PEOPLE v. AVITT (1995)

This case presents all the intrigue of a murder mystery.   A young mother was shot in the head, most of her blood was drained from her body, and the corpse was dumped in a remote rural setting.   Her husband, defendant Charles Avitt, was charged with first degree murder for financial gain.   He testified at trial he did not kill his third wife, Susan.   The jury was confronted with the head on clash between circumstantial evidence and reasonable doubt.   There was no direct evidence to tie him to the murder but extensive evidence of motive, opportunity and physical evidence connecting defendant to the murder.   He was convicted as charged.

Defendant complains that prosecutorial misconduct permeated the trial and included the impermissible use of peremptory challenges to excuse women jurors based solely on their gender.   He asserts a juror, who was physically threatened during the trial, contaminated at least four other jurors on the panel.   And he contends the trial court erred by denying his Wheeler (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748) motion and his motion to dismiss for prosecutorial and juror misconduct, and by admitting evidence of defendant's receipt of insurance proceeds from the accidental death of his second wife and excluding evidence of his polygraph examination.   To the extent that any of the individual errors do not necessitate reversal, he insists that cumulatively they do.

In this appeal, the performance of the judge, the prosecutor, and the jury are placed on trial.   We acknowledge the imperfections of each, and therefore, review the entire record with careful circumspection.   Yet we conclude the defendant received the fair trial assured him by our state and federal constitutions.   The judgment is affirmed.

FACTS

A. Background:  The Motive

Defendant first married Doreen Meisch in 1975.   She testified defendant gambled during their marriage.   In 1978 he purchased a .357 Magnum rifle.   The $13,000 property settlement he received when they divorced in 1982 was quickly exhausted.

Defendant remarried in 1983.   He and his second wife, Karen, purchased life insurance.   They had two daughters.   Defendant obtained his contractor's license in 1984 and began his own business, A & A Electric.   In late 1984 or early 1985 he borrowed $1000 from a friend but never repaid the loan.   In 1986 he purchased a .22 caliber handgun.   Karen died in an accident in 1987.   Despite receiving $100,000 as the beneficiary of Karen's life insurance, defendant never paid the medical costs associated with her treatment including a $1,500 bill to Lodi Memorial Hospital and nearly $14,000 to St. Joseph's Medical Center.   Defendant disbursed $40,000 within 11 days and the remaining $60,000 within a month.   In September 1987 defendant's debts were discharged in bankruptcy.

During 1988 and 1989 defendant had a relationship with Doreen Ryan.   She testified defendant told her he had spent $100,000 in the lottery and he should win something.   Defendant expressed his desire to retire early.   He inquired twice about what kind of life insurance she had, once during a conversation when they were discussing marriage.   Defendant took Doreen to his “thinking spot,” a remote place where Susan's body was ultimately found.

By mid–1989 A & A Electric again became heavily indebted.   Defendant began dating Susan in November 1989 and the following month Susan became pregnant.   He questioned whether he was the father and planned to have paternity tests performed.   Defendant told his landlady he did not love Susan, but he moved in with her in January and said the “honorable” thing to do was to marry Susan, which he did.   He thereafter had a sexual relationship with Barbara Rose.   He continued to flirt with another woman, Cindy, from February through August and misled Cindy into believing he was not married.

In April 1990 defendant once again filed a petition in bankruptcy and bought another life insurance policy.   He was the beneficiary of the $150,000 policy they purchased on Susan's life.   He also was a beneficiary on Susan's account at the credit union.

In June, Susan's ex-husband (Neer) asked the Avitts if they wanted to purchase his one-half interest in the house in which they were residing.   They applied for a home loan through Susan's credit union but the loan was refused.   Nevertheless, they purchased a new Ford Explorer with an accompanying life insurance provision.

Defendant kept a “Manual of Good Luck” wherein he chronicled both his secrets and the source of his unhappiness.   Under the heading entitled “Why I Am Unhappy with My Life,” defendant wrote, “I didn't stay single” and “I made Susan pregnant.”   Listing his “Biggest Secrets,” he wrote, “I hate being married” and “I still love Doreen.”   He also responded to singles ads with pictures of himself without a shirt and invitations to have a sexual relationship.   He visited establishments housing prostitution and went with a co-worker “looking for hookers.”

In August or September 1990, Susan gave birth to defendant's third daughter.   In October, he asked another woman out to dinner.

Around December 10 the real estate agent handling the sale of the Neer house to the Avitts received a preliminary title report disclosing many liens.   Defendant assured the agent the liens had been paid with the exception of $10,000 which would be paid out of the proceeds of the loan.   Defendant also told the agent Susan was going to the credit union to finalize the loan.   He never told the agent the loan had been disapproved.

The Avitts, along with some relatives, decorated their house for Christmas.   Susan's relatives testified that Susan had commented that she would have to pay an electrician to fix the lights.   Defendant retorted, “[Y]ou'll pay all right.”   A few days later when asked why Susan was not leaving the baby with defendant she responded that she wasn't going to inconvenience him.

Susan's mother had recently passed away.   On December 16 she cleaned her mother's apartment and was scheduled to remove her mother's belongings and return the keys the following day.   She never did.   Late in the afternoon the Avitts sold Susan's Nissan for $4,000 in cash.   They had dinner with her sister, talked about taking a cruise with the proceeds from the sale of the car, and went to bed around 10:00 p.m.

B. December 17, 1990:  The Opportunity

According to defendant, the Avitts arose at 5:10 a.m.   Defendant took his three daughters to a babysitter at 6:45 a.m.   The babysitter did not notice anything unusual.   Susan drove defendant to the storage unit in the Ford Explorer to get a ride to work because his truck was being repaired.   She was carrying the $4,000 in cash proceeds from the sale of the car.   Susan had told her supervisor she would be late for work that morning.

Defendant later told investigating police officers he waited at the storage unit for about 20 to 25 minutes when, having decided his partner was not coming, he walked to the Ford dealership to check on the progress on his truck.   A computer system monitors entrance to the storage unit.   Records from the system disclosed only one card had been used twice that day.   The card belonged to defendant's partner, Mark LaChappelle, whose testimony corroborated these records.

At the dealership, defendant was told the truck would be ready around 10:00 a.m.   He did some browsing at a couple of tire stores, walked back to the dealership, and waited another 30 minutes.   When informed the car would not be ready until 5:00 p.m., he rented a car.   An employee of the dealership saw defendant transferring property from his truck into the rental car.   The Parts Manager saw a tan Ford Explorer, identical to defendant's, parked a few spaces from the entrance to the credit union.   Inside the vehicle, he observed a gray or blue colored infant seat.   Another employee testified he paid for service with six $100 bills before 1:00 p.m.

Susan's supervisor called her house at 2:00 p.m. and left a message inquiring why she had not reported to work.

Later that afternoon a self-employed recycler found Susan's purse in a plastic bag in a dumpster.   The purse contained a wallet with Susan's driver's license but no credit cards.   The recycler obtained the senior Avitts' phone number and notified them he had found Susan's purse.

After finishing a small job in Thornton, defendant returned to the dealership about 3:30 p.m.   He stopped by his parents' house and his mother told him Susan's purse had been found.   He retrieved the purse, did not ask what time the purse had been found or where the dumpster was located, and acted annoyed.

At 4:10 p.m., defendant called one of Susan's co-workers to determine if Susan had gone to work.   The co-worker had not arrived home yet.   By 5:00 p.m. when defendant picked up his children at the babysitter's, he was visibly upset about Susan's disappearance.   He called Susan's sister, Sandra Cromwell at 5:15 p.m.   Cromwell advised defendant to call Susan's employer and she volunteered to call the credit union.   Neither of them could locate her.   Defendant called the police around 6:00 p.m., but broke down and began to cry during the call.

Detectives Webb and Berry commenced an investigation.   Defendant and his brother-in-law found the Ford Explorer parked in front of the credit union.   Detective Berry testified the Explorer appeared to have been washed recently.   Detective Webb returned to the dumpster where the recycler found the purse but could not locate the plastic bag he had described.

C. Physical Evidence:  The Circumstantial Evidence of Guilt

1. The Body

The corpse was found on December 19 near a railroad trestle on some farm property in San Joaquin County.   It was not obscured from view.   The victim was 35 years old, Caucasian, 5′61/212″ tall and 138 pounds.   She was dressed in red sweats with clean white tennis shoes.   Although the area was muddy, the body was also clean;  she wore no make-up and there was no blood on her clothing.   She “looked like she had just gotten out of the bath” and the pathologist testified the positioning of the body was consistent with someone who had been placed in a bathtub and had the blood drained from her body.   Even the soles of the shoes were clean.   Rigor mortis was fully developed and, because of the unnatural position of her body on the terrain in which she was found, the pathologist opined she had been moved to the location after rigor mortis had begun.   Additionally, there was only a small amount of blood on the back of her head and little on the ground beneath her.

The victim died of a gunshot wound to the head.   The gun was against the back of the head when fired.   She had an exit wound above the left eyebrow.   The pathologist testified the wound would have bled profusely.

2. The Dumpster

The dumpster was secured and searched.   Most of the refuge consisted of trash from a Mexican restaurant.   Many household items were retrieved as well including:  three towels, disposable diapers with Muppet character designs, an empty can of Enfamil formula, a Lego toy box, a Calgon bath bead box, a video cassette box, a Crest Sparkle toothpaste box and an empty Crest Sparkle toothpaste tube, an Eve cigarette package, a Dixie cup with Looney Toon characters, sanitary napkins in pink envelopes, the center part of the top of a box of Nice and Soft Kleenex tissues, a small battery and a small pair of cotton gloves.   There was no plastic bag, no gun, and no shoes.

3. Defendant's House

In defendant's garbage cans, the police officers found:  disposable diapers with Muppet character designs, small Dixie cups with Looney Toon characters, Lego toys, sanitary napkins in pink wrappers, and a map of Stockton and San Joaquin County.

In the bathroom, the officers seized a new tube of Crest Sparkle toothpaste, an open box of Dixie cups with Looney Toon characters, and two boxes of Calgon bath products.   Evidence of blood traces were found in the bathtub and sink drains and in the drain pipes.

Enfamil formula was found in the kitchen and a Nice and Soft Kleenex tissue box was found in the living room.   The top retrieved from the dumpster microscopically was matched to the box found in the living room.   The towels in the linen closet had the same patterns as those found in the dumpster.   The blood stains tested positive for Type “O” blood, the same type as the victim.   A gray and blue colored infant car seat and disposable diapers with Muppet characters were found in the closet in the nursery.   Legos and a roll of duct tape were found in the garage.

More damaging evidence was found in the bedroom.   A copper colored bullet jacket was found in the carpet between the waterbed and the bedroom wall.   It was subsequently determined to have come from a Winchester brand .38 or .357 caliber copper jacket bullet.   Small red droplets were found on the lamp, telephone, clock radio, small table, and mini blinds above the table.   A criminalist opined that the blood spatter pattern was consistent with someone having been shot in the back of the head with the bullet exiting the front of the head.   Lead fragments were imbedded in the bedroom wall about two and one-half feet from the floor.

Smeared blood stains were found on the surface of the mattress where the head and feet of a person lying on the bed would normally be.   There was no blood found on the carpeting in the bedroom.

4. The Vehicles

The investigating officers seized a .22 caliber rifle from defendant's truck.   The Explorer was thoroughly cleaned with the exception of mud spatters in the wheel wells.   The officers were unable to find a single fingerprint.   They did find a Nice and Soft Kleenex tissue box and two boxes of trash bags with one box open and one bag missing.

5. The Storage Unit

A box of .357 Winchester ammunition was seized from defendant's storage unit.   Six cartridges were missing.   The lead composition of the remaining .357 cartridges were of the same composition as the lead fragments found in the victim's head during the autopsy.   Also found in the unit were a lot of “singles” advertisements and literature describing a variety of “get rich quick” schemes.   There were bills, notices of overdue payments from collection agencies, overdraft notices, and notices of tax liens.

D. The Defense

Defendant testified he did not kill his wife.   He claimed they were happily married, and while he admitted being flirtatious, he denied infidelity.   He described the busy schedule he had on the day Susan was murdered, making it impossible for him to have shot her, bathed her, cleaned the house and the car, and dropped her body in such a remote spot.   Moreover, none of his neighbors heard a gun shot.

He produced many witnesses to attest to his nonviolent character and his devotion to his family.   He admitted the difficulties he had managing some of the financial aspects of his business, but he attributed most of those difficulties to the recession and the cyclical nature of construction work.   He testified he invested the $100,000 in life insurance proceeds in his business.   Many witnesses testified he was emotionally distraught in the days following Susan's disappearance.

He impeached a key prosecution witness, Doreen Ryan, with evidence of her mental illness, drug use, and unfavorable employment history.   There were a few defense witnesses who testified they might have seen a woman matching Susan's description on the 17th and 18th of December.

DISCUSSION

I.

Defendant contends the prosecutor impermissibly used twelve of his thirteen peremptory challenges to exclude women from the jury.¹  (People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748;  Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.)   The trial court denied defendant's Wheeler motion three times, expressly ruling defendant failed to make a prima facie showing of group bias.   Defendant asserts the trial court misunderstood its Wheeler obligation and the record does not support its finding.   Although we agree the court misperceived the fundamental inquiry required by Wheeler, a complete examination of the record discloses ample support for the denial of the motion.

 “It is well settled that the use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias ․ violates both the state and federal Constitutions.”  (People v. Turner (1994) 8 Cal.4th 137, 164, 32 Cal.Rptr.2d 762, 878 P.2d 521.)  “If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court.   First, ․ he should make as complete a record of the circumstances as is feasible.   Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.   Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.  [Citation.]”  (People v. Howard (1992) 1 Cal.4th 1132, 1113–1154, 5 Cal.Rptr.2d 268, 824 P.2d 1315, emphasis in original.)   Once a party who suspects improper use of peremptory challenges has made a prima facie showing, “[t]he burden then shifts to the opponent to show that he or she had genuine nondiscriminatory reasons for the challenges at issue.”  (People v. Montiel (1993) 5 Cal.4th 877, 909, 21 Cal.Rptr.2d 705, 855 P.2d 1277.)

Defendant made several Wheeler motions.   The Attorney General concedes the motions were timely and the exclusion of women constitutes a cognizable group for purposes of the representative cross-section rule.   (People v. Cervantes (1991) 233 Cal.App.3d 323, 334, 284 Cal.Rptr. 410.)   At issue in this case is whether the defendant sustained his initial burden of establishing a prima facie showing of group bias.

 “[W]e must begin by recognizing there is a presumption a party exercising a peremptory challenge is doing so on constitutionally firm ground” (People v. Bernard (1994) 27 Cal.App.4th 458, 465, 32 Cal.Rptr.2d 486) and “[t]he purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her.”  (People v. Jackson (1992) 10 Cal.App.4th 13, 17, 12 Cal.Rptr.2d 541.)   Because a challenge is presumed valid, it was incumbent for the defendant to show “a strong likelihood” that women were challenged because of their group association and not for a genuine, nondiscriminatory purpose.  (People v. Garceau (1993) 6 Cal.4th 140, 171, 24 Cal.Rptr.2d 664, 862 P.2d 664.)

 Defendant's burden was substantial.  “A defendant may not simply rely upon exclusion of the group-associated prospective jurors in establishing ‘a strong likelihood’ of removal because of group bias.  [Citation.]  Rather, a defendant should underscore ‘other relevant circumstances, such as prospective jurors' characteristics, the nature of the prosecutor's voir dire, or the prospective jurors' answers to questions․'  [Citation.]”  (People v. Bernard, supra, 27 Cal.App.4th 458, 466, 32 Cal.Rptr.2d 486.)

A prevalent theme in the scores of cases examining Wheeler challenges is the deferential standard of appellate review.

The trial judge, who observes voir dire, is in the best position “to determine under ‘all the relevant circumstances' of the case whether there was a ‘strong likelihood’ these prospective jurors were being challenged ‘because of their group association.’ ”  (People v. Turner, supra, 8 Cal.4th at p. 168, 32 Cal.Rptr.2d 762, 878 P.2d 521.)   Such a determination calls upon judges' “powers of observation, their understanding of trial techniques, and their broad judicial experience.”  (People v. Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.)  “For these reasons, when a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire.  [Citations.]  As with other findings of fact, we examine the record for evidence to support the trial court's ruling.   Because Wheeler motions call upon trial judges' personal observations, we view their rulings with ‘considerable deference’ on appeal.”  (People v. Howard, supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315;  People v. Garceau, supra, 6 Cal.4th at p. 172, 24 Cal.Rptr.2d 664, 862 P.2d 664;  People v. Bernard, supra, 27 Cal.App.4th at p. 466, 32 Cal.Rptr.2d 486.)

 Hence, “Wheeler motions are factual determinations which are properly reviewed by applying the substantial evidence test.”  (People v. Jackson, supra, 10 Cal.App.4th at p. 21, 12 Cal.Rptr.2d 541.)  “The rule that the trial court's decision on a Wheeler motion will be upheld if supported by substantial evidence is subject to the limitation that the substantial evidence standard obviously has no application when the ruling was not based upon a finding of fact.   Accordingly, in reviewing Wheeler rulings, the appellate court must consider whether the trial court has made a ‘sincere and reasoned determination regarding the genuineness of the prosecutor's reason.’ ”  (Id. at p. 23, 12 Cal.Rptr.2d 541.)

We discern from these cases that the appeal of a Wheeler ruling requires a bifurcated analysis.   If, as these cases suggest, the trial court understood its obligation under Wheeler to assess a prima facie showing to distinguish between specific and group bias, then we accord the trial court's factual finding considerable deference.   Similarly, if the trial court either expressly or impliedly upholds the prima facie showing and proceeds to make a “sincere and reasoned determination,” our only task is to search the record for substantial evidence to sustain the court's finding.   If, however, the trial court did not understand its Wheeler obligation in making its assessment of defendant's prima facie showing, we must review the entire record.  “If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm.  [Citation.]”  (People v. Howard, supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315;  People v. Garceau, supra, 6 Cal.4th at p. 172, 24 Cal.Rptr.2d 664, 862 P.2d 664.)

The trial court did understand that the defendant had an obligation to make a prima facie showing.   In denying the first Wheeler motion, the court expressly found the defendant had not sustained his burden.   After providing the prosecution the opportunity to respond to the motion the court stated:  “You know, you are correct on the law, Counsel, that it is a cognizable and recognizable group.  [¶]  But there are cases that justifiably, because of the nature of the case, you may want more women;  and somebody else may want a combination of things.  [¶]  And there may be things that one of the women says or one of the men says that for a variety of different reasons they are excused.  [¶]  And I'm not satisfied at this point that you've made a prima facie showing, and I'll deny your motion.”

When defendant renewed the motion, the court responded:  “So that it's very clear, after you raised your concerns about the fact that Mr. Testa excused some female jurors, looking back in the record, it would have been impossible, hardly, not to.  [¶]  The jurors—the jury has been so overweighted with female jurors that it would statistically—your motion could not have any foundation.  [¶]  At an isolated look at it, it might.   In fact, when we ended up out here, I looked at the jurors, and I counted when I went outside into the courtroom after you had made your motion;  and there were nine female and three male jurors sitting on the jury.   So it's a nonsense motion.”

Defendant made a third Wheeler objection to the composition of the jury.   Again, the trial court found defendant failed to make the requisite prima facie showing of group bias.   The court concluded:  “If my count is correct, we have seven women on the jury right now and five men.  [¶]  It's the makeup of the jury that is—the cases go along where one consistently keeps kicking off the only black, the only Mexican, the only Indian.   And there's only a few women.   They kick off the women, or they kick off all the men.  [¶]  This case has a very fair—in fact, if you wanted less women, you wouldn't certainly pick the jury that's up there now.   There's seven out of the 12 that are women.  [¶]  The challenge is denied.”

Defendant argues the trial court failed to appreciate its responsibility under Wheeler to scrutinize the prima facie showing and betrayed fundamental principles designed to assure a cross-representational jury.   We agree.   The court's comments reflect those basic misconceptions.

 The trial court was mistaken in its belief a party could exclude jurors solely on the basis of gender in some cases and that the final composition of the jury could justify the improper challenges.  “California law makes clear that constitutional violation may arise even when only one of several members of a ‘cognizable’ group was improperly excluded.  [Citation.]  Federal authority also suggest that individual exclusions on racial grounds may be improper.”  (People v. Montiel, supra, 5 Cal.4th at p. 909, 21 Cal.Rptr.2d 705, 855 P.2d 1277.)   Thus, the court's suggestion that blanket gender exclusion was justifiable in certain cases was patently erroneous.

 Nor does a post hoc statistical sampling of a jury obliterate the unconstitutional exclusion of jurors.   A similar contention was raised and rejected in U.S. v. Bishop (9th Cir.1992) 959 F.2d 820.   The court wrote:  “In this case, the trial judge apparently believed that, the issue of discriminatory intent notwithstanding, Batson is satisfied if a ‘representative jury’ remains after jury selection—i.e., if the percentage of blacks on the jury panel is at least as great as the percentage of blacks on the original venire․  [¶]  It is true that representativity and, more generally, a prosecutor's acceptance of black jurors, are factors that a trial judge may take as an indication of non-discriminatory motive.  [Citation.]  However, there is a critical distinction between using proportional representation as evidence of the government's sincerity and using it to offset a constitutional violation, thereby rendering the violation somehow harmless.   The latter scenario collides with the fundamental principle that ‘under Batson, the striking of one black juror for a racial reason violates the Equal Protection Clause.’  [Citation.]”  (Id. at p. 827, emphasis in original.)

We agree with defendant the trial court failed to undertake a sincere and informed evaluation of his prima facie showing of group bias.   Consequently, the assumptions underlying a deferential standard of review do not apply.   The trial court did not base its finding on an assessment of the individual biases of the jurors or of the motivation of the prosecutor but rather on its erroneous notion of selective gender bias.

Defendant urges us to consider the recent case from the Fifth District, People v. Tapia (1994) 25 Cal.App.4th 984, 30 Cal.Rptr.2d 851, in which the trial court also failed to understand its Wheeler obligation.   There is a fundamental and compelling distinction between Tapia and the case before us.   In Tapia, it was “undisputed that the trial court made an implied finding that defense counsel had made the required prima facie showing when the court inquired about the prosecutor's justifications for the three contested challenges.”  (Id. at p. 1014, fn. 9, 30 Cal.Rptr.2d 851.)   Here, the trial court expressly found the defendant had not made the requisite prima facie showing.   This distinction has considerable bearing on the scope of our review.

 Once the defendant sustains his or her burden of making a prima facie showing of group bias, the burden of proof shifts to the prosecutor to justify the challenges.   As Tapia dramatically illustrates, the trial court must then make a “sincere and reasoned determination regarding the genuiness of the prosecutor's reason.”  (Id. at p. 1014, 30 Cal.Rptr.2d 851.)   Moreover, if the trial court fails to evaluate the legitimacy of the prosecutor's purported justifications, the ruling cannot be upheld.  (Ibid.;  People v. Jackson, supra, 10 Cal.App.4th at p. 23, 10 Cal.Rptr.2d 541.)

Neither People v. Tapia, supra, nor People v. Jackson, supra, however, address the issue presented here.   Unlike the circumstances presented in either Tapia or Jackson, there was no finding of a prima facie showing of group bias.   Although defendant bore the burden of demonstrating a strong likelihood of impermissible exclusion, the trial court misperceived its Wheeler obligation.   In this context, we are left with the onerous task of reviewing the entire record to independently determine whether defendant sustained his burden of proof.   We need not reverse a judgment if, in spite of the trial court's misunderstanding, defendant did not make a threshold showing there was a strong likelihood women jurors were excluded because of their group affiliation.

 Defendant attaches the greatest significance to “the sheer numerical weight of the prosecutor's challenges.”   At the time of the first Wheeler challenge, the prosecutor had used five of his six challenges against women.   Two additional challenges to women precipitated the second Wheeler motion.   The prosecutor's final four challenges were exercised to excuse women jurors as well.   The final panel consisted of seven women and five men.

Defendant's burden to establish prima facie discrimination is indeed a weighty one.   The cases echo the same requirement:  defendant must demonstrate a strong likelihood from all the circumstances that the prosecutor exercised peremptory challenges for impermissible reasons.   Numbers alone do not sustain that burden.   Although defendant presents us with an impressive array of statistical information including the percentage of women on the panel, the percentage of women challenged, and the percentage of women in the jury box when the challenges were exercised, he places far too great an emphasis on the statistics and far too little attention to “all the circumstances” of the voir dire examination.

The exercise of twelve of thirteen challenges to women does raise Wheeler eyebrows, but alone does not establish a prima facie showing of group bias.   We look for other relevant evidence.   We must determine whether the excluded jurors share only one characteristic, that of being women, but in other respects are as heterogeneous as the community as a whole.  (People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)   The record discloses many shared traits unrelated to gender and potentially offensive to a prosecutor.

Defendant concedes that three of the challenges were understandable and another three were “borderline.”   A “borderline” showing does not constitute the requisite strong likelihood of group bias.   Hence, we need only examine the remaining six women jurors excused by the prosecutor.

Jurors Meade, Sample, Griffin, and Louie owned guns.   Griffin not only owned guns, but worked in her father's gun shop.   Since the defendant owned guns, the prosecutor may have been searching for jurors with a disinclination or bias toward gun ownership.   The defense exercised several challenges to jurors professing an overt aversion toward owning guns.   Gun ownership is one factor indicative of a specific, rather than group, bias.   But there were other relevant circumstances.

Five of the six jurors were involved, either occupationally or avocationally, in social justice type groups.   Meade, a nurse, was active in church ministries, particularly in helping stepfamilies.   Griffin was a nursing assistant, Zeller was a director for Campfire Girls and Boys, and Sample was a member of the Association for Retired Persons.   Louie, a baker, disclosed she had participated in a recent union dispute.   A prosecutor might be hesitant to include jurors with a demonstrated commitment to helping people.   Their individual affiliations may have indicated the type of propensity toward sympathy and understanding which rattles a prosecutor's nerves.

Moreover, several of the women who either owned a gun or participated in “helping groups” disclosed additional information distasteful to the prosecutor.   Both Meade and Sample had served on prior juries.   Zellers knew a potential witness and Munoz had prior knowledge of the crime through the press.   Moreover, Munoz worked for a civil law firm.   Her exposure to lawyers unschooled in the vagaries of the criminal justice system might be unsatisfactory to a prosecutor.

Our analysis is fraught with raw speculation.   Since we are reviewing a prima facie showing only, the prosecutor was not required to offer any justification for his challenges.   Yet we must uphold the ruling as long as there might have been a justifiable rationale for the challenge.   Hence, we are forced into the uncomfortable position of postulating hypothetical reasons a prosecutor might have challenged each juror.   We engage in this exercise not to vindicate the prosecutor, but to determine if the defendant met his burden of proof.   Had he articulated with some specificity the circumstances upon which he was making his Wheeler challenge, we would not be forced to comb the record for evidence of gender bias and hypothecate why jurors were excluded.   We reject defendant's self-serving analysis belatedly offered on appeal that each of the challenged jurors was ideal from a prosecutor's perspective.   Here we are satisfied that there were a multitude of specific reasons to challenge each juror unrelated to gender.   Moreover, we consider circumstances other than our speculative comparative study.

The prosecutor accepted the jury when he passed on four separate occasions.   At the time of his second pass, the jury consisted of nine women and three men.   The jury consisted of eight women and four men when he passed the third and fourth time.  “[T]he passing of certain jurors may be an indication of the prosecutor's good faith in exercising his peremptories.”   (People v. Snow (1987) 44 Cal.3d 216, 225, 242 Cal.Rptr. 477, 746 P.2d 452.)   Of the twelve women excused, all but four were immediately replaced by other women and when the prosecutor excused a male, he was replaced by a woman.   Finally, we note the prosecutor had seven peremptory challenges remaining when the jury was impaneled.   In sum, we discern no pattern of gender discrimination.   If the prosecutor intended to minimize the number of women jurors, he chose an odd strategy to achieve his objective.

Additionally, there is nothing in the prosecutor's voir dire of the jurors from which we can infer a discriminatory motive.   He canvassed the jurors sitting in the box asking sporadic questions of both men and women.   Defendant has not pointed to any particular questions or statements by the prosecutor reflecting an underlying group bias.   Rather defendant relies exclusively on the absence of an overt justification for exercising the challenges.   We conclude defendant has simply failed to sustain his burden of demonstrating gender bias.

Finally, we must express our reservation regarding the rather dubious motive attributed to the prosecutor.   We have been advised to consider the race or ethnicity of a defendant vis-a-vis the members of the excluded group, the victim, and the remaining jurors.   There is some merit to the Attorney General's argument that if the prosecutor was exercising his challenges based on gender stereotypes, one would expect him to load the jury with women, not to exclude them.   But defendant suggests the prosecutor may have wanted to exclude women because defense counsel was a woman.   At least as probable would be the inclusion of women who might identify with the victim.   Again we have sunk into pure conjecture.   We have no means of determining on this record the veracity of the prosecutor's motives.   But that is not our role.   Defendant has the burden of proving a substantial likelihood of group bias and we simply conclude that, having reviewed all the circumstances disclosed in this record, there is no substantial likelihood women jurors were excused solely on the basis of gender.

II.–V.***

The judgment is affirmed.

FOOTNOTES

1.   A fourth Wheeler challenge was made by the defense during the selection of alternate jurors.   Consequently, a total of 16 of 18 peremptory challenges were used by the prosecution to excuse women.   The fourth Wheeler motion was also denied.   In later denying defendant's motion for a new trial, the court expressly reiterated that a prima facie showing of systematic exclusion had never been made.   Defendant offers nothing more to bolster a prima facie showing during the selection of the alternates than he did in selecting the original panel.   We decline his invitation on rehearing to reverse the issue or to add to our protracted analysis.

FOOTNOTE.   See footnote *, ante

RAYE, Associate Justice.

SPARKS, Acting P.J., and SIMS, J., concur.