Gray

A prosecutor exercises peremptory challenges excusing the only three African-American males in the venire. Defendant's motion to compel the prosecution to justify these challenges is denied by the trial judge who rules that African-American males do not constitute a cognizable class for purposes of Wheeler. [1] The trial judge also refuses to permit the prosecutor to respond to the defense motion. The court erred in both of these rulings. Here we hold that African-American males are a cognizable class under Wheeler.

Michael Gray appeals from his conviction after jury trial for burglary. (Pen. Code, § 459.) [2] The jury found true the allegations that he has three prior serious felony convictions and that he served a prior felony prison term. (§§ 667, subds. (b)-(i), 667.5, subd. (b), 1170.12, subds. (a)(d).) The court sentenced Gray to prison for 26 years to life. In addition to his Wheeler claim, Gray contends the court abused its discretion by refusing to strike priors under Romero [3] or declaring the instant offense to be a misdemeanor under section 17, subdivision (b). [4]

The court's Wheeler error is reversible per se. [5] Accordingly, we reverse and do not…