The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2022 CO 7

Supreme Court Case No. 19SC763

Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 15CA1517

Petitioner:

The People of the State of Colorado,

v.

Respondent:

Ray Ojeda.

Judgment Affirmed
en banc
February 14, 2021

Attorneys for Petitioner:

Philip J. Weiser, Attorney General
Kevin E. McReynolds, Senior Assistant Attorney General
Denver, Colorado

Attorneys for Respondent:

Megan A. Ring, Public Defender
Elizabeth Griffin, Deputy Public Defender
Denver, Colorado

JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which

CHIEF JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE HOOD,
JUSTICE GABRIEL, JUSTICE HART, and JUSTICE SAMOUR joined.
JUSTICE BERKENKOTTER delivered the Opinion of the Court.

¶1 We review a split decision of a division of the court of appeals in People v.

Ojeda, 2019 COA 137M, 487 P.3d 1117, holding that the trial court erred in denying

Ray Ojeda’s challenge to an allegedly discriminatory jury strike under Batson v.

Kentucky, 476 U.S. 79 (1986), during the jury selection process. We hold that

because the prosecution offered an explicitly race-based1 reason for striking Juror

R.P., it did not meet its burden of providing a race-neutral explanation for the

strike, as required under step two of the Batson test. Accordingly, we affirm the

judgment of the court of appeals, albeit on other grounds.

I. Facts and Procedural History

¶2 In 2013, Ojeda was charged with kidnapping, sexually assaulting, and

shooting a fifteen-year-old girl back in 1997. The victim, who somehow survived,

reported the crime immediately but could not identify the perpetrator. The

investigation eventually stalled out. At some point in time, the Denver Police

Department’s Crime Lab misplaced the victim’s rape kit. Years later, when the

1 We recognize that bias on the basis of a person’s Hispanic or Latino identity is

ethnicity-based, not race-based. We use the term “race” here expansively to
encompass the nature of both biases in keeping with the primary terminology
employed by the parties and the division and used in the United States Supreme
Court’s precedents. See Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 863 (2017).

2
police found and retested evidence from the victim’s rape kit, DNA from the

vaginal swab matched Ojeda.

¶3 At the beginning of Ojeda’s trial in 2015, prospective jurors completed a

written questionnaire that asked, among other things, whether they, a friend, or a

relative had been the victim of a sexual assault; whether they had friends or

relatives in law enforcement; and whether they or a family member had ever had

a particularly good or bad experience with a police officer.

¶4 Juror R.P., a Hispanic2 man, explained in his responses to the questionnaire

that he and his ex-wife had been victims of sexual misconduct or assault, that he

had a friend in law enforcement, and that he or a family member had been “racially

profil[ed].” Because he answered the first question affirmatively, Juror R.P., like

at least a dozen other jurors, was questioned individually by counsel outside the

presence of the venire. He explained that the “inappropriate sexual behavior” to

which he was subjected, as well as his ex-wife’s separate experience, both occurred

in the 1980s, before they were married. He indicated, in response to a question by

the prosecution, that those experiences would not impact his ability to listen to the

2 We use the term “Hispanic” in this opinion (in lieu of Latino) because both the
trial court and the court of appeals used this term.

3
evidence or affect his judgment. Neither defense counsel nor the prosecution

expressed any concern about Juror R.P.’s answers.

¶5 During group voir dire, the prosecutor asked Juror R.P. whether he had a

“response in [his] gut” to the delay in bringing the case to trial. Juror R.P. said that

the delay raised questions: “Maybe the person didn’t disclose for some reason, the

victim? Or maybe there was a mistrial before, or you know, something went

awfully wrong for so many years to have gone by.”

¶6 The prosecutor later asked eight of the prospective jurors to rate the criminal

justice system on a scale of one to ten. Two jurors rated the system a four, three

said it was a five or six, one rated it a six or seven, and two rated the system a nine

or ten. Juror R.P. was one of two jurors who rated the system a four. Later, in

response to a different line of questioning, Juror R.P. indicated that he had “a little

bit of a bias on the system itself,” explaining that he had “worked with

communities of color,” and he knew “that the criminal justice system is

disproportionately filled with people of color and folks with mental disabilities.”

He stated that, while he would try not to let his views affect him as a juror, his

feelings about the system might color the way he “hear[d] and weigh[ed] the

evidence in the case.”

¶7 At the conclusion of the group questioning, the prosecutor challenged Juror

R.P. for cause. She stated that her challenge was based on the content of Juror

4
R.P.’s questionnaire, the remarks he made during general voir dire, and his

demeanor. She explained that Juror R.P. expressed “bias” against the criminal

justice system and “visibly showed hesitation” when asked whether he could be

fair.

¶8 As for the questionnaire, the prosecutor observed that Juror R.P. worked in

a field “ha[ving] to do with a quality of healthcare for individuals.” Next, she

turned to Juror R.P.’s voir dire comments, focusing on what she characterized as

his “bias against the system.” She construed this comment as an admission by

Juror R.P. that his bias would “impact his ability to listen to both sides.” She then

summed up her concerns:

And I believe that when you look at that in-court behavior against
what is clearly his commitment to his job, in terms of serving people
of color and what he talked about in terms of the defendant being a
person of color—he is himself a person of color—I thought that the
totality of the record indicated that he has a distinctive leaning, that
he himself said he would have trouble listening to the evidence.

¶9 Defense counsel objected to the prosecutor’s challenge, arguing that the

prosecutor was mischaracterizing Juror R.P.’s answers. He then highlighted Juror

R.P.’s statements that he could set his personal experiences aside, follow the rules

provided by the court, and be objective. Defense counsel added that Juror R.P.

was “one of the few Hispanic men on this entire jury panel,” emphasizing that,

under Batson, the prosecutor could not “exclude him just because he’s Hispanic

and may have something in common with the defendant in his heritage.” The

5
prosecutor did not dispute defense counsel’s characterization of the basis of her

challenge.

¶10 The district court denied the prosecutor’s challenge for cause, expressly

rejecting the prosecution’s assertion that Juror R.P.’s answers regarding his

feelings or life experiences indicated that he would not follow the court’s rules or

reach a verdict based on the evidence. Specifically, the court found that Juror R.P.

was “certainly entitled to believe that people of color are not well-served in our

criminal justice or medical system.” The court explained: “There’s nothing in his

answers that those feelings o[r] his life experience will affect his judgment in the

case, that he won’t follow the rules set forth by the Court. There’s a completely

inadequate record to challenge him in this case.” It clarified, however, that it had

not made any findings under Batson.

¶11 Not long thereafter, the prosecutor used a peremptory strike to excuse Juror

R.P. Defense counsel, again, immediately raised a Batson objection, stating that he

was “obviously concerned about excusing Hispanic males from the jury.” Without

waiting for the court to rule on whether defense counsel had made out a prima

facie case of discrimination under the first step of Batson, the prosecutor proceeded

to articulate her rationale for striking Juror R.P.

¶12 First, she expressly incorporated her comments related to her earlier for-

cause challenge. Then, she elaborated on those comments, emphasizing the same

6
underlying theme. She told the court that Juror R.P. would be a bad juror for the

prosecution in light of the weaknesses in the prosecution’s case, including the

evidence that the Denver Police Department and the Denver Crime Lab misplaced

the victim’s rape kit for a period of years. She explained that the prosecution

anticipated vigorous cross-examination concerning the DNA evidence that was

ultimately recovered from the rape kit and was concerned that Juror R.P.’s

reservations about the system might make him more skeptical of the prosecution’s

evidence. The problem, the prosecutor explained after gathering her thoughts,

was that because the “defendant is a Latino male,” and Juror R.P., as a Hispanic

male, had discussed his own concerns about being racially profiled, Juror R.P.

might “steer the jury towards a race-based reason why” Ojeda was “charged in

the case.” The prosecutor added that the jury still included a man of Middle

Eastern descent, a “gentleman who is literally, not metaphorically, but literally of

African-American descent,” another Black man, and a Hispanic man.

¶13 Defense counsel responded: “With respect to [Juror R.P.], I think [the

prosecutor] made my argument for me. She’s concerned about a race-based

argument being made by [Juror R.P.] because he’s Hispanic.” The court overruled

the Batson objection, explaining:

The Court will deny the challenge for cause as to [Juror R.P.], but there
are abundant race-neutral reasons for a peremptory to be exercised.
First of all, he too is a victim of a sex assault, as is his wife, and he
struck the Court as remarkably unconcerned about those events in his

7
 own lifetime. His first thought when there was a discussion of the
time [it has] taken to bring this case was that the victim had delayed
disclosure. He does have an anti-law enforcement ben[t], so the Court
finds there’s a sufficient racially neutral basis for the challenge.

¶14 Following the court’s ruling, the prosecutor added that she, too, had “taken

a note” about Juror R.P.’s comments concerning the delay and that they were “of

particular concern.” The jury convicted Ojeda as charged, and the court sentenced

him to 144 years in prison.

¶15 Ojeda appealed, and a split division of the court of appeals reversed. Judge

Fox, writing for the majority, concluded that the trial court erred in denying

Ojeda’s Batson challenge. Ojeda, ¶ 34, 487 P.3d at 1126. Applying the “substantial

motivating factor” approach to step three of the Batson analysis, Judge Fox

concluded that the prosecutor was motivated in substantial part by discriminatory

intent. Id. at ¶¶ 25–26, 487 P.3d at 1123–24. Judge Harris specially concurred,

concluding that the prosecution did not meet its burden under step two of the

Batson analysis to state a race-neutral reason for striking Juror R.P. Id. at ¶ 37,

487 P.3d at 1127 (Harris, J., specially concurring).

¶16 Judge Hawthorne dissented, concluding that the trial court’s Batson analysis

was inadequate and that People v. Rodriguez, 2015 CO 55, 351 P.3d 423, required the

matter be remanded to the trial court with directions to conduct the three-step

Batson analysis and to make the required factual findings. Ojeda, ¶ 80, 487 P.3d at

1133 (Hawthorne, J., dissenting).

8
¶17 We granted certiorari3 and affirm on alternate grounds.

II. Analysis

¶18 We begin by discussing the important equal protection principles that

prohibit purposeful discrimination in the jury selection process. We next outline

the three-step test set forth in Batson for determining whether a party’s use of a

peremptory challenge is purposefully discriminatory. Then, we discuss the

standards of review that apply to each Batson step before taking a deeper dive into

the cases from the United States Supreme Court and this court that provide the

basic framework for our decision today. Finally, we apply the relevant law to the

facts before us.

3 We granted the People’s petition for certiorari review of the following issues:
1. Whether the court of appeals erred in applying Batson v. Kentucky
by adopting an unprecedented “substantial motivating factor” test
to override the trial court’s conclusion that “abundant race-neutral
reasons” supported a juror strike.
2. Whether the court of appeals erred by creating its own factual
findings when unsatisfied with the trial court’s instead of
remanding for further proceedings as required in People v.
Rodriguez, 2015 CO 55, 351 P.3d 423.

9
 A. Applicable Law

1. Equal Protection

¶19 The Equal Protection Clause of the Fourteenth Amendment forbids a

challenge to a potential juror based solely on race.4 Batson, 476 U.S. at 89; see also

People v. Wilson, 2015 CO 54M, ¶ 10, 351 P.3d 1126, 1131 (explaining that the Equal

Protection Clause prohibits race-based juror strikes). Equal protection also forbids

striking a juror based on the juror’s gender. J.E.B. v. Alabama, 511 U.S. 127, 129

(1994). Purposeful discrimination in jury selection violates a defendant’s right to

equal protection because it denies the defendant the protection that a trial by jury

is intended to secure: “The very idea of a jury is a body . . . composed of the peers

or equals of the person whose rights it is selected or summoned to determine; that

is, of his neighbors, fellows, associates, persons having the same legal status in

society as that which he holds.” Batson, 476 U.S. at 86 (quoting Strauder v. West

Virginia, 100 U.S. 303, 308 (1879), abrogated by Taylor v. Louisiana, 419 U.S. 522

(1975)). Equal protection also ensures litigants’ and potential jurors’ “right[s] to

jury selection procedures that are free from state-sponsored group stereotypes

rooted in, and reflective of, historical prejudice.” J.E.B., 511 U.S. at 128.

4 For the reasons outlined in footnote one, we use the term “race” expansively to
include Hispanic ethnicity. Batson’s protections unquestionably extend to
Hispanic jurors. See Hernandez v. New York, 500 U.S. 352 (1991).

10
¶20 The harm from discriminatory jury selection reaches beyond that inflicted

on the defendant and the excluded juror to touch the entire community. Juries are

meant to protect life and liberty from wrongful exercises of power; permitting

racial prejudice in jury systems damages both the fact and the perception of justice.

Peña-Rodriguez, 137 S. Ct. at 868. Selection procedures that purposefully exclude

jurors based on race or gender undermine public confidence in the fairness of our

system of justice. See, e.g., Batson, 476 U.S. at 87.

2. Batson v. Kentucky

¶21 To help secure these important rights, the Supreme Court outlined a three-

step process in Batson for determining when a peremptory strike is

discriminatory.5

Step One

¶22 At step one, the objecting party must make a prima facie showing that the

peremptory strike was based on the prospective juror’s race. Miller-El v. Cockrell,

537 U.S. 322, 328 (2003) (“Miller-El I”); Wilson, ¶ 10, 351 P.3d at 1131. To raise the

necessary inference of purposeful discrimination, the objecting party may rely on

all relevant circumstances. Batson, 476 U.S. at 96. One example of a relevant

5The right to peremptory challenges in Colorado is statutory. See § 16–10–104,

C.R.S. (2021).

11
circumstance that the Batson Court suggested is “a ‘pattern’ of strikes” against

members of a cognizable racial group. Id. at 97. But a pattern is not essential to

making a prima facie showing. “The ‘Constitution forbids striking even a single

prospective juror for a discriminatory purpose.’” Foster v. Chatman, 578 U.S. 488,

499 (2016) (quoting Snyder v. Louisiana, 552 U.S. 472, 478 (2008)). “For evidentiary

requirements to dictate that ‘several must suffer discrimination’ before one could

object would be inconsistent with the promise of equal protection to all.” Batson,

476 U.S. at 95–96 (quoting McCray v. New York, 461 U.S. 961, 965 (1983) (Marshall,

J., dissenting from denial of certiorari)). Thus, as long as the totality of the relevant

circumstances raises an inference of racial motivation, the objecting party has

satisfied his or her step-one burden. Id. at 96; accord Valdez v. People, 966 P.2d 587,

589 (Colo. 1998).

Step Two

¶23 The burden of production then shifts to the proponent of the strike. Batson,

476 U.S. at 97. At step two, the proponent must come forward with a race-neutral

explanation “related to the particular case to be tried.” Id. at 98. Examples include

a prospective juror’s out-of-court obligations, see Snyder, 552 U.S. at 478,

prospective jurors’ perceived abilities to listen and follow the interpreter, see

Hernandez, 500 U.S. at 356, and a prospective juror’s lack of ties to the community,

see Rice v. Collins, 546 U.S. 333, 341 (2006).

12
¶24 Step two of the Batson analysis turns on the facial validity of the proponent’s

explanation. Valdez, 966 P.2d at 590. At this step, the striking party’s “explanation

need not rise to the level justifying exercise of a challenge for cause.” Batson,

476 U.S. at 97. All the striking party must do is provide any race-neutral

justification for the strike, regardless of implausibility or persuasiveness. Purkett v.

Elem, 514 U.S. 765, 768 (1995). A race-neutral explanation is “an explanation based

on something other than the race of the juror.” Hernandez, 500 U.S. at 360; see also

People v. Mendoza, 876 P.2d 98, 101 (Colo. App. 1994) (stating that at step two of a

Batson analysis, a prosecutor must offer an explanation for the strike “based on

something other than race”). Nothing more is required for the inquiry to proceed

to step three. See Purkett, 514 U.S. at 768.

¶25 But if a discriminatory purpose is “inherent in the [proponent’s]

explanation,” the reason offered cannot be deemed race-neutral. Hernandez,

500 U.S. at 360. This is why a proponent “may not rebut the defendant’s prima

facie case of discrimination by stating merely that he [or she] challenged jurors of

the defendant’s race on the assumption—or his [or her] intuitive judgment—that

they would be partial to the defendant because of their shared race.” Batson,

476 U.S. at 97.

¶26 In evaluating the race neutrality of the proponent’s explanation, a court

must determine whether, assuming the proffered reason for the peremptory

13
challenge is true, the challenge is based on something other than race, or whether

it is race-based and, therefore, violates the Equal Protection Clause as a matter of

law. Hernandez, 500 U.S. at 359.

Step Three

¶27 At step three, after the objecting party has had a chance to rebut the

proponent’s race-neutral explanation, the trial court must decide the ultimate

question: Whether the objecting party has established purposeful discrimination.

Batson, 476 U.S. at 98. Under the United States Supreme Court’s recent precedent,

resolution of this question turns on the application of a substantial motivating

factor test. Flowers v. Mississippi, 139 S. Ct. 2228, 2235, 2244 (2019); Foster, 578 U.S.

at 512–13; Snyder, 552 U.S. at 485. Under this approach, a peremptory strike is

purposely discriminatory for purposes of step three if the strike was “motivated

in substantial part by discriminatory intent.” Flowers, 139 S. Ct. at 2244 (quoting

Foster, 578 U.S. at 513).

¶28 It is at this stage that “implausible or fantastic [step-two] justifications may

(and probably will) be found to be pretexts for purposeful discrimination.”

Purkett, 514 U.S. at 768. As we discussed in Wilson, the trial court’s step-three

ruling should be based on its evaluation of the proponent’s credibility and the

plausibility of his or her explanation. Wilson, ¶¶ 13–14, 351 P.3d at 1132. If the

trial court is convinced, in light of all the evidence, that the proffered reason was

14
pretextual and that the proponent’s strike was motivated in substantial part by

discriminatory intent, then it must uphold the Batson challenge. Flowers, 139 S. Ct

at 2244; Foster, 578 U.S. at 513; Snyder, 552 U.S. at 485.

¶29 “It is the responsibility of the prosecution to provide its reasons supporting

its peremptory strikes at step two of the Batson analysis, after the trial court rules

that an inference of discrimination exists.” Valdez, 966 P.2d at 592 n.11. For that

reason, we have held that, in determining whether a racially discriminatory juror

strike has occurred, trial courts may not offer up their “own plausible reasons

behind the peremptory strikes at issue.” Id.

B. Standards of Review

¶30 “On appeal, each step of the trial court’s Batson analysis is subject to a

separate standard of review.” Rodriguez, ¶ 13, 351 P.3d at 429. Step one is a

“question of legal sufficiency over which the appellate court must have plenary

review.” Valdez, 966 P.2d at 591. As such, we apply de novo review “to a trial

court’s prima facie determination of the Batson analysis.” Id. At step two, the issue

is “the facial validity of the reason articulated by the [proponent].” Id. at 590.

Because this is a question of law, we apply de novo review. Id. Step three requires

the trial court to determine whether the opponent of the strike has satisfied its

burden of proving purposeful racial discrimination. Id. Because this is an issue of

fact, we review the trial court’s step-three ruling for clear error. Id.

15
 C. Application

¶31 We begin with a more detailed examination of the record below and then

turn to Batson and other pertinent cases to guide our consideration of these issues.

Because we conclude that one of the prosecution’s reasons for striking Juror R.P.

was not race-neutral, we hold the trial court erred in overruling Ojeda’s Batson

challenge and affirm the division’s judgment, although on different grounds.

1. The Batson Test as Applied to These Facts

¶32 To begin, there is no real dispute that Ojeda met his burden as to step one

under Batson. When the prosecutor first attempted to excuse Juror R.P., defense

counsel promptly asserted a Batson objection, noting his concern about excusing

Hispanic men from the jury.

¶33 When shortly thereafter, the prosecution again attempted to excuse Juror

R.P., this time with a peremptory strike, defense counsel renewed his Batson

challenge. The prosecution immediately responded with an explanation

regarding the challenged peremptory strike. It did not, at any point, argue that

defense counsel failed to set forth a prima facie case. We interpret the

prosecution’s immediate response to the Batson objection as its acknowledgement

that Ojeda met his burden under step one. We also conclude, based on the

substance of defense counsel’s argument, that Ojeda met his burden in this regard.

16
¶34 Next, we turn to step two. As we do so, we review, in greater detail, the

state of the record leading up to the prosecution’s Batson response. Recall that

defense counsel asserted Batson challenges to both of the prosecution’s efforts to

excuse Juror R.P.

¶35 After the first Batson challenge, when the prosecutor attempted to excuse

Juror R.P. for cause, she stated that she “found it to be significant” that Juror R.P.

had “devoted his career to . . . a quality of healthcare for individuals.” She told

the court that Juror R.P., “himself a person of color,” appeared to have a distinctive

leaning, as evidenced by his discussion of the defendant being a person of color

and his commitment to his career serving people of color. The trial court denied

the prosecution’s request, concluding that there was “a completely inadequate

record to challenge Juror R.P. in this case,” and that “[there was] no indication he

couldn’t follow my instructions and reach a verdict based on the evidence.” The

trial court specifically noted that it did not reach the Batson issue.

¶36 Not long thereafter, the prosecution again sought to excuse Juror R.P., this

time with a peremptory challenge. Defense counsel reasserted his Batson

objection. In response, the prosecutor specifically incorporated her unsuccessful

argument regarding her challenge for cause. Then, she explained that the

prosecution’s strategy was focused on trying to select jurors who are

“establishmentarian.” She elaborated that the problem was that the “defendant is

17
a Latino male,” and because Juror R.P. had discussed his own concerns about

being racially profiled, Juror R.P., whom she described as a “polished, educated,”

and “persuasive individual,” might then “steer the jury towards a race-based

reason why” Ojeda was “charged in the case.”

¶37 Defense counsel again countered that these reasons were overtly race-based:

“With respect to [Juror R.P.], I think [the prosecutor] made my argument for me.

She’s concerned about a race-based argument being made by [Juror R.P.] because

he’s Hispanic.”

¶38 The trial court denied the Batson challenge, identifying three race-neutral

reasons to explain the strike—none of which were offered by the prosecution.

First, that Juror R.P. was a victim of a sex assault, as was his ex-wife, and he seemed

remarkably unconcerned about those events; second, that Juror R.P.’s first thought

when discussing the time it took to get the case to trial was that the victim delayed

disclosure; and, third, that Juror R.P. had an anti-law enforcement bent.

¶39 All three members of the division below, relying on Valdez, concluded that

the trial court improperly supplied its own race-neutral reasons for the

prosecutor’s strike, although they each ultimately reached different conclusions as

to how the trial court erred in denying Ojeda’s second Batson challenge. See Ojeda,

¶ 13, 487 P.3d at 1121 (majority opinion) (citing Valdez, 966 P.2d at 592 n.11, for the

proposition that a trial court may not supply its own race-neutral reasons for a

18
strike); Id. at ¶ 63, 487 P.3d at 1130 (Harris, J., specially concurring) (same); Id. at

¶ 104, 487 P.3d at 1137 (Hawthorne, J., dissenting) (same).

¶40 The People argue that all three members of the division erroneously

concluded that the trial court provided its own race-neutral explanation for the

strike. They contend that the trial court’s ruling can, instead, be read to “implicitly

credit” the prosecutor’s explanation. They lean, as they did below, on People v.

Beauvais, 2017 CO 34, 393 P.3d 509, in support of this assertion. We are

unpersuaded.

¶41 In Beauvais, the defendant, who was female, asserted a Batson objection to

the prosecution’s use of peremptory challenges to excuse female potential jurors,

arguing that the prosecutor’s reasons for the strikes were pretextual. ¶ 7, 393 P.3d

at 513. After hearing from both attorneys, the trial court found that the defendant

had not established purposeful discrimination. Id. at ¶ 12, 393 P.3d at 515. The

trial court did not make any specific credibility findings about the reasons

proffered by the prosecutor in response to the Batson challenge. See id. On appeal,

the majority of a division of the court of appeals concluded that the record was

insufficient to facilitate review and remanded to the trial court to make specific

step-three credibility findings about the prosecutor’s three justifications for

striking certain female potential jurors. Id. at ¶ 14, 393 P.3d at 515.

19
¶42 We reversed after concluding that an appellate court conducting a clear

error review should defer to the trial court’s step-three ruling “so long as the

record reflects that the trial court weighed all of the pertinent circumstances and

supports the court’s conclusion” regarding purposeful discrimination. Id. at ¶ 32,

393 P.3d at 519. We viewed the record as sufficient to facilitate review and

observed that, under certain circumstances, a trial court’s ultimate decision to

overrule a Batson objection can be taken as an “implicit crediting” of the

prosecution’s reasons and could, thus, survive clear error review. Id. at ¶ 27,

393 P.3d at 518.

¶43 But here, at step two of the Batson analysis, we apply de novo review. And

here, importantly, the trial court did not implicitly accept the prosecutor’s

explanation. Rather, by supplying its own race-neutral reasons to justify the strike,

the trial court implicitly rejected that explanation.

¶44 Moreover, by providing its own race-neutral reasons to explain the strike,

the trial court answered the wrong question. The question under Batson is:

Whether the prosecutor actually struck the potential juror based on race. By

supplying its own reasons, the trial court instead answered whether there was

some race-neutral explanation for the strike that could be gleaned from the record

irrespective of the prosecutor’s actual reason for doing so. See Miller-El v. Dretke ,

545 U.S. 231, 252 (2005) (“Miller-El II”) (explaining that the focus is on the striking

20
party’s stated reasons, regardless of whether “a trial judge, or an appeals court,

can imagine a reason that might” withstand scrutiny). Thus, the trial court erred

by supplying its own reasons for the peremptory strike.

¶45 The People next contend that the trial court’s third justification—that Juror

R.P. had an “anti-law enforcement ben[t]”—was not a new reason offered up by

the trial court but, instead, simply another way of describing the prosecutor’s

argument regarding establishmentarian jurors. Even if this is so, it does not move

the needle here because the inquiry at step two is whether—accepting what the

prosecution said as true—the explanation for the strike was race-neutral or race-

based.

¶46 Applying that standard, we conclude that the prosecution’s explanation was

based in part on Juror R.P.’s race. Here, the thread that runs through the

prosecution’s lengthy explanation was its overtly race-based concern that Juror

R.P.—a polished, educated, persuasive Hispanic man, who the prosecution said

voiced concern about racial profiling—might look to Ojeda who, like him, was a

Hispanic man, and “steer the jury towards a race-based reason why” Ojeda was

“charged in the case.” Judge Harris explained the overtly race-based rationale for

the prosecution’s strike well:

[The prosecutor] explicitly tied Juror R.P.’s race to his views on the
justice system. It was not just that Juror R.P. had concerns about the
system; it was also that he was a person of color, like the defendant,
and the combination of those facts made it more likely that he would

21
 find a “race-based” reason for the prosecution and then try to
persuade the other jurors to adopt his view.

Ojeda, ¶ 69, 487 P.3d at 1131 (Harris, J., specially concurring).

¶47 At base, part of the prosecution’s explanation boiled down to the suggestion

that Juror R.P. might not give the prosecution a fair shake because of his race. See

Batson, 476 U.S. at 104 (Marshall, J., concurring) (explaining that the exclusion of

Black jurors cannot “be justified by a belief that [B]lacks are less likely than whites

to consider fairly or sympathetically the State’s case against a [B]lack defendant”).

¶48 Though not dispositive here at step two, we also note that, contrary to the

People’s assertions, Juror R.P. (1) did not “talk[] about” the defendant being a

person of color; (2) did not “talk about” or “make comments” regarding his own,

or anyone else’s, “concerns” about racial profiling; (3) did not “inject[] his personal

views about racial profiling”; and (4) did not attribute his views regarding the

justice system to his race. It was the prosecution that focused on the defendant

and Juror R.P. as persons of color and then connected Juror R.P.’s race to his

purportedly “anti-establishment” views. And in making this connection, the

prosecution misattributed certain statements and views regarding race and racial

profiling to Juror R.P. to argue that he might not consider the prosecution’s case

fairly because both he and Ojeda were Hispanic men.

¶49 On this record, we conclude that the prosecution did not meet its burden at

step two of the Batson analysis to offer a race-neutral reason for striking Juror R.P.

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 2. What a Successful Batson Challenge Does Not Say

¶50 Today’s conclusion is not a determination that the prosecutor here harbored

ill will or animosity toward Juror R.P. or Ojeda, let alone all Hispanic people.

Indeed, the objecting party need not show that a race-based strike was motivated

by the proponent’s ill will or animosity. While a lawyer’s use of stereotypes in

jury selection sometimes springs from overt racism, more often, their use reflects

a misguided but “professional effort to fulfill the lawyer’s obligation to help his or

her client.” See Miller-El II, 545 U.S. at 271 (Breyer, J., concurring). Of course, “the

outcome in terms of jury selection is the same as it would be were the motive less

benign.” Id. To be sure, as relevant here, Batson must be strictly enforced to

prevent any race-based strike. But a finding of discriminatory purpose based on

race is not the same as a finding that the proponent of the strike is racist. And

equating the two substantially undermines Batson. In fact, such a

misunderstanding of Batson improperly ignores less blatant race-based strikes and

raises the burden for the objecting party.

¶51 This mistaken assumption, in turn, may create a disincentive for sustaining

Batson challenges by suggesting that a successful Batson objection is a declaration

by the trial court that the person who exercised the strike—be it the prosecutor or

defense counsel—is a bigot or is otherwise immoral. This potential disincentive is

worse still at step three if we view a successful Batson challenge as a declaration

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that the proponent of the strike is also a liar (because of the necessary finding that

the proponent’s explanation for the strike is pretextual). See Beauvais, ¶¶ 84–95,

393 P.3d at 529–31 (Márquez, J., dissenting).

¶52 Here, we emphasize that our conclusion that the prosecution did not meet

its burden at step two of the Batson analysis is not a determination that the

prosecution harbored any ill will toward Juror R.P., Ojeda, or Hispanic people.

Nevertheless, given our conclusion regarding step two of the Batson analysis,

Ojeda’s conviction cannot stand.

III. Conclusion

¶53 Because we conclude that the trial court erred at step two by denying

Ojeda’s Batson challenge, we affirm the judgment of the court of appeals.

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