People v. Northington

majority opinion

Filed 10/28/26

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

A169576

MARILYN NORTHINGTON, (Contra Costa County

Super. Ct. No. 02-00334044-5)

Defendant and Appellant.

Following the death of their five-week-old infant, appellant and defendant Marilyn Northington and her boyfriend and co-defendant, RayRay Darn, were charged with: (1) murder; (2) assault on a child causing death; and (3) child abuse. After a joint trial, the jury acquitted Northington of murder but convicted her of involuntary manslaughter, a lesser included offense. The jury also found Northington guilty of assault and child abuse. The trial court sentenced Northington to 25 years-to-life in prison on the assault conviction but stayed her punishment on the remaining two convictions.

Northington appeals, contending: (1) the trial court should have granted a motion for acquittal as to the assault count; (2) she should get a new trial because the trial court erroneously denied her objection under Code of Civil Procedure section 231.7 (section 231.7) to the prosecution’s exercise of

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this

opinion is certified for publication with the exception of parts II.A. and II.C.

a peremptory challenge against a Black juror; and (3) the court gave the jury the wrong instruction on circumstantial evidence. We conclude that the acquittal motion should have been granted because the evidence at the time the motion was filed was insufficient to support an assault conviction. We also hold that the court erroneously denied Northington’s objection under section 231.7 because it excused the juror before hearing the prosecution’s reasons for the challenge. Finally, for the guidance of the court on remand, we hold that the court should have given CALCRIM No. 224, rather than CALCRIM No. 225. We therefore reverse and remand so the court can enter a judgment of acquittal on the assault count and hold a new trial on all remaining counts.

I. BACKGROUND

Northington’s only challenge to the sufficiency of the evidence pertains to the first acquittal motion. Consequently, our description of the facts is limited to the evidence admitted at the time of that motion. (People v. Cole (2004) 33 Cal.4th 1158, 1213.)

Northington gave birth to John Doe on December 27, 2020. He was Northington’s and Darn’s third child after brother R.D. and sister A.D. At 16 days old, Doe was examined by Dr. Benjamin King. Dr. King observed that Doe’s weight was three ounces below his birth weight and that he “look[ed] [uncommonly] slim.” His weight caused Dr. King to be concerned about neglect but he stated that his concern did not rise to the level of suspicion. He did not see any injuries to Doe during the visit. Dr. King gave Northington instructions on feeding Doe and set a follow-up appointment for the next two days for “weight checks.” Over the next two days, Doe showed “very good” and “reassuring” weight gain. Doe also had a one-month-old visit

scheduled for February 3, 2021, the day before Doe’s death, but the family missed the appointment.

During Doe’s five weeks of life, the family lived in a single room of a hotel that partnered with the Greater Richmond Interfaith Program (GRIP) and that was opened to homeless families during the COVID-19 pandemic. Darn’s brother Hakeem Franklin and Franklin’s then-fiancée, Monique Coetser, also lived at the hotel during that time. Coetser saw Doe approximately twice a week and last saw him a few days before his death in Darn’s and Northington’s room. Doe’s leg was broken the last time Coetser saw him. She also saw something that looked like a rash on his face and noticed his voice sounded hoarse when he cried. Northington told Coetser she did not know what to do about Doe’s broken leg with the follow-up appointment approaching.

On the evening of February 4, 2021, Darn called Franklin and asked him to watch R.D. and A.D. while Darn and Northington took Doe to the hospital. By the time Franklin and Coetser reached Darn’s and Northington’s room, only R.D. and A.D. were there. On the second floor, GRIP employee Michael Cook saw Darn and Northington run out of their room with Doe in a car seat heading into an elevator. Cook also thought he saw blood on the side of Doe’s head. He told Darn and Northington to wait but they refused, telling him they were taking Doe to the hospital, and he was unable to stop them before they “jump[ed] in a white car” and took off. A hotel employee on the first floor also saw Northington and Darn leave the hotel with the car seat.

Darn and Northington took Doe to the hospital. When the emergency room doctor first saw Doe, he was not breathing, had “no pulse . . . evident,” and was “closer to dead than alive.” He was also “extremely malnourished,”

appeared dehydrated, and was “extremely thin.” The doctor observed “multiple injuries over various parts of [Doe’s] body,” describing “multiple burns that appeared to be in different stages of healing” “in the areas that would be very difficult to occur accidentally.” The doctor also noticed that Doe’s right leg was “extremely swollen,” which gave him “concern for a femur fracture.” The doctor thought the multiple injuries were “due to abuse.” Emergency room staff attempted to resuscitate Doe but were unsuccessful. During the resuscitation attempt, Northington was “hysterically screaming,” and Darn was seated on the floor with his “arms resting on his knees and his head down.”

The night of Doe’s death, the Richmond Police Department obtained a search warrant to draw blood from Darn and Northington. Both tested positive for methamphetamine. The police also conducted a search of Darn’s and Northington’s hotel room. In the room, officers found, among other things, a crib, formula, a breast pump, a pipe that could be used for methamphetamine, two butane lighters, baby bottles, diapers, and a bucket filled with water in the bathtub.

The morning after Doe’s death, Dr. Ikechi Ogan performed an autopsy. Doe weighed eight ounces below his birth weight. Dr. Ogan began with an external examination, during which he observed burns to ten percent of Doe’s body (Doe’s face, thighs, back of knee, buttocks, scrotum, and groin). Dr. Ogan opined that all but one of the burns were due to scalding, and one burn to Doe’s right thigh was a “pattern injury” that was consistent with the flame of the butane lighter recovered from the hotel room. The burns to Doe’s lower extremities were consistent with submersion in hot water. Each of the burns were in various stages of healing. Doe’s right thigh was “swollen,” “discolored,” and “deformed,” indicative of a broken bone. Dr. Ogan further

concluded that Doe was malnourished, emaciated, and dehydrated based on his external exam.

Dr. Ogan next performed an internal examination of Doe’s body. Beginning with Doe’s head, the internal examination revealed a skull fracture, bruising, and bleeding on top of and inside the skull. Dr. Ogan did not opine as to whether the skull fracture was due to accidental or intentional blunt force trauma. Dr. Ogan subsequently examined Doe’s torso, where he observed significant bruises and multiple rib fractures “of different ages” on “both sides throughout the ribcage.” In his exam of Doe’s abdomen, Dr. Ogan noted Doe’s intestinal system was empty, which “meant that the child had not been eating.” Dr. Ogan also observed that the thickness of Doe’s fat underneath the skin was almost nonexistent compared to most children. Turning to Doe’s lungs, Dr. Ogan found that Doe had bilateral bronchopneumonia. In Doe’s right leg, Dr. Ogan found a broken femur with evidence of “early healing.” Dr. Ogan observed that Doe was anemic due to malnourishment. During the autopsy, blood samples were taken from Doe and sent for analysis. His blood tested positive for methamphetamine.

Dr. Ogan opined that Doe’s cause of death was “multiple blunt force and thermal . . . burn injuries . . . due to severe abuse and neglect.” He believed Doe’s injuries “combined [were] part of what killed him.” He also testified that Doe’s malnutrition, emaciation, dehydration, anemia, and bronchopneumonia were associated with his cause of death. Dr. Ogan also considered the methamphetamine in Doe’s system to be “part of the cause of death.” According to Dr. Ogan, the following conditions on their own could have killed Doe: malnutrition, dehydration, bronchopneumonia, anemia, and Doe’s fractured skull. Dr. Ogan did not believe that Doe’s broken femur or

ribs on their own would have killed him. Dr. Ogan could not opine whether the methamphetamine alone could have caused Doe’s death.

Twenty days after Doe’s death, Dr. Michelle Jorden performed a second autopsy. Dr. Jorden was retained by the district attorney’s office to conduct an examination that “complement[ed] [Dr. Ogan’s] autopsy” but was not retained to give an opinion on Doe’s cause of death. Dr. Jorden noted Doe’s body had undergone “decompositional changes” by the time she performed the autopsy. She testified that Doe’s skull fracture was “indicative of nonaccidental head trauma.” Dr. Jorden opined that Doe’s skull fracture was the most recent of Doe’s injuries but could not determine when the injury occurred. She also observed a total of nine rib fractures but could not determine when the fractures occurred. Dr. Jorden did not believe that the rib fractures were caused by birth trauma or cardiopulmonary resuscitation. As to Doe’s broken leg, Dr. Jorden believed the fracture was “due to a direct blow or . . . bending of the bone.” Dr. Jorden examined Doe’s brain and found evidence “of a lack of oxygen to the brain, as well as changes that were indicative of brain swelling.”

Dr. Jorden testified that Doe’s head injuries and bronchopneumonia could have been fatal on their own. As for Doe’s burns, Dr. Jorden testified that they would be “[v]ery unusual” for burns caused by immersion in hot water. She thought the burns could have eventually been fatal, but Doe did not yet have any of the resulting infections that would have caused death from the burns. Dr. Jorden further opined that the ingestion of methamphetamine, malnutrition, and dehydration could be “potentially fatal to an infant.” Like Dr. Ogan, Dr. Jorden did not believe Doe’s broken leg or ribs were fatal on their own.

Darn’s and Northington’s then-eight-year-old child R.D. also testified before the first acquittal motion. He testified that Northington would feed Doe with a bottle and did not remember Darn “ever doing something to mess with [Doe],” putting Doe in a bucket, or “doing anything that would make [Doe] sad.” R.D. further testified that he did not think he said that Darn punched Doe during an interview he gave shortly after the night of Doe’s death. He also remembered Darn “trying to help save [Doe]” when Darn and Northington took Doe to the hospital.

Darn and Northington had been together from 2012 through Doe’s death. Trial witnesses who testified before the first acquittal motion described Darn as “a bum,” “a druggy,” and an absent father. There was ample testimony that Darn controlled Northington and was verbally abusive towards her. By contrast, witnesses described Northington as “[a] follower,” “easily influenced,” and “not a violent person.” Northington’s sister testified that Northington “tried to do whatever to make [Darn] happy or to please him.” However, no witnesses who testified before the first acquittal motion saw or knew of Darn hitting any of the three children. Nor did any of those witnesses see or know of Northington hitting any of the three children.

The information charged Darn and Northington with murder (Pen. Code, § 187, subd. (a); count 1), assault on a child causing death (id., § 273ab, subd. (a); count 2), and child abuse (id., § 273a, subd. (a); count 3). The information also included a special allegation of “Willful Harm Or Injury Resulting in Death” (id., § 12022.95). The jury acquitted Darn and Northington of murder but convicted both of the lesser included offense of involuntary manslaughter. The jury also convicted Darn and Northington on counts 2 and 3 and found the special allegation to be true as to both defendants. The trial court sentenced Northington to 25 years-to-life in

prison on count 2. The court stayed Northington’s punishment on counts 1 and 3. Northington timely appealed.

II. DISCUSSION

A. Acquittal Motion

During trial, Northington joined in two motions for acquittal made by Darn, the first directed to all counts and the second directed only to the assault count, both of which were denied Northington contends that the first motion for acquittal should have been granted as to the assault count. We agree.

1. Applicable Law and Standard of Review

Penal Code section 1118.1 states in pertinent part: “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.”

“We review the denial of a Penal Code section 1118.1 motion using the same standard ‘employed in reviewing the sufficiency of the evidence to support a conviction.’ [Citation.] We thus examine ‘ “the entire record in the light most favorable to the judgment” ’ to determine whether it discloses substantial evidence – ‘ “evidence that is reasonable, credible, and of solid value” ’ – ‘ “from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ [Citation.] Our review ‘ “ ‘presume[s] in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.’ ” [Citation.] Even where, as here, the evidence of guilt is largely circumstantial, our task is not to resolve

credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might “ ‘ “be reasonably reconciled with the defendant’s innocence.” ’ ” ’ [Citation.] Instead, we ask whether there is ‘ “ ‘substantial evidence of the existence of each element of the offense charged’ ” ’ such that any rational jury may have convicted [the] defendant.” (People v. Veamatahau (2020) 9 Cal.5th 16, 35–36 (Veamatahau).) “ ‘ “Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence, it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” ’ ” (People v. Collins (2025) 17 Cal.5th 293, 307 (Collins), quoting People v. Kunkin (1973) 9 Cal.3d 245, 250.)

In ruling on the denial of a motion for acquittal, we may only consider evidence introduced up to the point in the trial when the motion was made. (People v. Watkins (2012) 55 Cal.4th 999, 1019 (Watkins) [courts cannot consider “evidence subsequently adduced . . . .”].) The first acquittal motion was made after the prosecution rested. Thus, our review is limited to the state of the evidence at that time.

2. Analysis

In denying the first acquittal motion, the trial court reasoned that there was “a lot of evidence . . . that the jury could use to find one or both parents guilty of all charges.” This language suggests that the trial court found sufficient evidence that Northington was guilty under a direct theory of liability, i.e., as the perpetrator of the assault. The court also considered whether there was sufficient evidence to convict Northington under an aiding and abetting theory, relying on People v. Rolon (2008) 160 Cal.App.4th 1206 to conclude that there was. Because the prosecutor conceded in his closing argument that the identity of the perpetrator of the assault was unknown,

Northington was apparently convicted solely as an aider and abettor. The parties disagree over whether the evidence at the time of the first acquittal motion was sufficient to support her conviction for the assault that killed Doe. We find that there was not — either under a direct or aiding and abetting theory of liability.

a. Direct Theory of Liability

The elements of assault on a child causing death under Penal Code section 273ab are: “ ‘(1) A person, having the care or custody of a child under the age of eight; (2) assaults this child; (3) by means of force that to a reasonable person would be likely to produce great bodily injury; (4) resulting in the child’s death.’ ” (People v. Wyatt (2010) 48 Cal.4th 776, 780.) The second element “requires an intentional act and actual knowledge of those facts that would lead a reasonable person to realize that great bodily injury would directly, naturally, and probably result from the act.” (Id. at p. 786.)

At one point in their brief, the People concede that “there was no available evidence identifying which parent (or neither, or both) assaulted . . . Doe.” But at another point, the People contend that there was circumstantial evidence that Northington “intentionally struck” Doe. In doing so, however, the People do not explain how the evidence, such as the fact that Darn carried Doe into the hospital with Northington present after Doe suffered the skull fracture, warrants such an inference. Dr. Jorden’s testimony that Doe’s skull fracture was “indicative of non-accidental head trauma” does provide evidence of an intentional act. But Dr. Jorden could only determine that the act causing that fracture occurred “recent in time.” And she could not provide a time frame for that assault. Thus, there was no substantial evidence that Northington struck Doe. Indeed, no witness who testified before the first acquittal motion saw or knew of Northington hitting Doe. To the contrary,

several witnesses testified that Northington was “not a violent person.” Based on this evidence, it cannot be said that “any rational jury may have convicted” Northington as the direct perpetrator of the assault on Doe.1 (Veamatahau, supra, 9 Cal.5th at p. 36.)

b. Aiding and Abetting Theory of Liability

The People contend that there is sufficient evidence to establish that Northington aided and abetted the assault on Doe that resulted in the skull fracture. We disagree.

“[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus — a crime committed by the direct perpetrator, (b) the aider and abettor’s mens rea — knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor’s actus reus — conduct by the aider and abettor that in fact assists the achievement of the crime.” (People v. Perez (2005) 35 Cal.4th 1219, 1225; see also People v. Lara (2017) 9 Cal.App.5th 296, 318 [the identity of the direct perpetrator can be unknown so long as the aider and abettor has the requisite mens rea].) “[T]he jury need not decide unanimously whether [the] defendant was guilty as the aider and abettor or as the direct perpetrator.” (People v. Santamaria (1994) 8 Cal.4th 903, 918.)

In determining whether there was sufficient evidence that Northington knew of the perpetrator’s intent to assault Doe and intended to assist the perpetrator in doing so, two cases are instructive. In Collins, on which Northington relies, the California Supreme Court found insufficient evidence

1 To the extent there is any evidence introduced after the first acquittal

motion that Northington assaulted Doe, we cannot consider it here. (Watkins, supra, 55 Cal.4th at p. 1019.)

to support the mother’s conviction for second-degree murder of her twomonth-old child under an aiding and abetting theory. (Collins, supra, 17 Cal.5th at p. 323.) The jury convicted the mother of aiding and abetting the killing of the child by the father but acquitted her of assault on a child causing death. (Id. at pp. 300, 306.) The father killed the child by “using his leg as a handle and throwing him against either the wall or the ground.” (Id. at pp. 301, 305.) The mother, who was in another room, “heard a bang.” (Id. at p. 301.) Despite evidence that the mother was aware of the father’s past abuse of the child, including telling the mother that he “wanted to make her lose the baby,” the high court held that the evidence did “not support a reasonable inference that [the mother] knew [the father] intended to commit the fatal act.” (Id. at pp. 300, 312.) And even though the mother “protected [the father] during her first interview with the police,” the court found that the evidence could not establish that the mother “intentionally aided and abetted [the father’s] commission” of the fatal act. (Id. at pp. 317–318.)

In People v. Culuko (2000) 78 Cal.App.4th 307 (Culuko), the Court of Appeal found sufficient evidence to affirm the defendants’ convictions under Penal Code section 273ab under an aiding and abetting theory. (Culuko, at p. 331.) In that case, a seven-month-old child died of internal bleeding from a hit to the stomach. (Id. at p. 313.) The identity of the direct perpetrator was unknown, but the court noted that it had to be one of the defendants, either the child’s mother or the mother’s boyfriend. (Ibid.) The defendants and the child lived together in one room, and the mother told police that “she and [the boyfriend] were the only people . . . around the baby in the week before [death].” (Id. at pp. 316, 335.) An expert testified that “the fatal injury had occurred less than an hour before death,” placing the assault at approximately 7:30 a.m., a time when both defendants were in the room. (Id.

at p. 320.) One witness testified that she had seen both defendants lose their temper with the child. (Id. at p. 317.) Another witness testified that on several occasions he heard “ ‘a thump against the wall’ ” when the boyfriend took care of the child, followed by the child crying. (Id. at pp. 317–318.) Based on this evidence, the Court of Appeal concluded that there was sufficient evidence that the defendants intended to assist the perpetrator of the assault, regardless of which defendant actually committed it. (Id. at p. 331.)

Thus, Collins and Culuko represent opposite ends of the spectrum as to the issue of mens rea for aider and abettor liability. Collins concluded that there was insufficient evidence that the defendant knew of the direct perpetrator’s intent to harm the infant or intended to assist the perpetrator in doing so. (Collins, supra, 17 Cal.5th at p. 323.) Culuko concluded that there was sufficient evidence. (Culuko, supra, 78 Cal.App.4th at p. 331.) To explain these conflicting outcomes, one of the key questions appears to be whether there is evidence that the defendant was present at the assault or knew “to a substantial degree of certainty that a life-endangering act is occurring or is about to occur . . . .” (Collins, at p. 310.) If there is no such evidence, then a defendant’s knowledge that the direct perpetrator had committed abuse in the past is not sufficient to establish the defendant’s intent to assist that perpetrator in committing the assault. (See id. at pp. 317–319.) If there is such evidence, then a defendant’s knowledge of prior abuse by the direct perpetrator may be sufficient to establish that intent. 2 (See Culuko, at p. 331; see also Collins, at p. 310 [if the defendant knew that

2 We need not and do not determine whether knowledge of prior abuse

is always sufficient to establish the mens rea for aider and abettor liability when the defendant is present at the assault.

the assault was occurring or about to occur, the failure “to act in conscious disregard for life” is sufficient to establish “criminal liability”].)

Here, there is insufficient evidence at the time of the first acquittal motion that Northington was present at the assault that resulted in Doe’s skull fracture or knew to a substantial degree of certainty that the assault was occurring or about to occur. Nobody who witnessed the assault testified, and the time frame of the assault was indeterminable. There was also evidence that persons other than Northington and Darn, who were living at a hotel with numerous residents, could have had contact with Doe at the time of the assault. As a result, no rational jury could have found that Northington was present at the assault of Doe or aware that the assault was occurring or about to occur. And in the absence of such a finding, evidence that Northington was aware of prior abuse of Doe is insufficient to establish that she knew that the assault was going to occur or that she intended to assist the perpetrator. (See Collins, supra, 17 Cal.5th at pp. 312, 317–319.)

Despite this, the People maintain that evidence Northington neglected Doe by allowing him “to become dehydrated and malnourished and to suffer so many injuries, including the broken leg,” is sufficient to establish that she intended to assist the direct perpetrator of the assault on Doe. But as our high court explained, neglect of a young child by a mother, however deplorable, is not sufficient, by itself, to establish aider and abettor liability in the absence of evidence that the mother was present at the assault or was aware to a substantial degree of certainty that the assault was occurring or about to occur. (See Collins, supra, 17 Cal.5th at p. 317 [“inadvertent or incidental contribution to the offenses” is insufficient to establish aider or abettor liability].)

Accordingly, we cannot conclude, based solely on the evidence before the trial court at the time the prosecution rested, that Northington had the requisite mens rea to be convicted of assault as an aider and abettor. We therefore reverse the denial of Northington’s motion for acquittal as to the assault count.

B. Peremptory Challenge to Prospective Juror No. 95

Northington also argues that the judgment must be reversed in its entirety because the trial court erroneously denied her objection to the People’s peremptory challenge to prospective juror number 95 (PJ 95) under section 231.7. We agree.

1. Background

During jury selection, PJ 95 identified herself as a Black female in her jury questionnaire. On the fourth day of jury selection, she failed to appear for the morning session. When PJ 95 appeared for the afternoon session, the trial court asked her why she didn’t appear in the morning. She explained that she thought she had been exposed to COVID-19 during a morning group hike and was concerned about spreading the virus at the court. She therefore decided to go take a COVID-19 test, rather than appear in court that morning. But by the time she got the test around noon, she learned that the woman in her hiking group was simply experiencing morning sickness due to pregnancy. The court chastised PJ 95 for not coming to court that morning even though the clerk directed her to report notwithstanding her potential exposure to COVID-19. The court did not, however, dismiss PJ 95 after she asked not to be excused. Instead, the court admonished PJ 95 that jurors need “to understand that when they are told to do X, they do X, that’s all.” PJ 95 said she understood.

During Darn’s voir dire, PJ 95 expressed concern about not being able to talk about the case. She explained: “You’ve seen pictures and heard all this stuff, and I’m supposed to go home and be like, how was your day? You can’t talk about it. Where do I talk this stuff out? That’s the problem I’m having. Where do you go and talk about this? You can’t talk about it with the jurors, I can’t go home and talk about it with my husband, and it’s awful stuff I’m carrying inside of me. I can’t believe we go on and don’t talk about this. I’m just not going to believe that. That’s not human nature.” When the court explained that the law prohibited jurors from talking about the case, she responded: “It is the law, but you can’t believe that we are doing that.” She then shared that she had told her daughter she was on jury duty for “a fatal case about a kid in Richmond,” and her daughter found information on the case on the Internet.

Darn’s counsel told PJ 95 that he needed her “unequivocal commitment to not discuss[ ] anything [she’d] seen or heard in the news, firsthand, secondhand, thirdhand, whatever, particularly with the other jurors in the case.” PJ 95 responded, “that’s going to be my problem.” She then explained: “I dump stuff at home so I can be fresh the next day. . . . Just to be able to go home and say nothing, I can guarantee you I will not be able to do that. [¶] I really wish I could, I don’t want to lie to you and tell you I’m going to be able to go home and do that.”

The trial court explained again that under the law, PJ 95 had to refrain from discussing the case and offered suggestions for dealing with the information she would learn through the trial, such as meditation or exercise. When Darn’s counsel asked PJ 95, once again, for her commitment to not discuss the case if selected as a juror, she responded that she was “going to

try” but immediately qualified that response by saying she “can’t really commit to that.”

During Northington’s voir dire, counsel explained to PJ 95 that “many of the rules that we ask of jurors are so outside of our normal lives, are so uncomfortable, are virtually impossible to meet, but it’s a requirement that we ask jurors to meet these rules,” and asked if she would commit to refraining from discussing the case if selected as a juror. This time, PJ 95 responded with an unqualified “[y]es” and reaffirmed that response when Northington’s counsel repeated the question. PJ 95 acknowledged that it was “a tough commitment, but it’s one of the many sacrifices that we are called upon as citizens to make.” The prosecution did not raise the issue during its voir dire of PJ 95. PJ 95 also declined needing to “add anything” to “[a]nything else” that was discussed over “the last couple of days.”

Near the end of the morning session on September 11, 2023, the People exercised a peremptory challenge against PJ 95. Darn immediately asked to be heard on the challenge but the court responded, “[y]ou can put it on the record later, but I’m going to allow it.” (Italics added.) Just before the noon recess and out of the jury’s presence, the court set a time for counsel to return before the afternoon session to discuss the objection to the People’s peremptory challenge to PJ 95. Darn’s counsel stated, to “clarify[ ] . . . as early as possible,” that he was objecting under section 231.7, as well as Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).3 The court responded “I understand exactly why. I’ve been waiting for it. So we’ll put it on the record at 1:15.” (Italics added.)

3 In Wheeler, our high court held that “the use of peremptory challenges

to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.”

After the noon recess, the trial court heard defense counsel’s objection to the peremptory challenge. The court stated it “understood the objection, but allowed the challenge, and now we’re going to put it on the record.” (Italics added.) The court noted that PJ 95 was a “Black female” who “appear[ed] to be of the same race as both Ms. Northington and Mr. Darn.” She then explained that “the [c]ourt needs to . . . determine whether there was a substantial likelihood that an objectively reasonable person would view the challenge as being based on group membership; in other words, race.” According to the court, the People had to “establish by clear and convincing evidence that an objectively reasonable person aware of the facts [would conclude] that unconscious bias . . . or stereotyping of a juror was not a factor . . . .” The People then explained that the peremptory challenge was based on two violations of the court’s orders committed by PJ 95. First, she defied the court’s order to attend the morning session when she thought she had been exposed to COVID-19. Second, she violated the court’s admonition to refrain from discussing the case by talking to her daughter about the case, who then

(Wheeler, supra¸ 22 Cal.3d at pp. 276–277.) In Batson, the United States Supreme Court held that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” (Batson, supra, 476 U.S. at p. 89.) “The courts in Wheeler and Batson set forth a substantially similar three-step burden-shifting inquiry to guide the trial court’s constitutional review of a peremptory strike. [Citation.] Step one of the Batson/Wheeler test requires the defendant to ‘make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” ’ [Citation.] If the defendant makes out a prima facie case, the second step shifts the burden ‘ “to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes.’ [Citation.] At step three, the trial court decides ‘ “whether the opponent of the strike has proved purposeful racial discrimination.” ’ [Citation.].” (People v. SanMiguel (2026) 20 Cal.5th 254, 271 (SanMiguel).)

researched it. Indeed, she repeatedly stated that she would be unable to refrain from talking about the case with her husband.

The prosecutor argued that PJ 95’s “refusal to follow orders of the [trial] [c]ourt obviously cause[d] [him] concern that she will continue to violate court orders. [¶] She has shown through her conduct and attitude that she does not have a problem . . . violating court orders that she disagrees with. I believe that she’s also likely to discuss this case with members of her family once again despite the separation admonition. The reason for that is that her rationale for discussing this case was essentially based upon her need to [decompress] and handle the information that she was receiving in court.” The prosecutor believed that PJ 95 would need to speak to her family about the case because “the evidence w[ould] be incredibly emotionally heavy.” The prosecutor also noted that PJ 95 told Darn’s counsel that she could not commit to not discussing the case but would try. Finally, the People stated that they had moved to excuse PJ 95 for cause but their request was apparently denied.

The trial court only allowed one defense counsel to argue their joint section 231.7 objection. As a result, only Northington’s counsel argued. Counsel first observed that the prosecution did not question PJ 95 about either of the issues it raised as the bases for the peremptory challenge. He also stated that he had gotten a “firm” agreement from PJ 95 to abide by the admonition to refrain from discussing the case. According to counsel, the court, by allowing PJ 95 to leave and stating its intention to overrule the objection before hearing the People’s reasons for the challenge, violated section “231.7’s requirements that the [c]ourt hear the explanations of the prosecutor and not come to its own conclusions about the validity of the

challenge.” Counsel asked the court to recall and reseat PJ 95 or declare a mistrial.

The prosecutor responded that “[i]t was undisputed that [PJ 95] violated the two court orders, and [that he] [did not] believe any questions could have changed that fact. [¶] And [PJ 95] also guaranteed the [c]ourt that she would not follow the separation admonition, which she [already] went back on.”

The trial court opined that section 231.7 did not require “an immediate hearing.” Rather, it only required a hearing, which the court was holding. The court explained that it allowed PJ 95 to leave because “there [were] legitimate reasons to excuse this juror” and “[t]here was no reason to keep her hanging around for another hour or so when it was absolutely clear that . . . [the peremptory challenge] was going to be allowable.”

“[M]ak[ing] [its] own record about [PJ 95],” the trial court noted that she was repeatedly admonished with the rest of the jurors to refrain from researching or discussing the case. The court also noted it ordered PJ 95 to report at 10:30 a.m. but she did not do so. According to the court, this showed that PJ 95 would “do what she wants to do regardless of what the [c]ourt instructs her to do.” Finally, the court discussed PJ 95’s concern about the separation admonition and her daughter doing research on the case and found that “[s]he absolutely never committed to not doing that again.”

Because PJ 95 “deliberately and defiantly disobeyed court orders” and “regardless of the fact that she is a Black female,” the court found “by clear and convincing evidence” based “on [its] observations and the reasons given by [the People], that this was not a challenge based on [PJ 95’s] race, but rather was a challenge . . . based on a perception that the juror would not be able to follow the law” or “the [c]ourt’s instructions.” The court acknowledged

that defense counsel “eventually got [PJ 95] to begrudgingly, very begrudgingly, say yes she could follow the instructions” but noted “it was very difficult for even the defense to get that out of her.”

2. Applicable Law and Standard of Review

To address the observed shortcomings of Batson/Wheeler regarding “the problem of discrimination in jury selection,” the Legislature enacted Assembly Bill No. 3070 (2019–2020 Reg. Sess.), codified as section 231.7. (SanMiguel, supra, 20 Cal.5th at pp. 271–272.) “Section 231.7 prohibits removing a prospective juror on the basis of the prospective juror’s actual or perceived ‘race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation.’ ” (Id. at p. 272, quoting § 231.7, subd. (a).)

An objection under section 231.7 must “be made before the jury is impaneled, unless information becomes known that could not have reasonably been known before the jury was impaneled.” (§ 231.7, subd. (b).) “[U]pon objection to the exercise of a peremptory challenge [under section 231.7], the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised.” (Id., subd. (c).) Subdivision (d) then requires that the trial court “evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances” and “consider only the reasons actually given . . . .” (Id., subd. (d).) In performing this evaluation, the court may “not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge.” (Ibid., italics added.) “If the court determines there is a substantial likelihood that an objectively reasonable person would view [a protected category] or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. The court need

not find purposeful discrimination to sustain the objection.” (Ibid.) Finally, “[t]he court [must] explain the reasons for its ruling on the record.” (Ibid.)

“[I]f a court finds a peremptory challenge improper during jury selection and the objecting party so requests, the court must ‘[q]uash the jury venire and start jury selection anew.’ [Citation.] Otherwise, the court may seat the prospective juror, provide the objecting party additional challenges, or ‘[p]rovide another remedy as the court deems appropriate.’ [Citation.]” (SanMiguel, supra, 20 Cal.5th at p. 274, quoting § 231.7.) Appellate review of the denial of an objection under section 231.7 is “de novo, with the trial court’s express factual findings reviewed for substantial evidence.” (§ 231.7, subd. (j).) If “the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.” (Ibid.)

3. Analysis

The trial court excused PJ 95 before hearing the reasons given by the prosecution for its peremptory challenge. According to the court, section “231.7 does not require the [c]ourt to have an immediate hearing of all the reasons that the objecting party is objecting to the challenge.” But in excusing PJ 95 before holding a hearing, the court appeared to violate section 231.7, subdivision (d) by “assum[ing] the existence of . . . possible justifications for the use of the peremptory challenge.” Indeed, the court’s own statements support this conclusion. For example, when Darn’s counsel clarified that he was objecting under section 231.7, the court stated that it understood “exactly why” and “allowed the challenge” before hearing any reasons for the challenge. And in justifying its decision to excuse PJ 95 before hearing the reasons for the challenge, the court stated that “[t]here was no reason to keep her hanging around for another hour or so when it was

absolutely clear that . . . [the peremptory challenge] was going to be allowable.” (Italics added.)

Nonetheless, we need not determine whether this apparent violation of section 231.7, subdivision (d) can be cured through a subsequent hearing. This is because the subdivisions of section 231.7, when read together, prohibit a trial court from ruling on an objection to a peremptory challenge before hearing the prosecution’s reasons for that challenge. By excusing PJ 95 before doing so, the court, as a practical matter, partially ruled on Northington’s objection in violation of section 231.7.

In reviewing the trial court’s interpretation of section 231.7 de novo, we apply our well-established canons of statutory construction. (SanMiguel, supra, 20 Cal.5th at p. 277.) We begin by “reading the provision in its broader statutory context and giving the language its usual and ordinary meaning.” (Ibid.) “ ‘If the language is clear in context, our work is at an end. If it is not clear, we may consider other aids, including the statute’s legislative history.’ ” (Ibid., quoting National Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488, 498.)

Contrary to Northington’s assertion, section 231.7, subdivision (c) does not state how soon the trial court must hear and rule on the reasons given by the exercising party for the peremptory challenge after an objection is made. That subdivision merely requires the party exercising the peremptory challenge to “state the reasons” for that challenge “upon objection . . . .” (Id., subd. (c).) It does not state that the court must hear and rule on those reasons immediately “upon objection.” (Ibid.) But reading subdivision (c) together with subdivisions (b), (d), and (h) of section 231.7 establishes that the challenging party’s reasons must be stated before the court may take any available remedy off the table.

As relevant here, section 231.7, subdivision (b) states that “[t]he objection shall be made before the jury is impaneled, unless information becomes known that could not have reasonably been known before the jury was impaneled.” (Italics added.) Under subdivision (d), the court, in ruling on that objection, may only consider the “reasons actually given” by the challenging party and may not “assume” what those reasons will be. (Id., subd. (d).) Subdivision (h) of section 231.7 then provides a number of remedies that the trial court must choose from “[u]pon granting an objection” made before the jury has been impaneled.4 (Italics added.) These remedies include “[s]eat[ing] the challenged juror.”5 (Id., subd. (h)(3).)

Read together with subdivision (c), these subdivisions of section 231.7 establish that: (1) an objection to a peremptory challenge must be made before the jury is impaneled whenever possible; (2) the court must actually hear the challenging party’s reasons before determining whether the objection should be denied; and (3) the court may only decide whether a remedy is appropriate after it has ruled on the objection. Put more simply, these subdivisions prohibit a court from rejecting an otherwise available remedy before hearing the reasons for the challenge. This is because

4 If the trial court grants an objection “after the jury has been

impaneled,” it may also “declare a mistrial and select a new jury if requested by the defendant.” (§ 231.7, subd. (h)(2); see SanMiguel, supra, 20 Cal.5th at p. 274 [excluding subdivision (h)(2) from its description of the remedies available “if a court finds a peremptory challenge improper during jury selection”].)

5 Other available remedies include: (1) “[q]uash[ing] the jury venire

and start[ing] jury selection anew . . . if requested by the objecting party” (§ 231.7, subd. (h)(1)); (2) “[p]rovid[ing] the objecting party additional challenges” (id., subd. (h)(4)); and (3) “[p]rovid[ing] another remedy as the court deems appropriate” (id., subd. (h)(5)).

rejecting an available remedy is, in effect, a partial denial of the objection — i.e., that the objection is denied to the extent it seeks a particular remedy.

When the trial court excused PJ 95, it necessarily rejected an otherwise available remedy for Northington’s objection to the peremptory challenge under section 231.7. This is because PJ 95 could no longer be seated as a juror once the court had excused her. (See Cal. Rules of Court, rule 2.1002(c)(2) [“Each trial court system must implement a . . . program under which a person’s jury service obligation is fulfilled when the person has: [¶] . . . [¶] [b]een assigned on one day to one or more trial departments for jury selection and served . . . until excused by the jury commissioner,” italics added].) Thus, the court, in effect, partially overruled Northington’s objection by excusing PJ 95 and taking the juror seating remedy off the table. And by evaluating Northington’s objection, at least in part, before hearing the prosecution’s reasons for the challenge, the court violated section 231.7.

The legislative history — which shows that the juror reseating remedy in section 231.7, subdivision (h)(3) is derived from one of the remedies available for a Batson/Wheeler violation — bolsters this conclusion. As the Assembly Judiciary Committee explained in its analysis of Assembly Bill No. 3070, a challenged juror may be reseated if the court “concludes that [the] juror has been improperly dismissed” under People v. Willis (2002) 27 Cal.4th 811. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 3070 (2019– 2020 Reg. Sess.) as amended May 4, 2020, pp. 3, 5, citing Willis.) In Willis, our high court held that a trial court could, “with the assent of the complaining party,” “reseat[ ] any improperly discharged jurors if they are available to serve” after granting a Batson/Wheeler motion. (Willis, at p. 821, italics added.) This remedy, in turn, contemplates the deferral of any decision to excuse the juror until the court has actually ruled on the motion.

(See, e.g., People v. Overby (2004) 124 Cal.App.4th 1237, 1242–1243; People v. Mata (2013) 57 Cal.4th 178, 187; People v. Singh (2015) 234 Cal.App.4th 1319, 1322–1325 [challenged juror asked to return to the court the next morning while the Wheeler motion was pending].) Otherwise, the juror would no longer be “available to serve.” (Willis, at p. 821.)

Finally, we note that the high court’s recent decision in SanMiguel does not compel a contrary conclusion. In SanMiguel, the high court construed subdivision (g) of section 231.7, which “lists reasons that have ‘historically been associated with improper discrimination in jury selection’ that relate to the prospective juror’s behavior, demeanor, or manner of answering questions.” (SanMiguel, supra, 20 Cal.5th at p. 274, quoting § 231.7, subd. (g)(1).) Under subdivision (g)(2), those reasons “are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or the observations of counsel for the objecting party.” (§ 231.7, subd. (g)(2).) Subdivision (g)(2) further states that “[e]ven with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried.” (Ibid.) Based solely on the language of subdivision (g), the high court found that there was no “particular sequence or order of operations in which confirmation of the behavior and explanation of its relevance must occur.” (SanMiguel, at p. 281.) Subdivision (g) is not, however, at issue in this case. Instead, the relevant subdivisions are subdivisions (b), (c), (d), and (h). And those subdivisions, when read together, make it clear that the court may not take an otherwise available remedy off the table before hearing the reasons for the peremptory challenge and ruling on the objection to that challenge.

In concluding that the trial court violated section 231.7, we are sympathetic to the court’s desire to minimize the burden on PJ 95 especially where, as here, the reasons for the peremptory challenge appeared both obvious and appropriate. Indeed, courts should always be solicitous of a juror’s time. But the need to be respectful of a juror’s time must yield to the requirements of the law. Moreover, there were ways to minimize the burden on PJ 95 short of excusing her. For example, given that Northington made her objection shortly before the noon recess, the court could have allowed the jurors to take that recess early, asked PJ 95 to remain in the courthouse until the court resolved Northington’s objection, and immediately resolved the objection. Alternatively, the court could have released the jurors, including PJ 95, for the noon recess but asked PJ 95 to watch her phone in case the court called to tell her that she had been excused from jury service. Both of these measures would have preserved all available remedies under section 231.7, subdivision (h) without forcing PJ 95 to wait unnecessarily for an extra hour or so.

Because section 231.7, subdivision (j) mandates reversal whenever “the objection was erroneously denied,” we must reverse the judgment and remand the case for a new trial on counts 1 and 3.6

C. CALCRIM No. 224 v. CALCRIM No. 225

Having concluded that a judgment of acquittal is required on the assault count and that Northington’s remaining convictions must be reversed under section 231.7, Northington’s contention that the trial court erred by giving CALCRIM No. 225, rather than CALCRIM No. 224, is moot. But

6 “No party in this case challenges the constitutionality of section 231.7

and we do not address the meaning or constitutionality of subdivision (j) here.” (SanMiguel, supra, 20 Cal.5th at p. 276, fn. 2.)

because Northington may be retried, we resolve this issue to provide guidance to the court on remand. (See Environmental Protection Information Center v. Department of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 223 [resolving issues raised by the parties “for the guidance of the trial court in the further proceedings”].)

Both CALCRIM No. 224 and CALCRIM No. 225 discuss the propriety of relying “on circumstantial evidence . . . to find the defendant guilty . . . .” The only difference between the two is that CALCRIM No. 225 is more specific because it references only the use of circumstantial evidence to prove a defendant’s “mental state.” Thus, the “Bench Notes” for CALCRIM No. 225 state that it should be given only “when the defendant’s intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. If other elements of the offense also rest substantially or entirely on circumstantial evidence, do not give this instruction.” (Judicial Council of Cal. Crim. Jury Instns. (2026) Bench Notes to CALCRIM No. 225, p. 55.) Here, other elements of the offenses allegedly committed by Northington — such as the acts required to violate those offenses — rest on circumstantial evidence. Accordingly, the trial court should have instructed the jury with the more general instruction, CALCRIM No. 224, rather than the more specific instruction, CALCRIM No. 225.

III. DISPOSITION

The judgment is reversed. This matter is remanded with instructions that the trial court enter a judgment of acquittal for Northington as to count 2 and hold a new trial on counts 1 and 3.

CHOU, J.

WE CONCUR.

JACKSON, P. J.

SIMONS, J.

A169576/ P. v. Northington

Trial Court: Superior Court of the County of Contra Costa

Trial Judge: Terri A. Mockler

Counsel: Alan Siraco, under appointment by the Court of Appeal, for

Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland and

Jeffrey M. Laurence, Assistant Attorneys General, Donna

M. Provenzano and Catherine A. Rivlin, Deputy Attorneys

General, for Plaintiff and Respondent.

People v. Northington

Authorities cited

Opinion · public domain