was always accusing him of seeing other women and was a spiteful person.



In People v. Wheeler, supra, 22 Cal.3d 258, 276–277, 148 Cal.Rptr. 890, 583 P.2d 748, our Supreme Court held:

“[T]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article 1, section 16, of the California Constitution.”

 The Wheeler court established the following procedure for remedy of impermissible peremptory challenges based on group discrimination:  The party raising the issue must do so in a timely fashion and show a prima facie case of such discrimination.   In determining whether a prima facie case has been made, a three-prong standard is used:  (1) did the party make as complete a record of the circumstances as is feasible?;  (2) did the party establish that the persons excluded are members of a cognizable group?;   and (3) did the party, in light of all the circumstances of the case, show a strong likelihood that the excluded persons were challenged because of group bias rather than specific bias? (People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)   If a prima facie case is established, the burden shifts to the prosecution to show that the peremptory challenges were not based solely on group bias. (Id. at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.)

Here, the voir dire process started with the drawing of 18 names from the venire, including Martin Barnett, a Black.   There was one other Black in the venire—Betty Jones–Robinson, who was eventually called to the jury box to replace a member of the panel who had been challenged.   The prosecution exercised its second peremptory challenge against Barnett.   The defense noted for the record at sidebar that Barnett was Black.   When called to exercise its sixth peremptory challenge, the prosecution announced its satisfaction with the jury as it was presently constituted, including Jones–Robinson.   After the defense exercised its sixth challenge, the prosecution challenged Jones–Robinson.   At the close of the day's proceedings, the defense attacked the challenges of Barnett and Jones–Robinson.   The defense noted these two individuals were the only Black venirepersons and argued there was no valid reason for eliminating them from the jury.   The trial court responded by confirming Barnett and Jones–Robinson were the only Blacks in the venire and that Blacks constitute a cognizable group within the meaning of the representative cross-section rule.   However, the court found a prima facie case of improper group discrimination had not been established because there was not a strong likelihood Barnett and Jones–Robinson were challenged because they were Black rather than because of any specific bias.   Since the court concluded a prima facie case had not been established, it declined to ask the prosecution to explain the challenges of Barnett and Jones–Robinson.2  At the time of sentencing, the prosecution expressed concern that a Wheeler issue might be raised on appeal and asked permission to state its reasons for the record on why it challenged Barnett and Jones–Robinson.   The trial court agreed to let the prosecution state its reasons for the record.

Hence, the Wheeler issue arises in an unusual context because even though the trial court found a prima facie case had not been established, the prosecution voluntarily proffered reasons for the challenges at the time of sentencing.3  This unorthodox procedure presents us with two questions:  (A) Did the trial court err in not finding a prima facie case?;   and (B) Did the prosecution state sufficient reasons to establish the challenges were based on specific bias, thereby rebutting any presumption of group bias?


No one disputes the first two prongs of the prima facie case were established by defense counsel.   The critical issue therefore is did the trial court err in concluding there was not a strong likelihood that Barnett and Jones–Robinson were challenged because they were Black rather than because of a specific bias.

 At the outset, we note the Wheeler court observed that the trial court is in a good position to determine whether a prima facie case has been made:

“We recognize that such a ruling ‘requires trial judges to make difficult and often close judgments.   They are in a good position to make such determinations, however, on the basis of their knowledge of local conditions and of local prosecutors.’  [Citation.]   They are also well situated to bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience․”  (People v. Wheeler, supra, 22 Cal.3d 258, 281, 148 Cal.Rptr. 890, 583 P.2d 748.)

Here, the trial court explicitly relied on its observation of Barnett's and Jones–Robinson's responses, including their demeanor and body language.4  The trial court also implicitly 5 relied on the fact that the prosecution had at one point accepted the jury as then constituted with Jones–Robinson as a juror.   It may be reasonable to infer from the fact that the prosecution was willing to start the trial with a Black juror that the prosecution was not acting in bad faith.   Such an inference, however, is not conclusive on the question of systematic discrimination.

 Most recently, the Supreme Court in People v. Snow (1987) 44 Cal.3d 216, 225, 242 Cal.Rptr. 477, 746 P.2d 452 noted that the fact a prosecutor “passed” or accepted a jury containing Blacks is not conclusive “for to so hold would provide an easy means of justifying a pattern of unlawful discrimination which stops only slightly short of total exclusion.”   The Snow court, which relied on People v. Motton (1985) 39 Cal.3d 596, 217 Cal.Rptr. 416, 704 P.2d 176,6 continued:

“Although the passing of certain jurors may be an indication of the prosecutor's good faith in exercising his peremptories, and may be an appropriate factor for the trial judge to consider in ruling on a Wheeler objection, it is not a conclusive factor.”  (People v. Snow, supra, 44 Cal.3d at p. 225, 242 Cal.Rptr. 477, 746 P.2d 452;  original italics.)

We also note “a fair reading of Wheeler requires only that the court find a reasonable inference of group bias once an appropriate foundation is laid in the first of the two stages.” (People v. Fuller (1982) 136 Cal.App.3d 403, 423, 186 Cal.Rptr. 283, fn. omitted.)   In this regard, Yarborough points out (1) the prosecution struck all members of the identified group from the venire, (2) he is a member of the excluded group, (3) the two excluded jurors share only one characteristic—their race—and (4) neither of the excluded jurors expressed any views indicating partiality to the defense.   These factors—notwithstanding the trial court's observations and its implicit reliance on the fact the prosecutor at one point “passed” with a Black sitting on the jury—establish a prima facie case under the authority of Wheeler, supra,;  People v. Turner (1986) 42 Cal.3d 711, 719, 230 Cal.Rptr. 656, 726 P.2d 102.  Wheeler noted that one method of proving a prima facie case consists of a showing the opposing party has struck most or all of the members of the identified group from the venire.  (Wheeler, supra, 22 Cal.3d 258, 280, 148 Cal.Rptr. 890, 583 P.2d 748.) 7  Wheeler also suggested another method of supporting a prima facie case is showing that the challenged jurors are largely heterogeneous, with only group membership in common.   (Ibid.)  (Here, Barnett and Jones–Robinson come from different backgrounds and have different family and employment histories.)   Finally, Wheeler said a defendant's showing gains strength if he is a member of the challenged group.  (Id. at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.)   We conclude the trial court erred in finding there was not a prima facie case.   Nonetheless, we find the error was harmless for two reasons.   The prosecution added its reasons for excluding Barnett and Jones to the record, and we conclude those reasons rebut any presumption of group bias raised by the prima facie case.


 Upon undertaking an assessment of the prosecution's proffered reasons, we first observe we would be entitled to review, as a matter of law, the trial court's ruling on the prosecution's justifications had the trial court found a prima facie case had been established.

“To the extent that a trial court's ruling on the proffered explanation of a prosecutor turns on the latter's credibility, we agree with the United States Supreme Court that ‘a reviewing court ordinarily should give those findings great deference.’  (Batson v. Kentucky [1986] 476 U.S. [79] at p. [98], fn. 21, [106 S.Ct. 1712, 1724, fn. 21, 90 L.Ed.2d at p. 89, fn. 21].)  Our decisions demonstrate, however, ‘ordinarily’ does not mean ‘inevitably’:  in some cases the reviewing court may conclude that the explanation is inherently implausible in light of the whole record.   And even when there is no doubt of the prosecutor's good faith, the issue whether a given explanation constitutes a constitutionally permissible—i.e., nondiscriminatory—justification for the particular peremptory challenge remains a question of law.”  (People v. Turner, supra, 42 Cal.3d 711, 720, fn. 6, 230 Cal.Rptr. 656, 726 P.2d 102;  see also People v. Granillo (1987) 197 Cal.App.3d 110, 120, 242 Cal.Rptr. 639.)

The prosecution gave the following explanation for the challenges:

“Just briefly, I do not remember the two jurors names, but there was a young, Black gentleman who was sitting in the front row.   And he indicated that he was a maintenance worker for parks and recreation, and he worked on a golf course.   He indicated through my questioning that he had absolutely 8 no experience with children.   He had never taught children.   He had never worked with children.   He had never baby-sat children, basically knew very little about them.

“As is, I think, pretty clear in a child molest case, when I am going to be calling a child witness, an eight-year-old witness, I am looking for jurors who have some experience with children.   And that's my reason for excusing that young man, as it was for excusing, I believe, four or five other jurors, basically because they did not have experience with children.

“With respect to the Black woman, who was sitting up in the back row, I think she was juror number six․  [¶ ] She indicated that she did have some children.   She had two children, I believe, a 10–year–old daughter and an older son.   She was employed.   She worked at one of the hospitals in town.   I think it was University Hospital.   And she knew a man who had been accused of child molest and had subsequently either pled guilty or been convicted.   And she was somewhat surprised by that, having known him.

“She did appear to be a good juror as far as the People were concerned, except that she made a comment that bothered me.   She commented that her daughter, her 10–year–old daughter, was very close to her and that her 10–year–old daughter told her everything.   Whenever anything went wrong, her daughter told her about it.

“Now, in this case I had a young victim who did not tell her mom about being molested by the defendant for a substantial period of time.   I was a little bit gun-shy about a comment like that, because I had just had a case where a mom who sat as a juror could not understand why a child wouldn't tell a parent about being molested and, for that reason, basically didn't believe the child.

“That concerned me, when this mom said the same sort of thing, that her child would tell her everything.   I felt that she might have problems understanding why this child would not tell her own mother.   And for that reason, I excused her.  [¶] So those were my reasons.”

First, we take up the challenge of Barnett.   Yarborough basically contends the prosecution's citing of Barnett's lack of experience with children is a sham reason.   We disagree.

Certainly, in a case in which the prosecution's chief witness is a young child, it is legitimate to want jurors who can understand the child's reaction to the adult environment of a courtroom and are familiar with children and how they communicate.   Here, besides the two Black venirepersons, the prosecution lodged peremptory challenges against five individuals, four of whom had no children (Christopher Henderson, Patricia Mitchell, Jan Abernathie and Darryl Fromson).   Another venireperson (Elsa Hutchins–Castellanos), whose only experience with children was her own 15–month–old baby, also was challenged by the prosecution.   If one discounts venireperson Henderson because of a potential bias against law enforcement, that leaves four prosecution-challenged venirepersons other than Barnett, who from the bare record did not display any obvious reason for a peremptory challenge other than their lack of experience with children.   Furthermore, with the exception of Jones–Robinson, all the prosecution-challenged venirepersons lacked significant experience with children.

In Wheeler, the Supreme Court noted the prosecution might sustain its burden by showing that it peremptorily challenged similarly situated members of the majority group on identical or comparable grounds.  (22 Cal.3d at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748.)   Such a comparison must be presented to the trial court at the time the prosecution attempts to justify the challenges made to members of the cognizable class.  (People v. Trevino, supra, 39 Cal.3d 667, 682, 217 Cal.Rptr. 652, 704 P.2d 719.)   Here, the deputy district attorney did this.

Yarborough contends the prosecution's failure to challenge Francisco Bustos and Mikan Sljivar—two men who also were among the first 18 individuals drawn from the venire and had limited experience with children—belies the validity of the proffered explanation for excusing Barnett.   Bustos was married and the father of a 13–month–old child.   He said he liked children.   He was previously a witness in another trial and enjoyed the experience.   It is true, Sljivar, a biology student, was single and had no children.   But he had babysat when he was in junior high school, which was less than 10 years ago.   The unmarried Barnett had no children, but did have an 11–year–old niece.   However, he had never babysat for anyone.   He also expressed a lukewarm attitude toward children:  “Well, to tell the truth, kids are okay with me, as long as they're not spoiled.”   We cannot say that Bustos' and Sljivar's distinctive characteristics or attitudes concerning children did not neutralize the minus from the prosecutor's point of view of limited experience with children.

As to Jones–Robinson, she gave some answers that appeared to be pro-prosecution:  When she first heard the charges, they had a big impact on her.   “It touched my heart,” she said.   Later, she added:  “Simply because I have a daughter around that age, and I don't think adults are supposed to have sex with kids.”   The prosecutor expressed uneasiness with Jones–Robinson because Jones–Robinson was sure her own daughter would confide in her about a molestation.  (“I feel ․ my daughter would tell me anything and everything.”)   While Jones–Robinson also told the prosecutor that she realized some children do not confide in their mothers, the prosecutor related how in a previous trial a mother with a close relationship to her daughter did not believe the victim because she had not confided in her mother.   Given that history and the importance to the prosecution's case of Denise's testimony, we cannot say the challenge of Jones–Robinson was not based on specific bias.9

In conclusion, we are satisfied that no reversible Wheeler error occurred.   Although the trial court incorrectly concluded a prima facie case had not been made, we find the prosecutor's proffered explanation at sentencing adequately rebutted the prima facie showing of group discrimination by demonstrating a convincing nonracial reason for the exercise of a peremptory challenge against Barnett and against Jones–Robinson.



Judgment affirmed.


2.   The trial court remarked:  “First, I should state that it is clear that the two individual jurors who were excused were the only two Black jurors on the panel.   They do constitute a cognizable group with [sic] the meaning of the representative cross-section rule.   During the questioning of these two Black jurors, I listened very carefully to the questions that each of you posed and also to their answers.   I looked at their demeanor, their body language, how they interacted with counsel.  [¶] I do not believe at this time, Mr. Kolkey, that you have shown a strong likelihood that these two individuals were challenged because of their group association, rather than for other legitimate causes.   So I will not ask the prosecution to explain her reasons for the exercise of the peremptory challenge.”

3.   In People v. Davis (1987) 189 Cal.App.3d 1177, 1194, 234 Cal.Rptr. 859, the court said:  “[W]e suggest that where Wheeler motions have been made and, of course, each denied, whether the trial court has determined that a prima facie case of discriminatory exclusion has been demonstrated or not, the prosecution, while not compelled to do so [citation], may be well advised to make a record at some point after the jury selection process has been completed, articulating any reasons or further reasons it may have for having challenged members of the cognizable group․”

4.   Alone, such largely intangibles as a juror's body language or demeanor do not rise to the level of specific bias in the Wheeler context (see People v. Trevino (1985) 39 Cal.3d 667, 692, fn. 25, 217 Cal.Rptr. 652, 704 P.2d 719).   But they are a circumstance that can be considered along with other factors in evaluating whether specific bias in the Wheeler context exists.

5.   When defense counsel raised the Wheeler issue, the trial court deferred its decision until it had read People v. Boyd (1985) 167 Cal.App.3d 36, 212 Cal.Rptr. 873.   In Boyd, the prosecutor used three of its peremptory challenges against three Black jurors.   Defense counsel made a Wheeler motion after the prosecutor had excused the second black juror.   However, before the second Black juror was excused, the prosecutor had accepted the jury as constituted.   The Court of Appeal found there was no prima facie showing that the Black jurors were excused solely on the basis of group bias.

6.   In People v. Motton, the court, quoting with approval an earlier Court of Appeal opinion, said:  “The Attorney General argues that the prosecution's acceptance of the jury on three occasions, when there were one or two Blacks on the panel, rebuts defendant's prima facie showing․  ‘[t]his contention ignores the practical realities of jury selection and misses the point in Wheeler.   If the presence on the jury of members of the cognizable group in question is evidence of intent not to discriminate, then any attorney can avoid the appearance of systematic exclusion by simply passing the jury while a member of the cognizable group that he wants to exclude is still on the panel.   This ignores the fact that other members of the group may have been excluded for improper, racially motivated reasons.   In fact, the offending counsel who is familiar with basic selection and challenge techniques could easily accept a jury panel knowing that his or her opponent will exercise a challenge against a highly undesirable juror.   If, for instance, three people on the panel exhibit a prosecution bias, then the prosecutor could pass the jury with at least three members of the group which he ultimately wishes to exclude still remaining on the jury—knowing that he will have a later opportunity to strike them.   By insisting that the presence of one or two black jurors on the panel is proof of an absence of intent to systematically exclude the several blacks that were excluded, the People exalt form over substance.’ ”  (39 Cal.3d at p. 607–608, 217 Cal.Rptr. 416, 704 P.2d 176.)

7.   A prima facie case was found in People v. Fuller, supra, 136 Cal.App.3d 403, 415, 186 Cal.Rptr. 283 when three challenges were used to remove the only three available Black jurors.

8.   The record shows Barnett had a niece and knew a friend's child, whom he characterized as spoiled.   Hence, this blanket statement by the prosecution of absolutely no experience was an overstatement.

9.   We also note that after the prosecutor proffered the explanation for the challenges, the trial court observed:  “I do not believe that the challenges were made for improper reasons.”

FOOTNOTE.   See footnote 1, ante.

TODD, Associate Justice.

WORK, Acting P.J., and BENKE, J., concur.

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