People v. Espiritu

Filed 4/13/26 (see dissenting opinion)




                           CERTIFIED FOR PUBLICATION


        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                         DIVISION THREE


 THE PEOPLE,

     Plaintiff and Respondent,                      G063841

         v.                                         (Super. Ct. No. 15CF0429)

 JOSE GERARDO ESPIRITU,                             OPINION

     Defendant and Appellant.



               Appeal from a judgment of the Superior Court of Orange County,
Michael A. Leversen, Judge. Reversed and remanded. Request for judicial
notice. Denied.
               Justin Behravesh, under appointment by the Court of Appeal, for
Defendant and Appellant.
               Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Robin
Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff
and Respondent.


                                               1
            Sentenced to almost three decades in prison after a jury convicted
him of various sexual assault crimes against a minor, defendant Jose
Gerardo Espiritu appeals from the ensuing judgment. His sole argument on
appeal concerns the jury selection process, during which defense counsel
objected under Code of Civil Procedure section 231.7 to the prosecutor’s
exercise of a peremptory challenge against someone who identified
themselves as a nurse. 1 The trial court overruled the objection, which
Espiritu contends was error because the reason given by the prosecutor—that
the prospective juror was a nurse—was presumptively invalid under
subdivision (e)(10) of section 231.7 and the presumption was not overcome.
            Because Espiritu’s counsel did not raise the potential
presumptive invalidity below, the primary question we must decide is
whether the issue is forfeited. We conclude it was not. There is no indication
in the record the trial court even considered whether the prosecutor’s stated
reason was potentially subject to a presumption of invalidity. Finding
forfeiture under such circumstances would run counter to the comprehensive
scheme adopted by the Legislature and the purpose underlying it. Part and
parcel of a trial court’s obligation to evaluate proffered reasons for the
exercise of a peremptory challenge is to first make a meaningful inquiry into
whether any of the proffered reasons may be presumptively invalid, ensuring
the record reflects its process. Because the court in this case failed to take
that critical, legislatively mandated step, we must reverse the judgment and
remand the matter for a new trial.



            1 All further statutory references are to the Code of Civil

Procedure unless otherwise stated.

                                        2
                                     FACTS
                                        I.
                                  THE CHARGES

            In March 2015, Espiritu was arrested and charged with
committing various sexual crimes against a 16-year-old girl. A few days after
his initial arraignment, he was released on bail. An amended information
charged him with forcible rape (Pen. Code, § 261, subd. (a)(2)), forcible
copulation of a minor 14 years old or older (id., § 288a, subd. (c)(2)(C)), and
sodomy, by force, of a minor 14 years old or older (id., § 286, subd. (c)(2)(C)).
It further alleged the victim of the forcible rape was a minor 14 years old or
older, and all the offenses were not probation eligible.
            After pleading not guilty and being held to the charges following
a preliminary hearing, Espiritu failed to appear for an arraignment on
amended charges and the trial court issued a bench warrant. Approximately
six and a half years later, the United States Marshal Service delivered
Espiritu to local law enforcement at Los Angeles International Airport and
criminal proceedings against him resumed.
                                     II.
                                JURY SELECTION

            During jury selection, the court asked questions to prospective
jurors and then turned questioning over to the prosecution and defense
counsel. One of the jurors questioned was Prospective Juror Number 183
(PJ183). The questioning came after defense counsel exercised peremptory
challenges against seven jurors and the prosecutor did the same against
three jurors, all without objection from the other side.
            During preliminary questioning by the court, PJ183 stated she
was not married, had no children, and had a bachelor’s degree in nursing.

                                        3
Because she was a newly graduated nurse, she was “not quite working in
nursing [yet],” but was working in health care. She indicated her spouse was
also a newly graduated nurse.
            Regarding experiences with law enforcement, she explained her
father was convicted of murder related charges when she was 13 years old
and sentenced to life in prison. She said she talks with him on a weekly basis
and he expressed to her feeling “he was mistreated and that his trial wasn’t
fair for him.” When asked by the court if she could nevertheless be a fair and
impartial juror, she responded, “I think that I could handle it.” Defense
counsel later further inquired on the topic. PJ183 confirmed she would look
at and analyze the evidence in a fair and impartial manner, and she stated
she did not think she had any prejudices or biases vis-à-vis the prosecution or
defense counsel that would impact her ability to do so. She confirmed the
same in response to questions from the prosecutor.
            The only other line of questioning directed to PJ183 came from
the prosecutor. Specifically, the prosecutor inquired about her mention of
nursing. PJ183 explained she graduated in October and “hopefully [would] be
starting in March” with “medical surgical, basic nursing.” She said she was
not currently working in a hospital but instead was working in admissions in
a medical office. When asked whether sexual assault exams were discussed in
nursing school, PJ183 said they were “but not in detail.” She confirmed never
having performed one or seen one performed. In addition, she confirmed she
was familiar with human anatomy and “the way things are supposed to be
and when they don’t look the way they are supposed to be[.]”
            After the prosecutor asked a couple of questions to two other
jurors, the court, outside the presence of the prospective jurors, inquired
about challenges for cause and peremptory challenges. Defense counsel and

                                       4
the prosecutor agreed on one cause challenge. The prosecutor then exercised
a peremptory challenge to excuse PJ183. Defense counsel objected and the
following exchange took place:
            “[Defense Counsel]: I would—dang. I didn’t bring my thing to
have the Penal Code section --
            “[Prosecutor]: CCP 231.7.
            “The Court: Code of Civil Procedure.
            “[Defense Counsel]: Yes.
            “[Prosecutor]: Reason I’m kicking her is because she is a nurse.
            “[Defense Counsel]: So I would make my record for I guess—
kicking her because she is a nurse. For me, 187 [sic] based on the fact that
she has a close loved one who is incarcerated and is doing life. She did say
she could be fair and impartial and understand the importance of having a
fair and impartial jury to weigh the evidence.
            “The Court: Well, his stated grounds is all I’m going on[.] [S]he
stated grounds, medical professional through the entire voir dire process. I
believe that to be true. [¶] Do you have any recollection of a medical
professional that wasn’t released?
            “[Defense Counsel]: I guess it depends on what he is considering
a medical professional because we do have [Prospective] Juror Number 114
who is an occupational therapist.
            “The Court: That’s a little different. [¶] All right. I will grant your
preempt. Your record was made.”
            After defense counsel exercised one additional peremptory
challenge, a jury and alternates were sworn.




                                        5
                                       III.
                          CONVICTION AND JUDGMENT

            The jury found Espiritu guilty on all counts and found true the
age related allegation linked to the forcible rape count. Espiritu waived his
right to a jury trial on the alleged vulnerable victim and position of trust
aggravating factors. After taking evidence and hearing the parties’
arguments, the court found the aggravating factors to be true beyond a
reasonable doubt. The court sentenced Espiritu to the middle term on each
count, for a total determinate term of 26 years in prison.
            Espiritu timely appealed.
                                 DISCUSSION
            Espiritu’s sole argument on appeal concerns the trial court’s
overruling of his objection to the prosecution’s exercise of a peremptory
challenge against PJ183. He argues the reason given by the prosecutor for
exercising the challenge is presumptively invalid under subdivision (e)(10) of
section 231.7 because nursing is a field disproportionately occupied by
women. So his argument goes, the trial court failed to identify it as such and
the prosecutor made no attempt to meet its burden to overcome the
presumption, meaning the trial court was required to sustain his objection
and its error in failing to do so requires reversal. The Attorney General
argues Espiritu forfeited his right to argue about the presumptive invalidity
of the prosecutor’s reason by failing to make the argument below. We find no
forfeiture and conclude the trial court erred. 2


            2 Because we find no forfeiture, we do not address Espiritu’s

alternative argument, that his trial counsel provided ineffective assistance by
failing to expressly identify the presumptive invalidity of the prosecutor’s
stated reason for the peremptory challenge.

                                        6
                                         I.
                           SECTION 231.7, GENERALLY

            Section 231.7, subdivision (a), 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.”
            The statute specifies the process that must be followed if a party
or the trial court objects to the use of a peremptory challenge. First, “the
party exercising the peremptory challenge shall state the reasons the
peremptory challenge has been exercised.” (§ 231.7, subd. (c).) Second, the
trial court determines whether any of the provided reasons is presumptively
invalid, and, if so, whether the presumption is overcome under the
circumstances. (Id., subds. (e) & (g).) Third, if there is no presumption of
invalidity or any presumption is overcome, the trial court “evaluate[s] the
reasons actually given to justify the peremptory challenge in light of the
totality of the circumstances.” (Id., subd. (d)(1).) “If the court determines
there is a substantial likelihood that an objectively reasonable person would
view race, ethnicity, gender, gender identity, sexual orientation, national
origin, or religious affiliation, or perceived membership in any of those
groups, as a factor in the use of the peremptory challenge, then the objection
shall be sustained.” (Ibid.) Because the statute is aimed at both targeted and
unconscious bias, “an objectively reasonable person is aware that unconscious
bias, in addition to purposeful discrimination, have resulted in the unfair
exclusion of potential jurors in the State of California.” (Id., subd. (d)(2)(A).)
In a similar vein, “[t]he court need not find purposeful discrimination to



                                         7
sustain the objection.” (Id., subd. (d)(1).) When the trial court makes a ruling,
it must “explain the reasons for its ruling on the record.” (Ibid.)
              Two different subdivisions of the statute provide lists of
presumptively invalid reasons for exercising a peremptory challenge and
specify the processes that must be followed if such reasons are asserted in a
section 231.7 scenario. (Id., subds. (e) & (g).) Relevant here, subdivision (e)
lists 13 presumptively invalid reasons, one of which is “[e]mployment in a
field that is disproportionately occupied by members [of a group] listed in
subdivision (a) [of the statute] or that serves a population disproportionately
comprised of members of a group or groups listed in subdivision (a).” (Id.,
subd. (e)(10).) The party exercising the preemptory challenge may overcome
the presumption by providing clear and convincing evidence showing: (1) “an
objectively reasonable person would view the rationale as unrelated to a
prospective juror’s race, ethnicity, gender, gender identity, sexual orientation,
national origin, or religious affiliation, or perceived membership in any of
those groups”; and (2) “the reasons articulated bear on the prospective juror’s
ability to be fair and impartial in the case.” (Id., subd. (e).)
              On appeal, we review the overruling of a section 231.7 objection
de novo, “with the trial court’s express factual findings reviewed for
substantial evidence.” (Id., subd. (j).) We may only consider those reasons
given by the party exercising the peremptory challenge and those factual
findings expressly made by the trial court. (Ibid.) If we conclude the trial
court erred by overruling an objection, “that error shall be deemed
prejudicial, the judgment shall be reversed, and the case remanded for a new
trial.” (Ibid.)




                                          8
                                        II.
                                    ANALYSIS

            The Attorney General argues Espiritu’s failure to raise the
presumptively invalid argument below precludes him from raising the issue
for the first time on appeal. It notes that because he failed to bring to the
trial court’s attention the employment-related presumptively invalid
category, the record is devoid of any evidence to support his claim that
nursing is a profession disproportionately occupied by women. Due to the
allegedly inadequate record for review, the Attorney General urges us to
establish the following rule: “where . . . a specific aspect of the appellate claim
under section 231.7 requires factual development in the trial court—such as
whether a prospective juror’s specific employment is disproportionately
occupied by a specific group of people—it is incumbent upon the objecting
party to raise that issue in the trial court” or the issue will be deemed
forfeited on appeal. We are not persuaded forfeiture applies under the
circumstances.
            The general forfeiture doctrine and its basic rationale is well-
established. “‘““An appellate court will ordinarily not consider procedural
defects or erroneous rulings, in connection with relief sought or defenses
asserted, where an objection could have been, but was not, presented to the
lower court by some appropriate method.””’” (People v. Saunders (1993) 5
Cal.4th 580, 589–590.) “‘“‘In the hurry of the trial many things may be, and
are, overlooked which would readily have been rectified had attention been
called to them. [Thus,] [t]he law casts upon the party the duty of looking after
his legal rights and of calling the judge’s attention to any infringement of
them. If any other rule were to obtain, the party would in most cases be
careful to be silent as to his objections until it would be too late to obviate

                                         9
them, and the result would be that few judgments would stand the test of an
appeal.’”’” (Id. at p. 590.) Stated differently, the purpose of the doctrine is to
avoid “unfair[ness] to the trial judge and to the adverse party” by
“‘“encourag[ing] a defendant to bring errors to the attention of the trial court,
so that they may be corrected or avoided and a fair trial had.”’” (Ibid.)
            “Our Supreme Court has . . . cautioned, however, that the
forfeiture doctrine is ‘not automatic.’” (In re L.C. (2023) 90 Cal.App.5th 728,
738 (L.C.), citing In re S.B. (2004) 32 Cal.4th 1287, 1293.) Further, courts
have recognized there are circumstances in which it should not apply. (See,
e.g., In re Sheena K. (2007) 40 Cal.4th 875, 889 [pure question of law]; In re
S.B., at p. 1293 [important legal issue]; In re Frank R. (2011) 192 Cal.App.4th
532, 539 [conflict with due process].)
             Here, we are not confronted with a situation in which a
defendant failed to object at all under the applicable statute. It is undisputed
and clear from the record that defense counsel objected under section 231.7
after the prosecutor exercised its peremptory challenge to excuse PJ183.
Instead, we are faced with the question of whether the initial objection made
by defense counsel was sufficient to preserve an argument alleging error
based on a category of presumptively invalid reasons not brought to the trial
court’s attention by defense counsel. Under the circumstances, we find it was.
             “As a doctrine of largely judicial creation [citation], forfeiture
should not apply when it would be incompatible with the fundamental
purposes of a statutory scheme.” (L.C., supra, 90 Cal.App.5th at p. 738.)
             Understanding the fundamental purposes of section 231.7
requires an understanding of peremptory challenges and the law applicable
to peremptory challenge objections before section 231.7 took effect in 2022.
(Stats. 2020, ch. 318.) “Unlike challenges for cause based on a juror’s

                                         10
incapacity, relationship to the parties, bias, or prejudice (see §§ 228, 229),
peremptory challenges to excuse potential jurors were ‘designed to be used
“for any reason, or no reason at all.”’” (People v. Uriostegui (2024) 101
Cal.App.5th 271, 277 (Uriostegui).) “Prior to January 1, 2022, trial courts
examined peremptory challenges under the three-step inquiry established by
Batson v. Kentucky (1986) 476 U.S. 79 [(Batson)], and People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler), overruled in part in Johnson v. California
(2005) 545 U.S. 162. . . . Under the prior three-step inquiry, the party
objecting to a peremptory challenge had to first demonstrate a prima facie
case of discriminatory purpose. [Citation.] The burden then shifted to the
party exercising the peremptory challenge to provide a permissible,
nondiscriminatory explanation. [Citation.] The third step required the trial
court to decide if ‘purposeful’ discrimination motivated the peremptory
challenge. [Citation.] Appellate courts reviewing rulings on [Batson/Wheeler]
objections presumed that prosecutors properly used peremptory challenges.”
(Id. at pp. 277–278.)
            Though some believed the Batson/Wheeler inquiry helped reduce
overt intentional discrimination, many acknowledged it presented difficult
and often impossible challenges for the courts, including determining an
attorney’s true motivation, which led to a general feeling that the process was
not effective in combating purposeful discrimination. (See People v. Harris
(2013) 57 Cal.4th 804, 865–866 (conc. opn. of Liu, J.); Page, Batson’s Blind-
Spot: Unconscious Stereotyping and the Peremptory Challenge (2005) 85 B.U.
L.Rev. 155, 178–179 & fn. 102 [providing extensive list of scholarly and
judicial criticism of Batson/Wheeler process].) In addition, courts and others
acknowledged it “plainly fail[ed] to protect against—and likely facilitate[d]—
implicit bias.” (People v. Bryant (2019) 40 Cal.App.5th 525, 545 (conc. opn. of

                                        11
Humes, P.J.); see also Batson, supra, 476 U.S. at pp. 106–107 (conc. opn. of
Marshall, J.); Page, at pp. 160–161; Graffy et al., First Twelve in the Box:
Implicit Bias Driving the Peremptory Challenge to the Point of Extinction
(2024) 102 Or. L.Rev. 355, 377–378.)
            Recognizing the shortcomings of Batson/Wheeler, the Legislature
enacted section 231.7. (Stats. 2020, ch. 318, § 1(b); see People v. Caparrotta
(2024) 103 Cal.App.5th 874, 895 (Caparrotta) [enactment of § 231.7 was
response to perceived problems with Batson/Wheeler process].) In doing so, it
expressed an intent “to put into place an effective procedure for eliminating
the unfair exclusion of potential jurors based on race, ethnicity, gender,
gender identity, sexual orientation, national origin, or religious affiliation, or
perceived membership in any of those groups, through the exercise of
peremptory challenges,” whether resulting from conscious or unconscious
bias. (Stats. 2020, ch. 318, § 1(a).) Among the procedural facets of the statute
identified in the legislative history as “major provisions” or “primary
changes” from then existing law are: (1) the trial court’s own independent
ability to object to the use of a peremptory challenge; (2) the lack of an initial
prima facie showing requirement on the objecting party; (3) the requirement
that the party exercising the peremptory challenge provide their reasons
whenever an objection is made under the statute; (4) the mandated focus by
the courts on only the reasons provided; and (5) the presumptive invalidity of
certain reasons, which may only be overcome with a specified showing by the
party exercising the peremptory challenge. (Assem. Floor Analysis, Conc.
Sen. Amends. to Assem. Bill No. 3070 (2020–2021 Reg. Sess.) as amended
Aug. 21, 2020, pp. 1 & 3–4.)
            With this background in mind, we turn to the statutory language
and the circumstances before us. Consistent with legislative intent, the

                                        12
statute provides a comprehensive process for parties and courts to follow.
Absent an objection initiated by the trial court, subdivision (b) of section
231.7 makes clear a party must object to the use of a peremptory challenge
which it perceives to be prohibited by the statute in order to trigger review
pursuant to it. Beyond that, the statutory language does not expressly impose
any other obligation on the objecting party. All other expressly assigned
obligations belong to the party exercising the peremptory challenge or the
trial court. Specifically, the party exercising the challenge is charged with
explaining its reason(s) and overcoming the presumptive invalidity of any
reason. (Id., subds. (c), (e), (g)(2).) And the court is tasked with evaluating the
reasons using specified standards, ruling on the objection, explaining the
reasons for its ruling on the record, and determining the proper outcome if it
sustains the objection. (Id., subds. (d)(1), (f), (g)(2), (h).) This overall
assignment of obligations is consistent with the Legislature’s intended move
away from the burden shifting and largely deferential evaluation which
existed under the Batson/Wheeler framework. (See Caparrotta, supra, 103
Cal.App.5th at p. 895 [through § 231.7, “Legislature hoped to overcome
‘deficiencies’ in the [Batson/Wheeler] process”].)
             The Attorney General’s forfeiture argument asks us to place on
the objecting party the initial onus of raising the possibility of a
presumptively invalid reason. Doing so would be inconsistent with the
detailed process established by the Legislature and its purposeful shift away
from an initial affirmative burden on the objecting party. After a responding
party offers its reasons for exercising a peremptory challenge, the trial court
is tasked with “evaluat[ing]” them “in light of the totality of the
circumstances” to determine whether “there is a substantial likelihood that
an objectively reasonable person would view [membership or perceived

                                          13
membership in a listed group] as a factor in the use of the peremptory
challenge.” (§ 231.7, subd. (d).) Although not expressly stated in the statute,
it logically flows from the established scheme that part of the evaluation is to
first consider whether any of the reasons fall into a presumptively invalid
category listed in subdivision (e) or subdivision (g) of section 231.7. (See
People v. Aguilar (2026) 118 Cal.App.5th 1, 11 [rejecting forfeiture argument
grounded in defense counsel’s failure to make targeted objection specifically
referring to presumptively invalid category]; Caparrotta, supra, 103
Cal.App.5th at p. 893 [after party objects under § 237.1, it is trial court’s
responsibility to apply correct procedure to decide whether to sustain
objection].) Stated differently, the presumptively invalid categories embody
circumstances in which the Legislature has declared the court must presume
an objectively reasonable person would view membership or perceived
membership in a listed group as a factor in the use of the peremptory
challenge, unless the party exercising the challenge overcomes the
presumption in the statutorily specified manner.
             In considering whether any of the reasons fall into a
presumptively invalid category, the court may find it helpful to ask the
parties for their position on the issue. Regardless of whether it does so, it is
incumbent on the court to make a record demonstrating a meaningful inquiry
into whether any of the proffered reasons may be presumptively invalid.
Although it may be well-advised for an objecting party to speak up and
identify a potential presumptive invalidity notwithstanding a court’s failure
to consider the possibility, forfeiture does not follow from an objecting party’s
silence under such circumstances. The objecting party’s initial objection




                                        14
under this statute preserves the right to challenge the court’s failure to
consider the presumptively invalid categories. 3
            The Attorney General emphasizes that the presumptively invalid
category identified by Espiritu on appeal may require factual development in
the trial court beyond the mere circumstances of voir dire questions and
answers. While that may be true, we do not agree it impacts the forfeiture
analysis. By creating a comprehensive structure for evaluating the exercise of
peremptory challenges and deeming the erroneous denial of an objection to be
reversible per se (§ 231.7, subd. (j)), the Legislature emphasized the
importance process plays in the evaluation. Here, nothing in the record
demonstrates the trial court considered whether the reason offered by the
prosecutor was presumptively invalid. That procedural failure requires
reversal of the judgment and remand for a new trial. 4


            3 We leave for another day whether an objecting party may forfeit

an argument about presumptive invalidity in other circumstances, including,
for example, by remaining silent or denying the applicability of any
presumptively invalid category when expressly asked about such matters, or
by failing to mention a particular category when presumptively invalid
matters are being discussed. (See, e.g., People v. Garcia (2025) 115
Cal.App.5th 92, 106 (Garcia) [finding forfeiture where prosecutor proactively
defended against presumptive invalidity and trial court expressly determined
no presumption was implicated, but defense counsel did not object or argue
otherwise].)
             4 The Attorney General does not challenge the constitutionality of

any portion of section 231.7, including subdivision (j) which mandates
automatic reversal and remand for a new trial when an appellate court
determines an objection to a peremptory challenge was erroneously denied.
Because failure to follow the correct process mandates reversal in this case,
we do not reach the parties’ dispute concerning whether the data offered by
Espiritu on appeal, of which he requests we take judicial notice, is sufficient
to establish that the nursing profession is disproportionately occupied by
women. For the same reason, we deny Espiritu’s request for judicial notice.

                                       15
            We find inapposite the two cases cited by the Attorney General in
which a defendant was deemed to have forfeited a section 231.7 related
argument. One did not involve any argument, in the trial court or on appeal,
about a presumptively invalid category. (People v. Hernandez (2025) 115
Cal.App.5th 256, 267–268 [identifying objection in trial court as based on
prospective juror’s youth forfeits ability to argue peremptory challenge was
wrongly exercised based on Hispanic ethnicity].) And while the other found
forfeiture of an argument regarding presumptive invalidity, it did so in
circumstances where the trial court expressly considered and determined
none of the proffered reasons were presumptively invalid. (Garcia, supra, 115
Cal.App.5th at p. 106.) Put simply, neither of the cases involved a trial court’s
failure to consider whether the reasons given by the party exercising a
peremptory challenge were potentially subject to a presumption of invalidity.
            We recognize jury selection is a fluid and dynamic process in
which all involved, including the trial court, receive a plethora of
informational input from various sources and counsel is often faced with
making quick strategic decisions. But the Legislature has made clear its
intent to eliminate the exclusion of jurors based on purposeful discrimination
and unconscious bias, and it has developed a comprehensive analytical
framework for achieving that goal. The trial court and all counsel must take
the steps necessary to ensure jury selection runs efficiently and smoothly
without compromising the integrity of the process and the legislative aim of
section 231.7.




                                       16
                           DISPOSITION
         The judgment is reversed and the case is remanded for a new
trial.



                                      DELANEY, J.


I CONCUR:




SANCHEZ, J.




                                 17
Moore, J., Dissenting.
             On March 1, 2015, defendant Jose Gerardo Espiritu raped and
sodomized a 16-year-old girl, causing injuries to her vagina and anus. The
victim reported the crime the day it happened, and Espiritu’s DNA was
located on her breasts and genitals. Police arrested Espiritu that same day,
and the victim’s DNA was located on his penis.
             After the victim testified at trial, a jury found Espiritu guilty of
forcible rape, forcible copulation of a minor, and forcible sodomy of a minor.
The trial court imposed a determinate sentence of 26 years in state prison.
             I agree with the majority that the trial court committed an error
by erroneously denying Espiritu’s objection to the prosecutor’s use of a
peremptory challenge during jury selection. (See Code Civ. Proc., § 231.7.) 1
But under our state Constitution, that is not supposed to end our analysis,
we are also supposed to determine whether the error was prejudicial:
             “No judgment shall be set aside . . . unless, after an examination
of the entire cause, including the evidence, the court shall be of the opinion
that the error complained of has resulted in a miscarriage of justice.” (Cal.
Const., art. VI, § 13, italics added.)
             Here, if we analyzed for prejudice and determined that the trial
court’s error was not prejudicial, then the victim would not have to go
through the shame and humiliation of testifying before another group of total
strangers at a new trial. But under section 231.7, the Legislature does not
allow us to fulfill our constitutionally required obligation:
             “Should the appellate court determine that the objection [to the


             1 Further undesignated statutory references are to the Code of


Civil Procedure.

                                         1
peremptory challenge] was erroneously denied, that error shall be deemed
prejudicial, the judgment shall be reversed, and the case remanded for a new
trial.” (§ 231.7, subd. (j), italics added.)
             In short, I respectfully dissent because:
             “The Legislature has neither the right, nor the power, to amend
the California Constitution by statute.” (People v. Garcia (2025) 114
Cal.App.5th 1154, 1167 (conc. opn. of Yegan, J.) review granted, Dec. 30,
2025, S293973; see also People v. SanMiguel (2024) 105 Cal.App.5th 880,
891–893, (conc. opn. of Yegan, J.) review granted, Dec. 18, 2024, S287786.)



                                               MOORE, ACTING P. J.




                                           2