Filed 6/30/03
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S097600
v.
) Ct.App.
1/2
A085450
JAY SHAWN JOHNSON,
Contra Costa County
Defendant and Appellant.
Super. Ct. No. 96-0691-4
During jury selection, each party is entitled to a limited number of
peremptory challenges. (Code Civ. Proc., § 231.) However, exercising
peremptory challenges to remove prospective jurors solely because of group bias,
for example, on racial grounds, violates both the California Constitution (People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler)) and the United States Constitution
(Batson v. Kentucky (1986) 476 U.S. 79 (Batson)). Both Wheeler and, later,
Batson established procedures for courts to follow when one party objects to the
other party’s peremptory challenges. Defendant contends that California’s
procedures violate Batson in two respects.
First, although both Wheeler and Batson require the objector to establish a
prima facie case of discriminatory use of peremptory challenges before the other
party must explain its challenges, Wheeler used two terms—“strong likelihood”
and “reasonable inference”—to describe the necessary showing of group bias;
Batson used the single term, “an inference of discriminatory purpose.” (Batson,
supra, 476 U.S. at p. 94; Wheeler, supra, 22 Cal.3d at pp. 280-281.) Defendant
argues that the “strong likelihood” standard states a different, and higher,
requirement for establishing a prima facie case than Batson permits.
Second, we have observed that comparing, for the first time on appeal, the
answers of excused jurors with those of jurors not excused to determine whether
the trial court erred in denying an objection to the use of peremptory challenges is
unreliable and fails to give due deference to the trial court’s ruling. (E.g., People
v. Box (2000) 23 Cal.4th 1153, 1190; People v. Montiel (1993) 5 Cal.4th 877, 909;
People v. Johnson (1989) 47 Cal.3d 1194, 1220-1222.) Defendant contends that
this rule against “comparative juror analysis” violates Batson.
We conclude that Wheeler’s terms, a “strong likelihood” and a “reasonable
inference,” refer to the same test, and this test is consistent with Batson. Under
both Wheeler and Batson, to state a prima facie case, the objector must show that
it is more likely than not the other party’s peremptory challenges, if unexplained,
were based on impermissible group bias. We also conclude that Batson does not
require state reviewing courts to engage in comparative juror analysis for the first
time on appeal. Finally, applying California’s procedures, which satisfy Batson,
to this case, we uphold the trial court’s finding that defendant failed to establish a
prima facie case that the prosecutor used his peremptory challenges improperly.
Accordingly, we reverse the judgment of the Court of Appeal, which
reached contrary conclusions.
I. FACTS AND PROCEDURAL HISTORY
A jury found defendant guilty of the second degree murder of the 19-
month-old daughter of his girlfriend and of assault resulting in the death of a child
under the age of eight. (Pen. Code, §§ 187, 273ab.) The issues before us solely
involve jury selection, so we focus on that process.
2
The district attorney exercised 12 peremptory challenges. He used three of
them to challenge all three African-American prospective jurors on the jury
panel—C.T., S.E., and R.L. After the second of these challenges, defendant made
a “Wheeler motion.” (Wheeler, supra, 22 Cal.3d 258.) He stated that his motion,
“[m]ore specifically . . . concerns [S.E.], the last individual who was eliminated by
the People.” He argued the prosecutor had no apparent reason to challenge this
prospective juror “other than [her] racial identity.” He made no argument
regarding C.T. The court responded that, “based on the record that’s been made,
[it] would find that there’s not been shown a strong likelihood that the exercise of
the peremptory challenges were based upon a group rather than an individual
basis. The Court has to start from the position of a premise that the exercises of
the peremptory challenges were based on constitutional grounds.” The court also
told the district attorney, however, that “we are very close.”
After the third of these challenges, defendant renewed his Wheeler motion.
Focusing this time on the most recent challenge, he based his motion on the
circumstance that the district attorney had removed all of the African-American
prospective jurors. The court denied the motion in a detailed ruling. Regarding
the most recent challenge, the court stated that it had had “concerns with regard to
her qualifications in this matter based upon her answers on the questionnaire;
specifically, the Court had noted that she had a sister who had had drug charges,
although her answers in follow-up verbally were such that the Court would not
have found that the issues were such to lead to a challenge for cause. May be
sufficient to justify a peremptory challenge by the People. [¶] Also, with regard
to her answers generally on the questionnaire itself, there was an indication that
she had difficulty understanding some of the issues, and specifically, her last
response which was somewhat rambling on the questionnaire indicated that she
herself felt that she had difficulty understanding things. Again, her verbal
3
responses here in court were such that I would not have granted a challenge for
cause on that basis, but the Court felt that the answers on the questionnaire were
sufficient that they certainly would have justified a peremptory challenge by either
side, frankly, based upon the concerns about her ability to understand the
proceedings.”
The court noted the rest of the district attorney’s challenges were against
“all other types of groups, including white women and white men as well.”
Regarding S.E., the court stated that it had been concerned about her, “including
the answer on question thirty that she gave verbally here in court that she had not
included in her questionnaire; a parent had a robbery or arrest, even though that
was a number of years ago, thirty years ago. Her answers on the record were not
as such that I would have granted a challenge for cause. Certainly, they could
justify a challenge by the People. [¶] She expressed on the record that she didn’t
know if she could be fair. Her verbal follow-up responses were not such that I
would have granted a challenge for cause. And also based upon the answers with
regard to question sixty-three . . . her emotions and feelings, again, her answers
were such that they may have caused concern for either side. Even though the
answers tend to lean in the favor of the prosecution in the case, neither side would
want a juror deciding a case based upon emotions, rather than the facts and the
evidence.” “In summary,” the court said, “with regard to the jurors, while the
Court would not grant the challenges for cause, there were answers . . . at least on
the questionnaires themselves such that the Court felt that there was sufficient
basis for the peremptory challenge. [¶] Even with the addition of [the most recent
challenge], the Court will not find a prima facie case.”
The Court of Appeal reversed the judgment. It found that the “strong
likelihood” standard the trial court applied violated Batson, supra, 476 U.S. 79.
Based primarily on its own comparison of answers the challenged jurors gave with
4
answers of nonchallenged jurors, the court concluded that “a prima facie case of
group bias was established and that the judgment must therefore be reversed.”
Justice Haerle dissented on all points.
We granted the Attorney General’s petition for review.
II. DISCUSSION
A. Background
Exercising peremptory challenges because of group bias rather than for
reasons specific to the challenged prospective juror violates both the California
Constitution and the United States Constitution. (Batson, supra, 476 U.S. 79;
Wheeler, supra, 22 Cal.3d 258.) Because Wheeler predated Batson, the Wheeler
court obviously did not have the benefit of Batson in establishing the procedures
to follow in California. Defendant argues that California’s procedures violate
Batson in two respects: (1) Wheeler’s “strong likelihood” standard, or at least the
way it was understood and applied in later cases, is a higher standard than Batson
permits; and (2) California law impermissibly restricts comparative juror analysis.
We discuss these contentions in order below, then review the trial court’s rulings.
But first, to fully understand these issues, it is necessary to review Wheeler and
Batson in detail.
1. Wheeler
In Wheeler, we concluded “that the use of peremptory challenges to remove
prospective jurors on the sole ground of group bias violates” the California
Constitution. (Wheeler, supra, 22 Cal.3d at p. 276.) We then turned to the
difficult question of what to do when one party objects to the other party’s
peremptory challenges on this basis. We began “with the proposition that in any
given instance the presumption must be that a party exercising a peremptory
challenge is doing so on a constitutionally permissible ground. . . . [¶] Yet it is
only a presumption, and must be rebuttable if the foregoing constitutional right is
5
not to be nullified even by honest zeal. The issue is what showing is necessary to
rebut it. We must define a burden of proof which a party may reasonably be
expected to sustain in meritorious cases, but which he cannot abuse to the
detriment of the peremptory challenge system.” (Id. at p. 278.)
We adopted the following procedure: “If a party believes his opponent is
using his peremptory challenges to strike jurors on the ground of group bias alone,
he must raise the point in timely fashion and make a prima facie case of such
discrimination to the satisfaction of the court. First, . . . he should make as
complete a record of the circumstances as is feasible. Second, he must establish
that the persons excluded are members of a cognizable group within the meaning
of the representative cross-section rule. Third, from all the circumstances of the
case he must show a strong likelihood that such persons are being challenged
because of their group association rather than because of any specific bias.”
(Wheeler, supra, 22 Cal.3d at p. 280, fn. omitted.) We discussed types of
evidence the objector may present to make this showing. “[T]he party may show
that his opponent has struck most or all of the members of the identified group
from the venire, or has used a disproportionate number of his peremptories against
the group. He may also demonstrate that the jurors in question share only this one
characteristic—their membership in the group—and that in all other respects they
are as heterogeneous as the community as a whole. Next, the showing may be
supplemented when appropriate by such circumstances as the failure of his
opponent to engage these same jurors in more than desultory voir dire, or indeed
to ask them any questions at all. Lastly, . . . the defendant need not be a member
of the excluded group in order to complain of a violation of the representative
cross-section rule; yet if he is, and especially if in addition his alleged victim is a
member of the group to which the majority of the remaining jurors belong, these
facts may also be called to the court’s attention.” (Id. at pp. 280-281, fn. omitted.)
6
We then discussed what the court must do. “Upon presentation of this and
similar evidence—in the absence, of course, of the jury—the court must determine
whether a reasonable inference arises that peremptory challenges are being used
on the ground of group bias alone. We recognize that such a ruling ‘requires trial
judges to make difficult and often close judgments. They are in a good position to
make such determinations, however, on the basis of their knowledge of local
conditions and of local prosecutors.’ [Citation.] They are also well situated to
bring to bear on this question their powers of observation, their understanding of
trial techniques, and their broad judicial experience. We are confident of their
ability to distinguish a true case of group discrimination by peremptory challenges
from a spurious claim interposed simply for purposes of harassment or delay.
“If the court finds that a prima facie case has been made, the burden shifts
to the other party to show if he can that the peremptory challenges in question
were not predicated on group bias alone. The showing need not rise to the level of
a challenge for cause. But to sustain his burden of justification, the allegedly
offending party must satisfy the court that he exercised such peremptories on
grounds that were reasonably relevant to the particular case on trial or its parties or
witnesses—i.e., for reasons of specific bias as defined herein. He, too, may
support his showing by reference to the totality of the circumstances: for example,
it will be relevant if he can demonstrate that in the course of this same voir dire he
also challenged similarly situated members of the majority group on identical or
comparable grounds. And again we rely on the good judgment of the trial courts
to distinguish bona fide reasons for such peremptories from sham excuses
belatedly contrived to avoid admitting acts of group discrimination.
“If the court finds that the burden of justification is not sustained as to any
of the questioned peremptory challenges, the presumption of their validity is
rebutted.” (Wheeler, supra, 22 Cal.3d at pp. 281-282, fn. omitted.)
7
2. Batson
In Batson, the United States Supreme Court held that principles of equal
protection “forbid discrimination on account of race in selection of the petit jury.”
(Batson, supra, 476 U.S. at p. 88.) It, too, discussed what to do when one party
objects to the other party’s peremptory challenges. “As in any equal protection
case, the ‘burden is, of course,’ on the defendant who alleges discriminatory
selection of the venire ‘to prove the existence of purposeful discrimination.’
[Citations.] In deciding if the defendant has carried his burden of persuasion, a
court must undertake ‘a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.’ [Citation.] Circumstantial evidence of
invidious intent may be proof of disproportionate impact. [Citation.] We have
observed that under some circumstances proof of discriminatory impact ‘may for
all practical purposes demonstrate unconstitutionality because in various
circumstances the discrimination is very difficult to explain on non-racial
grounds.’ [Citation.] For example, ‘total or seriously disproportionate exclusion
of Negroes from jury venires,’ [citation] ‘is itself such an “unequal application of
the law . . . as to show intentional discrimination,” ’ [citations].” (Id. at p. 93.)
A party alleging discriminatory use of peremptories “may make out a prima
facie case of purposeful discrimination by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose. [Citation.] Once the
defendant makes the requisite showing, the burden shifts to the State to explain
adequately the racial exclusion.” (Batson, supra, 476 U.S. at pp. 93-94.) In a
footnote, the court stated that its “decisions concerning ‘disparate treatment’ under
Title VII of the Civil Rights Act of 1964 have explained the operation of prima
facie burden of proof rules. See McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981);
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).
8
The party alleging that he has been the victim of intentional discrimination carries
the ultimate burden of persuasion. Texas Dept. of Community Affairs v. Burdine,
supra, at 252-256.” (Id. at p. 94, fn. 18.)
The high court discussed in detail the “standards for assessing a prima facie
case in the context of discriminatory selection of the venire . . . .” (Batson, supra,
476 U.S. at p. 96.) “[A] defendant may establish a prima facie case of purposeful
discrimination in selection of the petit jury solely on evidence concerning the
prosecutor’s exercise of peremptory challenges at the defendant’s trial. To
establish such a case, the defendant first must show that he is a member of a
cognizable racial group [citation], and that the prosecutor has exercised
peremptory challenges to remove from the venire members of the defendant’s
race.[1] Second, the defendant is entitled to rely on the fact, as to which there can
be no dispute, that peremptory challenges constitute a jury selection practice that
permits ‘those to discriminate who are of a mind to discriminate.’ [Citation.]
Finally, the defendant must show that these facts and any other relevant
circumstances raise an inference that the prosecutor used that practice to exclude
the veniremen from the petit jury on account of their race. This combination of
factors in the empanelling of the petit jury . . . raises the necessary inference of
purposeful discrimination.
1
Both Wheeler, supra, 22 Cal.3d 258, and Batson, supra, 476 U.S. 79, like
this case, involve criminal defendants claiming prosecutors impermissibly
challenged members of the defendants’ own ethnic group. Other cases have
expanded the prohibition into other circumstances. (E.g., J.E.B. v. Alabama ex rel.
T.B. (1994) 511 U.S. 127 [gender]; Georgia v. McCollum (1992) 505 U.S. 42
[defendant’s exercise of peremptory challenges]; Edmonson v. Leesville Concrete
Co., Inc. (1991) 500 U.S. 614 [civil cases]; Powers v. Ohio (1991) 499 U.S. 400
[defendant need not be member of the excluded group]; People v. Willis (2002) 27
Cal.4th 811 [defendant’s exercise of peremptory challenges].) We need not
consider these cases here.
9
“In deciding whether the defendant has made the requisite showing, the
trial court should consider all relevant circumstances. For example, a ‘pattern’ of
strikes against black jurors included in the particular venire might give rise to an
inference of discrimination. Similarly, the prosecutor’s questions and statements
during voir dire examination and in exercising his challenges may support or
refute an inference of discriminatory purpose. These examples are merely
illustrative. We have confidence that trial judges, experienced in supervising voir
dire, will be able to decide if the circumstances concerning the prosecutor’s use of
peremptory challenges creates a prima facie case of discrimination against black
jurors.” (Batson, supra, 476 U.S. at pp. 96-97.)
“Once the defendant makes a prima facie showing, the burden shifts to the
State to come forward with a neutral explanation for challenging black jurors. . . .
The prosecutor . . . must articulate a neutral explanation related to the particular
case to be tried. The trial court then will have the duty to determine if the
defendant has established purposeful discrimination.” (Batson, supra, 476 U.S. at
pp. 97-98, fns. omitted.) In a footnote, the court also stated, “Since the trial
judge’s findings in the context under consideration here largely will turn on
evaluation of credibility, a reviewing court ordinarily should give those findings
great deference.” (Id. at p. 98, fn. 21.)
In rejecting an argument that its holding could create serious administrative
difficulties, the high court noted that “[i]n those States applying a version of the
evidentiary standard we recognize today,” courts have not experienced these
difficulties. (Batson, supra, 476 U.S. at p. 99.) “For example, in People v. Hall,
35 Cal.3d 161, 672 P.2d 854 (1983), the California Supreme Court found that
there was no evidence to show that procedures implementing its version of this
standard, imposed five years earlier, were burdensome for trial judges.” (Id. at p.
99, fn. 23.)
10
B. The Necessary Showing for a Prima Facie Case
Wheeler used both the terms “strong likelihood” and “reasonable inference”
in describing the standard for a prima facie case. (Wheeler, supra, 22 Cal.3d at pp.
280, 281.) We believe it obvious that we considered the two terms to be different
phrasing of the same standard. Language in a 1994 Court of Appeal decision,
People v. Bernard (1994) 27 Cal.App.4th 458, however, created some uncertainty.
That case seemed to read the two terms as stating different standards, with
“reasonable inference” being a lower standard than “strong likelihood.” (Id. at p.
465.)
In Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190, the court found that, at
least after People v. Bernard, supra, 27 Cal.App.4th 458, “California state courts
have applied a lower standard of scrutiny to peremptory strikes than the federal
Constitution permits.” (Wade v. Terhune, supra, at pp. 1196-1197.) The court
noted also that, in recent years, this court has generally cited the “strong
likelihood” language rather than the “reasonable inference” language. (Id. at p.
1197.) It believed that California courts give criminal defendants less protection
than the United States Constitution requires “when they follow the Wheeler
‘strong likelihood’ test in determining whether a prima facie case has been
established.” (Wade v. Terhune, supra, at p. 1197.) In the court’s view, “the
Wheeler ‘strong likelihood’ test for a successful prima facie showing of bias is
impermissibly stringent in comparison to the more generous Batson ‘inference’
test.” (Ibid.) The court “therefore conclude[d] that California courts in following
the ‘strong likelihood’ language of Wheeler are not applying the correct legal
standard for a prima facie case under Batson.” (Ibid.)
Shortly after Wade v. Terhune, supra, 202 F.3d 1190, and in response to it,
we reiterated that “in California, a ‘strong likelihood’ means a ‘reasonable
inference,’ ” and disapproved People v. Bernard, supra, 27 Cal.App.4th 458, “to
11
the extent it is inconsistent with People v. Wheeler, supra, 22 Cal.3d at pages 280-
281.” (People v. Box, supra, 23 Cal.4th at p. 1188, fn. 7.) However, the Ninth
Circuit Court of Appeals held that this action did not cure the problem it
perceived, at least for cases tried after Bernard and before Box in which trial
courts were “following Bernard’s take on Wheeler.” (Cooperwood v. Cambra
(9th Cir. 2001) 245 F.3d 1042, 1047.) It said that “regardless” of our action in
People v. Box, supra, at page 1188, footnote 7, “whenever state courts use the
‘strong likelihood’ standard, . . . these courts are applying a lower standard of
scrutiny to peremptory strikes than the federal Constitution permits.”
(Cooperwood v. Cambra, supra, at p. 1047.) The majority below agreed and,
accordingly, found that the trial court used an impermissible standard in
determining whether defendant had established a prima facie case.
We reiterate what we implied in Wheeler and stated in Box: Wheeler’s
terms “strong likelihood” and “reasonable inference” state the same standard.
(People v. Box, supra, 23 Cal.4th at p. 1188, fn. 7; Wheeler, supra, 22 Cal.3d at
pp. 280-281.) This has always been true, although we recognize that People
v. Bernard, supra, 27 Cal.App.4th 458, may have created some uncertainty for a
few years. But the important question for current purposes is not whether
California courts have always viewed these terms as the same, but whether
California’s “strong likelihood” standard violates Batson. The Wade v. Terhune
court and the majority below assumed that Batson’s inference test is “more
generous” than Wheeler’s strong likelihood test without examining what the
United State Supreme Court itself has said on the matter. (Wade v. Terhune,
supra, 202 F.3d at p. 1197.) But to address this question, it is necessary to
delineate exactly what the high court meant when it equated the necessary prima
facie case with “an inference of discriminatory purpose.” (Batson, supra, 476
U.S. at p. 94.) We believe the court has made its meaning clear.
12
The high court appears to have given other courts some flexibility in
establishing the exact procedures to follow. “We decline, however, to formulate
particular procedures to be followed upon a defendant’s timely objection to a
prosecutor’s challenges.” (Batson, supra, 476 U.S. at p. 99.) Thus, to some extent
at least, Batson seems to have “left to lower courts the task of determining the type
and quantum of proof necessary for a defendant to establish a prima facie case.”
(State v. Duncan (La. 2001) 802 So. 2d 533, 545; see also Note, Batson v.
Kentucky and the Prosecutorial Peremptory Challenge: Arbitrary and Capricious
Equal Protection? (1988) 74 Va. L.Rev. 811, 817 [“The Supreme Court has left
the lower courts to grapple with the proper implementation of the Batson test.
They must determine not only the quantum of proof necessary for a defendant to
establish a prima facie case but also the types of explanations sufficient to rebut
the defendant’s claim”].) But whatever flexibility the high court has left state
courts, the California standard is not less generous than the test the Batson court
itself applies to establish a prima facie case.
In Batson, the court stated that its decisions under title VII of the Civil
Rights Act of 1964 “explained the operation of prima facie burden of proof rules.”
(Batson, supra, 476 U.S. at p. 94, fn. 18.) The court has since repeatedly cited title
VII cases as authoritative in the Batson context. (Miller-El v. Cockrell (2003) 537
U.S. 322, ___ [123 S.Ct. 1029, 1041] (Miller-El); Purkett v. Elem (1995) 514 U.S.
765, 768; Hernandez v. New York (1991) 500 U.S. 352, 359 (plur. opn.).) One of
the decisions the court cited in Batson, McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792, made clear that the plaintiff carried the initial burden of showing
actions “from which one can infer, if such actions remain unexplained, that it is
more likely than not that such actions were ‘based on a discriminatory criterion
illegal under the Act.’ ” (Furnco Construction Corp. v. Waters (1978) 438 U.S.
567, 576, italics added.) Another of the decisions that Batson cited explained that
13
the burden is not “onerous,” but the party nevertheless had to prove “by the
preponderance of the evidence a prima facie case of discrimination.” (Texas Dept.
of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-253, italics added.) It
stated that “the prima facie case ‘raises an inference of discrimination only
because we presume these acts, if otherwise unexplained, are more likely than not
based on the consideration of impermissible factors.” (Id. at p. 254, italics added.)
In one of the cases Batson cited, the high court recognized that the term
“prima facie case” is, by itself, ambiguous, so it specifically stated what it meant
in this context. “The phrase ‘prima facie case’ not only may denote the
establishment of a legally mandatory, rebuttable presumption, but also may be
used by courts to describe the plaintiff’s burden of producing enough evidence to
permit the trier of fact to infer the fact at issue. 9 J. Wigmore, Evidence § 2494
(3d ed. 1940). McDonnell Douglas should have made it apparent that in the Title
VII context we use ‘prima facie case’ in the former sense.” (Texas Dept. of
Community Affairs v. Burdine, supra, 450 U.S. at p. 254, fn. 7.) Thus, when it
refers to the objector establishing “an inference of discriminatory purpose”
(Batson, supra, 476 U.S. at p. 94), the high court means establishing a legally
mandatory rebuttable presumption, and not merely presenting enough evidence to
permit the inference.
Wigmore, in turn, goes into greater detail. He explains that the term
“ ‘prima facie case’ is used in two senses . . . .” (9 Wigmore, Evidence
(Chadbourne rev. ed. 1981) § 2494, p. 378.)2 The sense the high court does not
mean in this context created the lower of the two burdens—merely the “duty of
producing some evidence” sufficient to allow a matter to go to the jury.
2
We are quoting the most recent revision of this work rather than the earlier
version the high court cited in Texas Dept. of Community Affairs v. Burdine,
supra, 450 U.S. 248; the two versions are identical as relevant.
14
(Wigmore, at p. 379, italics added.) Wigmore also describes the sense in which
the high court uses the term. “[T]he term ‘prima facie’ is sometimes used as
equivalent to the notion of a presumption, even in the strict sense of a ruling of the
judge putting upon the opponent the duty of producing evidence.” (Ibid.) Thus, it
applies “where the proponent, having the burden of proving the issue (i.e., the risk
of nonpersuasion of the jury), has not only removed by sufficient evidence the
duty of producing evidence to get past the judge or the jury, but has gone further,
and, either by means of a presumption or by a general mass of strong evidence,
has entitled himself to a ruling that the opponent should fail if he does nothing
more in the way of producing evidence.” (Ibid., italics added.)
Thus, Batson permits a court to require the objector to present, not merely
“some evidence” permitting the inference, but “strong evidence” that makes
discriminatory intent more likely than not if the challenges are not explained.
Nothing suggests the high court has since modified Batson’s approach. Indeed, in
its most recent decision on this subject, it said it was considering “the three-step
framework mandated by Batson and reaffirmed in our later precedents” and, in
describing the prima facie case requirement, echoed Batson’s “inference”
language. (Miller-El, supra, 537 U.S. at pp. ___, ___ [123 S.Ct. at pp. 1040,
1045] [“the inference of discrimination to support a prima facie case”].)
Other states, although not all,3 have reached similar conclusions regarding
Batson’s meaning. Citing Texas Dept. of Community Affairs v. Burdine, supra,
450 U.S. at pages 252-253, the Connecticut Supreme Court has said that under the
3
The Colorado Supreme Court, for example, has interpreted Batson as not
requiring the defendant “to prove by a preponderance of the evidence that
discrimination occurred. Rather, the defendant must present evidence sufficient to
raise an inference that discrimination occurred.” (Valdez v. People (Colo. 1998)
966 P.2d 587, 590.) But the court did not examine what the high court itself has
stated on the question.
15
first stage of the Batson inquiry, the “defendant must establish by a preponderance
of the evidence a prima facie case of purposeful discrimination.” (State v.
Gonzalez (Conn. 1988) 538 A.2d 210, 213.) The Maryland Court of Appeals
recognized that Batson cited title VII cases “for an explanation of the operation of
prima facie burden of proof rules.” (Stanley v. State (Md. 1988) 542 A.2d 1267,
1271.) The Maryland Court of Appeals also concluded that “to make the prima
facie showing Batson requires, the moving party must ‘prove by a preponderance
of the evidence that the peremptory challenges were exercised in a way that shifts
the burden of production to the State and requires it to respond to the rebuttable
presumption of purposeful discrimination that arises under certain
circumstances.’ ” (Mejia v. State (Md. 1992) 616 A.2d 356, 361, quoting Stanley
v. State, supra, at p. 1277.)
Wheeler’s term “strong likelihood” signals that it meant “prima facie case”
in a similar sense.4 This burden is not onerous (Texas Dept. of Community Affairs
v. Burdine, supra, 450 U.S. at p. 253), but it is substantial. It is also appropriate to
compel the objecting party to meet this burden before it can force the other party
to explain the reasons for its peremptory challenges. The burden is one “which a
party may reasonably be expected to sustain in meritorious cases, but which he
cannot abuse to the detriment of the peremptory challenge system.” (Wheeler,
supra, 22 Cal.3d at p. 278.) The high court itself has noted that the Batson
4
The dissent claims Evidence Code section 600, subdivision (b), which
defines an inference as “a deduction of fact that may logically and reasonably be
drawn from another fact or group of facts found or otherwise established in the
action,” somehow supports its position. (Dis. opn., post, at p. 8.) The Wheeler
court certainly understood that an inference is a logical deduction of fact. But the
question here, which Evidence Code section 600 does not address, is how strong
the inference must be. In a criminal trial, for example, an inference of guilt must
be beyond a reasonable doubt. The dissent’s own unique proposed test—“a
substantial danger that the prosecutor’s challenges were based on improper
grounds”—is not found in Evidence Code section 600. (Dis. opn., post, at p. 9.)
16
analysis “permits prompt rulings on objections to peremptory challenges without
substantial disruption of the jury selection process.” (Hernandez v. New York,
supra, 500 U.S. at p. 358 (plur. opn.); see also id. at p. 374 (conc. opn. of
O’Connor, J.) [warning against “unacceptable delays in the trial process” that
would be “antithetical to the nature and purpose of the peremptory challenge”].)
The term “strong likelihood” has never set a higher standard than Batson
permits. Wheeler “define[d] a burden of proof . . . .” (Wheeler, supra, 22 Cal.3d
at p. 278.) “Except as otherwise provided by law,” the default burden of proof in
California is “proof by a preponderance of the evidence.” (Evid. Code, § 115; see
Conservatorship of Wendland (2001) 26 Cal.4th 519, 546.) Here, no other law has
provided for a different standard. This court has never suggested that Wheeler
imposed the burden of either clear and convincing proof or proof beyond a
reasonable doubt, the two higher burdens of proof that exist in this state. (Evid.
Code, § 115.) Moreover, the unqualified word “likelihood” would have been
insufficient to signal the correct standard. That word, or the equivalent “likely,”
has a range of meanings, including some lower than more likely than not. (See
People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 917, 922 [interpreting a
statute using the word “likely” as not requiring a showing of a “better than even”
chance].) Thus, qualifying “likelihood” with “strong” is appropriate and
consistent with Batson.
Although not dispositive, the Batson court itself considered Wheeler’s
procedures comparable to its own. It did not specifically cite Wheeler’s “strong
likelihood” language, but it referred to this court’s “procedures implementing its
version of [Batson’s evidentiary] standard” without suggesting there was anything
wrong with those procedures. (Batson, supra, 476 U.S. at p. 99, fn. 23.)
We disagree that the “strong likelihood” standard became too high in the
interval between People v. Bernard, supra, 27 Cal.App.4th 458, and People v.
17
Box, supra, 23 Cal.4th 1153. Bernard did not somehow transform “strong
likelihood” from a correct to an incorrect standard. Like the court in Wade v.
Terhune, supra, 202 F.3d 1190, and the majority below, the Bernard court did not
examine what Wheeler or the high court meant by the word “inference” in this
context. It misunderstood that meaning. The Bernard court said the presumption
that peremptory challenges are being used properly should be rebuttable “only by
a strong showing, not a mere inference,” because a different standard “might
easily transform removal of each and every prospective juror belonging to a
cognizable group into a Wheeler hearing.” (People v. Bernard, supra, at p. 465.)
It also referred to “a reduction of the prima facie standard to a ‘reasonable
inference’ test.” (Ibid.) This use of the word “inference” was akin to Wigmore’s
lower sense of evidence merely permitting one to draw an inference, not the higher
sense of Batson and Wheeler. Thus, to the extent Bernard erred, it was in
assuming “inference” was lower than it really is in this context, not in raising
“strong likelihood” to an impermissibly high standard.
Accordingly, Wheeler’s standard for establishing a prima facie case of
discriminatory use of peremptory challenges is, and always has been, compatible
with Batson. It merely means that to state a prima facie case, the objector must
show that it is more likely than not the other party’s peremptory challenges, if
unexplained, were based on impermissible group bias. The trial court here
properly cited the Wheeler standard in determining whether defendant had
established a prima facie case.
C. Appellate Use of Comparative Juror Analysis
The majority below compared the answers of challenged jurors with those
of nonchallenged jurors, a comparison not done at trial, in order to overturn the
trial court’s finding of no prima facie case. Defendant argues that doing so was
proper and that our cases, which he interprets as prohibiting all comparative juror
18
analysis, violate Batson, supra, 476 U.S. 79. Defendant misunderstands our
jurisprudence. We have observed that engaging in comparative juror analysis for
the first time on appeal is unreliable and inconsistent with the deference reviewing
courts necessarily give to trial courts, but we have never prohibited trial courts
from doing so or the party objecting to the challenges from relying on such
analysis in seeking to make a prima facie case.
In People v. Johnson, supra, 47 Cal.3d 1194, we revisited People v.
Trevino (1985) 39 Cal.3d 667, which had engaged in comparative juror analysis
for the first time on appeal. We found that Trevino had “placed undue emphasis
on comparisons of the stated reasons for the challenged excusals with similar
characteristics of nonmembers of the group who were not challenged by the
prosecutor. First, we note . . . that the comparison is one-sided since it ignores the
characteristics of the other . . . jurors against whom the prosecutor also exercised
peremptory challenges. [Citation.] Moreover, we fail to see how a trial judge can
reasonably be expected to make such detailed comparisons mid-trial.” (People
v. Johnson, supra, at p. 1220.)
We explained that “use of a comparison analysis to evaluate the bona fides
of the prosecutor’s stated reasons for peremptory challenges does not properly
take into account the variety of factors and considerations that go into a lawyer’s
decision to select certain jurors while challenging others that appear to be similar.
Trial lawyers recognize that it is a combination of factors rather than any single
one which often leads to the exercise of a peremptory challenge. In addition, the
particular combination or mix of jurors which a lawyer seeks may, and often does,
change as certain jurors are removed or seated in the jury box.” (People v.
19
Johnson, supra, 47 Cal.3d at p. 1220.)5 We found it apparent “that the very
dynamics of the jury selection process make it difficult, if not impossible, on a
cold record, to evaluate or compare the peremptory challenge of one juror with the
retention of another juror which on paper appears to be substantially similar.
[Attempting] to make such an analysis of the prosecutor’s use of his peremptory
challenges is highly speculative and less reliable than the determination made by
the trial judge who witnessed the process by which the defendant’s jury was
selected. It is therefore with good reason that we and the United States Supreme
Court give great deference to the trial court’s determination that the use of
peremptory challenges was not for an improper or class bias purpose.” (Id. at p.
1221.)
Accordingly, we disapproved People v. Trevino, supra, 39 Cal.3d 667, to
the extent it was inconsistent with these views and returned to a “standard of truly
giving great deference to the trial court in distinguishing bona fide reasons from
sham excuses.” (People v. Johnson, supra, 47 Cal.3d at p. 1221.) Like the high
court, we stated we “ ‘may assume that trial judges, in supervising voir dire in
light of our decision today, will be alert to identify a prima facie case of
purposeful discrimination.’ ” (Ibid., quoting Batson, supra, 476 U.S. at p. 99, fn.
22.)
Since then, we have not engaged in comparative juror analysis for the first
time on appeal. “If the trial court makes a ‘sincere and reasoned effort’ to evaluate
the nondiscriminatory justifications offered, its conclusions are entitled to
deference on appeal. In such circumstances, an appellate court will not reassess
good faith by conducting its own comparative juror analysis. Such an approach
5
This case presents an example. The district attorney accepted the jury four
times with C.T. on it before he peremptorily challenged her, apparently due to a
change in the jury’s composition.
20
would undermine the trial court’s credibility determinations and would discount
‘ “the variety of [subjective] factors and considerations,” ’ including ‘prospective
jurors’ body language or manner of answering questions,’ which legitimately
inform a trial lawyer’s decision to exercise peremptory challenges.” (People v.
Montiel, supra, 5 Cal.4th at p. 909.)
Defendant argues that any rule against comparative juror analysis is invalid
but, as a backup position, he also argues that, at least, the rule is limited to the
second stage of the trial court’s duty—judging the validity of the reasons for the
exercising of challenges after it has found a prima facie case—and does not apply
to the first stage—judging whether the objector has established a prima facie case
to begin with. We disagree. Although some of our decisions, including People v.
Johnson, supra, 47 Cal.3d 1194, did involve the second stage, others reviewed
trial court findings of no prima facie case. (E.g., People v. Box, supra, 23 Cal.4th
at pp. 1188, 1190; People v. Turner (1994) 8 Cal.4th 137, 167, 169-170.)
Differences do exist in the two procedural postures. At the first stage, the party
making the challenges is not asked to explain them, so the trial court does not have
to judge that party’s credibility. But the concerns about the inability of a
reviewing court to judge the dynamics of jury selection on a cold record apply to
both stages. A comparison of the jurors’ answers is unreliable when divorced
from the context of the trial. A trial court, but not a reviewing court, is able to
place the answers into context and draw meaning from all the circumstances,
including matters not discernable from the record.
Even the Ninth Circuit Court of Appeals, which has a different practice in
this regard than we (Burks v. Borg (9th Cir. 1994) 27 F.3d 1424, 1427), reviews a
trial court’s finding of no prima facie case deferentially. (Tolbert v. Page (9th Cir.
1999) 182 F.3d 677 (en banc).) Its reasoning for giving such deference echoes
ours both in giving similar deference and in not engaging in comparative juror
21
analysis for the first time on appeal. “[T]he trial court is better positioned to
decide the Batson prima facie issue, which involves a ‘ “factual inquiry” that
“takes into account all the possible explanatory factors” in the particular case.’
[Citation.] Whether or not ‘all the relevant circumstances’ ‘raise an inference’ of
discrimination will depend on factors such as the attitude and behavior of the
challenging attorney and the prospective jurors manifested during voir dire. As a
purely practical matter, the trial judge’s unique perspective of voir dire enables the
judge to have first-hand knowledge and observation of critical events. [Citation.]
The trial judge personally witnesses the totality of circumstances that comprises
the ‘factual inquiry,’ including the jurors’ demeanor and tone of voice as they
answer questions and counsel’s demeanor and tone of voice in posing the
questions. [Citation.] The trial judge is able to observe a juror’s attention span,
alertness, and interest in the proceedings and thus will have a sense of whether the
prosecutor’s challenge can be readily explained by a legitimate reason. . . . In
addition, the trial court is ‘experienced in supervising voir dire.’ [Citations.]
“The appellate court, on the other hand, must judge the existence of a prima
facie case from a cold record. An appellate court can read a transcript of the voir
dire, but it is not privy to the unspoken atmosphere of the trial court—the nuance,
demeanor, body language, expression and gestures of the various players.
[Citation.] . . . [T]he prima facie inquiry is so fact-intensive and so dependent on
first-hand observations made in open court that the trial court is better positioned
to decide the issue . . . .” (Tolbert v. Page, supra, 182 F.3d at pp. 683-684.)
“While [People v. Johnson, supra, 47 Cal.3d 1194] limits the scope of
appellate review of a trial court’s Batson determination, it does not preclude
comparative analysis by the trial court.” (Burks v. Borg, supra, 27 F.3d at p.
1428.) We do not, and cannot reasonably, require trial judges to perform such
analysis itself (People v. Johnson, supra, 47 Cal.3d at p. 1220), but the objecting
22
party may make the argument for the trial court to evaluate. For example, in
People v. Crittenden (1994) 9 Cal.4th 83, the defendant presented at trial
“evidence, compiled from the biographical information of 50 prospective jurors,”
and compared those jurors’ answers in support of his argument that the prosecutor
improperly challenged a particular juror. (Id. at p. 116.) As the reviewing court,
we considered this and other evidence and concluded that “[i]n light of all the
relevant circumstances, the trial court properly could find that defendant had not
made a prima facie showing . . . .” (Id. at p. 119.)
In support of his position, defendant cites Miller-El, supra, 537 U.S. 322
[123 S.Ct. 1029], but that case merely provides another example of a reviewing
court considering evidence of comparative juror analysis after it had been
presented to the trial court. Miller-El was tried before the decision in Batson,
supra, 476 U.S. 79. At trial, the defendant had objected that the prosecution was
using peremptory challenges discriminatorily, but the Batson procedures had not
yet been established. Batson was decided while the case was on appeal. The
Texas Court of Criminal Appeals remanded the case to the original trial court for
new findings in light of Batson. Defendant presented to the trial court several
types of evidence supporting a prima facie case. Before the original trial, he had
presented “evidence relating to a pattern and practice of race discrimination in the
voir dire.” (Miller-El, supra, 537 U.S. at p. ___ [123 S.Ct. at p. 1036].) Then,
two years later, “he presented, to the same state [trial] court, evidence that directly
related to the conduct of the prosecutors in his case.” (Ibid.) Some of the latter
evidence was comparative juror analysis of the type offered for the first time on
appeal here. (Id. at p. ___ [123 S.Ct. at p. 1043].) After the state courts denied
relief, the federal district court denied relief on federal habeas corpus, and the
appellate court denied a certificate of appealability which, under federal law,
prevented the defendant from appealing the matter. The United States Supreme
23
Court reversed the denial of a certificate of appealability. It did not directly
address the Batson question, but rather determined that the issue was “debatable”
and, under federal habeas corpus law, the appellate court should have considered it
on the merits. (Id. at p. ___ [123 S.Ct. at p. 1045].) Its discussion made clear that
the comparative juror analysis presented to the trial court was among the evidence
reviewing courts should consider. (Id. at p. ___ [123 S.Ct. at p. 1043].) This
conclusion is consistent with our practice. Nothing in Miller-El, however,
suggests that a reviewing court must engage in comparative juror analysis for the
first time on appeal.
Both Wheeler and Batson place the burden of making the prima facie
showing on the objecting party. (Batson, supra, 476 U.S. at p. 96 [“the defendant
must show that these facts and any other relevant circumstances raise an inference
that the prosecutor used that practice to exclude the veniremen from the petit jury
on account of their race”]; Wheeler, supra, 22 Cal.3d at p. 280 [the objecting party
must “make a prima facie case of . . . discrimination to the satisfaction of the
court,” should “make as complete a record of the circumstances as is feasible,”
and “from all the circumstances of the case . . . must show a strong likelihood” of
improper challenges].) Neither decision requires a reviewing court to search the
record itself for evidence that might have supplemented the objector’s showing.
Nor must the trial court consider arguments not made and evidence not presented,
although nothing prevents it from doing so in judging all of the circumstances.
Defendant argues that our statement that we cannot expect a trial judge “to
make such detailed comparisons mid-trial” (People v. Johnson, supra, 47 Cal.3d
at p. 1220) “overlooks the trial lawyers’ role.” He argues that the attorneys can
make these arguments to assist the trial court “because, under the adversary
system, the job of marshaling the relevant evidence is performed in the first
instance by the lawyers. Accordingly, comparative juror analysis can easily and
24
realistically be employed by state trial judges, too.” We agree. Indeed, as noted,
People v. Crittenden, supra, 9 Cal.4th 83, provides an example of the attorneys
doing just this for the trial court’s consideration. But defendant did not make this
kind of showing at trial, and we cannot expect the trial court to do so itself.
We have also said that comparative juror analysis is “largely beside the
point” because of the legitimate subjective concerns that go into selecting a jury.
(People v. Arias (1996) 13 Cal.4th 92, 136, fn. 16.) But it is not irrelevant.
Although such analysis, by itself, proves little, properly presented to the trial court,
it can be among the “all relevant circumstances” (Batson, supra, 476 U.S. at pp.
96-97) or “all the circumstances of the case” (Wheeler, supra, 22 Cal.3d at p. 280)
that the trial court must consider in making its determination.
In People v. Howard (1992) 1 Cal.4th 1132, we did not “limit[] our review
. . . solely to counsel’s presentation at the time of the motion. This is because
other circumstances might support the finding of a prima facie case even though a
defendant’s showing [was itself inadequate]. Nor should the trial court blind itself
to everything except defense counsel’s presentation. Indeed, we have emphasized
that such rulings require trial judges to consider ‘all the circumstances of the
case’ [citation] and call upon judges’ ‘ “powers of observation, their understanding
of trial techniques, and their broad judicial experience.” ’ [Citations.] The trial
judge in this case, for example, obviously knew that defendant belonged to the
same group as the challenged jurors and that his victims did not. Clearly these are
relevant factors [citation], and they were apparent to the trial court even though
defendant did not mention them during his Wheeler motion.” (Id. at p. 1155.)
“For these reasons,” we said, “when a trial court denies a Wheeler motion without
finding a prima facie case of group bias the reviewing court considers the entire
record of voir dire.” (Id. at p. 1155.) Certainly, the trial court should consider
obvious matters, and it can consider any other circumstances it finds relevant in
25
the particular case. But, midtrial, we cannot expect, and do not demand, trial
courts to engage sua sponte in the sort of comparative juror analysis that appellate
lawyers and courts can do after scouring the often-lengthy appellate record during
the appeal. And, given the inability of reviewing courts to reliably conduct such
analysis on a cold record, those courts are not required to do so for the first time
on appeal.
Defendant cites a number of federal cases that engage in comparative juror
analysis in a different way than we do. The Ninth Circuit, for example, has stated
that its practice is different than ours. (Burks v. Borg, supra, 27 F.3d at p. 1427.)6
Other courts may certainly adopt different procedures than we. But we do not
believe that comparative juror analysis for the first time on appeal is
constitutionally compelled. The Batson court itself stated that in deciding whether
the defendant has made the necessary showing, “the trial court should consider all
relevant circumstances.” (Batson, supra, 476 U.S. at pp. 96-97, italics added.) It
relies heavily on “trial judges, experienced in supervising voir dire,” to make this
determination. (Id. at p. 97.) “During jury selection, the entire res gestae take
place in front of the trial judge. Because the judge has before him the entire
venire, he is well situated to detect whether a challenge to the seating of one juror
is part of a ‘pattern’ of singling out members of a single race for peremptory
challenges.” (United States v. Armstrong (1996) 517 U.S. 456, 467-468.) The
“entire res gestae” do not take place in front of an appellate court.
The Batson court rejected the argument that its holding would “create
serious administrative difficulties” and noted that California had not found its own
6
That court also noted that the United States Supreme Court “has not yet
ruled on the role of comparative analysis on appellate review, so no one is quite
sure whether our circuit or the California Supreme Court is right.” (Burks v. Borg,
supra, 27 F.3d at p. 1427.)
26
version to be “burdensome for trial judges.” (Batson, supra, 476 U.S. at p. 99 &
fn. 23, citing People v. Hall (1983) 35 Cal.3d 161.) However, requiring trial
courts to engage in comparative juror analysis sua sponte in the middle of the trial
would be burdensome. Moreover, permitting appellate courts to overturn trial
court decisions based on their own comparative analysis of a cold record, divorced
from the nuances of trial not apparent from the record, is inconsistent with the
deference reviewing courts necessarily give trial courts. We see nothing in the
high court decisions requiring us to defer less to trial courts or engage in our own
comparative juror analysis for the first time on appeal.7
7
The dissent claims that our reliance on People v. Johnson, supra, 47 Cal.3d
1194, is misplaced because Johnson barred using comparative juror analysis on
appeal whether or not the parties raised that approach in the trial court. (Dis.
opn., post, at pp. 3-5.) Contrary to the dissent, Johnson’s underlying rationale was
predicated on the fact that the defendant made no comparative juror argument at
trial. We reasoned that: (1) a trial judge could not reasonably be expected to
make detailed comparisons of jurors midtrial sua sponte, and (2) without
explanation at trial from the party who exercised the challenge, comparative juror
analysis could not accurately take into account the various factors that influence
the decision to make a peremptory challenge. (Johnson, supra, at pp. 1220-1221.)
We then concluded, “It should be apparent, therefore, that the very dynamics of
the jury selection process make it difficult, if not impossible, on a cold record, to
evaluate or compare the peremptory challenge of one juror with the retention of
another juror which on paper appears to be substantially similar.” (Id. at p. 1221,
italics added.) In other words, the trial and appellate courts are in no position to
engage in comparative juror analysis on their own, without the issue first being
raised by the parties at trial. Our approach is entirely consistent with Johnson.
Contrary to the dissent, People v. Johnson, supra, 47 Cal.3d 1194 is also
entirely consistent with Miller-El. In that case, the high court had “no difficulty in
using comparative juror analysis” (dis. opn., post, at p. 6) because it was simply
reviewing the state court record, i.e., comparative juror evidence that the
defendant had first presented to the trial judge in support of his Batson motion.
(Miller-El, supra, 537 U.S. at pp. ___, ___ [123 S.Ct. at pp. 1035-1036, 1043-
1045].) Evidently, none of the parties disputed that a comparative juror analysis is
a proper or necessary procedure in deciding a Batson claim. Thus, that issue was
not before the high court, which only addressed whether the underlying evidence
27
Accordingly, we maintain our longstanding practice. When the objecting
party presents comparative juror analysis to the trial court, the reviewing court
must consider that evidence, along with everything else of relevance, in reviewing,
deferentially, the trial court’s ruling. When such an analysis was not presented at
trial, a reviewing court should not attempt its own comparative juror analysis for
the first time on appeal, especially when, as here, the record supports the trial
court’s finding of no prima facie case. While we decline to prohibit the practice
outright, we are hard pressed to envision a scenario where comparative juror
analysis for the first time on appeal would be fruitful or appropriate.
D. The Trial Court’s Ruling in this Case
We have already alluded to the standard of appellate review of a trial
court’s finding of no prima facie case. Because these rulings call upon trial
judges’ personal observations, we review them with considerable deference.
(People v. Jones (1998) 17 Cal.4th 279, 294.) Of course, “deference is not
abdication . . . .” (People v. Scott (1997) 15 Cal.4th 1188, 1212; see also Miller-
El, supra, 537 U.S. at p. ___ [123 S.Ct. at p. 1041] [“deference does not imply
abandonment or abdication of judicial review”].) Accordingly, we review the
entire record for evidence supporting the trial court’s ruling. But if the record
suggests grounds on which the prosecutor might reasonably have challenged the
jurors, we affirm that ruling. (People v. Howard, supra, 1 Cal.4th at p. 1155.)
The record here suggests grounds for the prosecutor to have reasonably
challenged these jurors. The trial judge, “who had performed much of and
observed the remainder of the voir dire, [and thus] was in the best position to
determine under ‘all the relevant circumstances’ of the case” whether a prima facie
showing existed (People v. Box, supra, 23 Cal.4th at p. 1189), mentioned reasons
before the state trial court supported the issuance of a certificate of appealability.
(Id. at pp. ___ [123 S.Ct. at pp. 1042-1045].)
28
as to two of the jurors. The court noted that these reasons did not warrant a
challenge for cause, but peremptory challenges need not be based on grounds for a
challenge for cause. (People v. Jones, supra, 17 Cal.4th at p. 294.) So far as we
can review the court’s reasons on the cold record, the record supports them.
Defendant has a different view of the significance of these jurors’ answers and
courtroom statements, but we see no basis on which to overturn the trial court’s
determinations.
As the majority below and defendant point out, the trial court did not
specifically discuss the third of the challenged jurors, C.T., who was actually the
first one challenged. But at trial, defendant did not argue that no reason existed to
challenge that juror. His first Wheeler motion was “specifically” directed towards
the challenge of S.E. His second Wheeler motion also never referred to C.T. The
court acted reasonably in discussing the arguments defendant made, not arguments
he did not make. Moreover, as the dissent below noted, the record discloses race-
neutral grounds for challenging C.T.: “(1) she was childless (this case involved
the death and alleged abuse of a minor), (2) the police had made no arrest after the
robbery of her home five or six years ago, and (3) she omitted to answer the two
questions in the questionnaire dealing with her opinions of prosecuting and
defending attorneys.” (Fn. omitted.) As that dissent also noted, “lack of family
may have appeared relevant to the prosecutor in a case involving child abuse and
reasonably could be deemed to constitute a non-discriminatory basis for striking
the venireman.” (U.S. v. Lewis (9th Cir. 1988) 837 F.2d 415, 417.)
Defendant stresses that the district attorney used three of his 12 peremptory
challenges to remove all three African-American prospective jurors, and this case
involves an African-American defendant charged with killing “his White
girlfriend’s child.” These circumstances are obviously highly relevant to whether
a prima facie case existed. (Wheeler, supra, 22 Cal.3d at pp. 280-281.) They
29
definitely warranted the trial court’s careful scrutiny, which that court gave. The
court considered the question close but found no prima facie case under all the
circumstances. We will not second-guess its determination by attempting a
comparative juror analysis for the first time on appeal.
An additional note about the circumstances of this case is in order.
Viewing these circumstances in isolation, it certainly looks suspicious that all
three African-American prospective jurors were removed from the jury. But
viewing a case like this in isolation is all a reviewing court can do. When this
issue comes before a reviewing court, the circumstances often will be akin to those
here. A reviewing court does not review the ordinary, nonsuspicious cases of jury
selection. (Nor does it review those cases in which the trial court grants a Wheeler
motion, so it also never sees those rulings.) A reviewing court does not see the big
picture; it cannot place a case like this into perspective. It cannot know whether a
case like this is typical, thus suggesting a real problem, or merely a statistical
aberration of the type that will inevitably occur occasionally given such a small
sampling. The trial court, however, is capable of seeing the big picture. It can
place a specific trial in a county into perspective. Trial judges “ ‘are in a good
position to make such determinations . . . on the basis of their knowledge of local
conditions and of local prosecutors.’ ” (Wheeler, supra, 22 Cal.3d at p. 281.) This
is another reason we must, and can, rely on trial courts to determine, from all the
relevant circumstances, whether a prima facie case of discriminatory use of
peremptory challenges exists.
Defendant cites Miller-El, supra, 537 U.S. ___ [123 S.Ct. 1029], in support
of his argument that a prima facie case existed here. In Miller-El, the prosecution
conceded in the high court that the defendant had established a prima facie case.
(Id. at p. ___ [123 S.Ct. at p. 1040].) But the evidence the defendant presented in
that case was far stronger than here. The defendant there presented several types
30
of evidence to the original trial court: (1) the statistical disparity of peremptory
challenges of African-Americans (10 of 11 were challenged) compared to others
(4 of 31 were challenged); (2) a comparison of the manner in which the
prosecution questioned African-Americans and others, which suggested “that the
manner in which members of the venire were questioned varied by race” (id. at p.
___ [123 S.Ct. at p. 1037]); (3) a comparison of the answers of prospective jurors
akin to the comparative juror analysis defendant attempts here to present for the
first time on appeal (id. at p. ___ [123 S.Ct. at p. 1043]); (4) the prosecution’s use
of a procedural practice unknown in California called “jury shuffling,” which can
be used to manipulate which prospective jurors are actually called;8 and (5)
evidence that the district attorney’s office historically had a pattern and practice of
racial discrimination in voir dire.
Here, defendant’s showing in the trial court consisted primarily of the
statistical disparity of peremptory challenges between African-Americans and
others. Regarding this type of evidence, Miller-El stated that “the statistical
evidence alone raises some debate as to whether the prosecution acted with a race-
based reason when striking prospective jurors. The prosecutors used their
peremptory strikes to exclude 91 % of the eligible African-American venire
members, and only one served on petitioner’s jury. In total, 10 of the prosecutors’
14 peremptory strikes were used against African-Americans. Happenstance is
unlikely to produce this disparity.” (Miller-El, supra, 537 U.S. at p. ___ [123
S.Ct. at p. 1042].) Here, the number of strikes is smaller, and thus perhaps more
explainable by happenstance: three of the prosecutors’ 12 peremptory strikes were
8
“On at least two occasions the prosecution requested shuffles when there
were a predominate number of African-Americans in the front of the panel,” with
the result that the African-Americans were spread out more randomly and thus less
likely to be called. (Miller-El, supra, 537 U.S. at p. ___ [123 S.Ct. at p. 1038].)
31
used against African-Americans. In one respect, however, the percentages are
even worse: the prosecutor challenged all three (100 percent) of the eligible
African-Americans. But the high court did not cite the statistical evidence to show
that it alone necessarily established a prima facie case, but only to support the
overall conclusion that the merits of the habeas corpus petition were sufficiently
debatable that the federal appellate court should have permitted an appeal. Here,
both the trial court and this court have considered the issue on the merits. The
statistics here are indeed troubling and, as the trial court stated, the question was
close, but, for the reasons explained, we see no basis to overturn the trial court’s
carefully considered ruling.
Defendant and the dissent (dis. opn., post, at p. 16) also argue that the
district attorney asked no questions of the African-American jurors he challenged.
This circumstance may also be relevant. (Wheeler, supra, 22 Cal.3d at p. 281.)
But this trial occurred in 1998, at a time the trial court had primary responsibility
for conducting voir dire. (Code Civ. Proc., former § 223, as added by Prop. 115,
approved by voters at Prim. Elec., June 5, 1990.) The district attorney asked no
questions of any prospective juror, including the nine of other ethnic groups he
also challenged. Thus, asking no questions was of little or no significance here.
III. CONCLUSION
California’s reviewing courts are as ready as any to combat the pernicious
effects of racial and other improper discrimination, in jury selection as in other
matters. (E.g., People v. Silva (2001) 25 Cal.4th 345, 386 [reversing a sentence of
death because of error as to a single prospective juror].) But, like the United
States Supreme Court, we necessarily, yet confidently, rely primarily on the good
judgment of our trial courts to make the difficult determinations the procedures
established in Batson, supra, 476 U.S. 79, and Wheeler, supra, 22 Cal.3d 258,
32
require. The record in this case provides no reason to believe the trial court here
failed to perform its duty properly.
Accordingly, we reverse the judgment of the Court of Appeal and remand
the matter for further proceedings consistent with our opinion.
CHIN,
J.
WE CONCUR:
GEORGE, C.J.
BAXTER, J.
BROWN, J.
MORENO, J.
33
CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.
I concur in parts I, II.A and II.C of the majority opinion. With respect to
the proper standard of proof for establishing a prima facie showing under People
v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79, I
dissent and join part II of Justice Kennard’s dissenting opinion.
WERDEGAR, J.
1
DISSENTING OPINION BY KENNARD, J.
A peremptory challenge is presumed to have been based on valid grounds.
If a defendant seeks to rebut this presumption, claiming that a prosecutor is
improperly using peremptory challenges to remove prospective jurors solely
because of group bias, the defendant must first establish a prima facie showing of
discriminatory use.1 (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).) If the trial court finds that a prima
facie case has been established, it will ask the prosecutor to explain the basis for
the peremptory challenges. If, after hearing the explanations, “the court finds that
the burden of justification is not sustained as to any of the questioned peremptory
challenges, the presumption of their validity is rebutted . . . and it must dismiss the
jurors thus far selected.” (Wheeler, supra, at p. 282.)
This case presents two issues concerning motions based on Wheeler and
Batson objecting to prosecutorial peremptory challenges: (1) Should this court use
comparative juror analysis – comparing the challenged jurors with others who
were not challenged – in reviewing the trial court decision that defendant had
failed to establish a prima facie showing that the prosecutor’s challenges had a
1
I speak of a prosecutor’s use of peremptory challenges and a defendant’s
objection because this case, like both Wheeler and Batson, arose in that factual
setting. The principles of those decisions, however, also apply to peremptory
challenges by a criminal defendant (Georgia v. McCollum (1992) 505 U.S. 42)
and to challenges by parties to civil cases (Edmonson v. Leesville Concrete Co.,
Inc. (1991) 500 U.S. 614).
1
discriminatory purpose? (2) What must a defendant prove to make that initial
prima facie showing of discriminatory purpose? On the first question, the
majority relies on People v. Johnson (1989) 47 Cal.3d 1194, to hold that an
appellate court ordinarily should not use comparative jury analysis in reviewing a
trial court’s denial of a Wheeler-Batson motion if the defendant has not raised that
analysis in the trial court. I agree with that result, but would reach it by a different
route. On the second question, the majority upholds the trial court’s ruling finding
no prima facie case on the ground that defendant failed to show that it is more
likely than not that the peremptory challenges had a discriminatory purpose. I
disagree with this standard, and would hold that a defendant need only prove facts
that, if unexplained, permit a reasonable inference of discriminatory purpose.
Even without using comparative juror analysis, the record here shows that
defendant met that standard.
I
Comparative juror analysis involves comparing the challenged jurors to
jurors who were not challenged to determine whether a proffered reason for a
challenge is genuine or pretextual. For example, if the prosecution says it
challenged juror A for not having a high school education, it would be of interest
whether the prosecution challenged jurors B and C who also lack that education.
If the prosecutor did, that would suggest that the proffered ground for challenge
was genuine; if not, it would suggest there was probably some other reason for the
challenge to juror A. Here, the trial court found defendant had not established a
prima facie showing that the prosecutor’s challenges had a discriminatory purpose
because, in the court’s view, the record showed neutral reasons why the prosecutor
might have challenged the jurors in question. The defense could have used
comparative juror analysis to question those reasons, but it did not do so. By
failing to use comparative juror analysis in the trial court, the defense not only
2
deprived the prosecution of the opportunity to explain the pattern of its preemptive
challenges to the trial court, but it also deprived the trial court of the opportunity to
evaluate that explanation in the context of the voir dire the court observed.
It is well settled that ordinarily an appellate court will not consider a theory
not raised at trial. (See generally 1 Appeals & Writs in Criminal Cases
(Cont.Ed.Bar 2d ed. 2000) § 1.165, pp. 164.2-165, and cases there cited; Erwin et
al., Cal. Crim. Defense Practice (2002) § 101.35, pp. 108-112 and cases there
cited.) “The general rule confining the parties on appeal to the theory advanced
below is based on the rationale that the opposing party should not be required to
defend for the first time on appeal against a new theory that ‘contemplates a
factual situation the consequences of which are open to controversy and were not
put in issue or presented at the trial.’ [Citation.]” (Ward v. Taggart (1959) 51
Cal.2d 736, 742.) There are many examples. (See, e.g., People v. Carrera (1989)
49 Cal.3d 291, 324 [appellant cannot raise new ground for claiming evidence was
inadmissible]; People v. Raley (1992) 2 Cal.4th 870, 898 [constitutional
contention cannot be raised on appeal when issue was argued only on statutory
grounds in the trial court].) Because defendant here failed to use comparative jury
analysis in the trial court, this rule precludes defendant from arguing that theory on
appeal.
The majority reaches the same conclusion, but instead of basing that
conclusion on well-settled principles of appellate review, it relies on a special
California rule barring appellate courts from undertaking comparative juror
analysis. This rule derives from People v. Johnson (1989) 47 Cal.3d 1194
(Johnson). Although the recitation of facts in Johnson suggests that the defendant
did not use a comparative juror analysis in arguing his Wheeler motion at trial, the
reasoning of this court did not rest on that fact. Instead, the Johnson majority gave
three reasons for eschewing use of comparative jury analysis: (1) that a trial judge
3
could not reasonably be expected to make detailed comparisons of jurors midtrial;
(2) that comparative juror analysis does not properly take into account the variety
of factors and considerations that influence the decision whom to challenge; and
(3) that a comparative juror analysis by an appellate court on a cold record is less
reliable than the decision of the trial court, which can observe the jurors and
appreciate the setting of the challenges. (Id. at pp. 1220-1221.)
Because those reasons apply whether or not the defendant argues
comparative juror analysis in the trial court, the more reasonable reading of
Johnson is that it barred the use of comparative juror analysis on appeal whether
or not that approach was urged before the trial court. Later decisions of this court
followed Johnson and without exception rejected comparative juror analysis.
None says that the reason for not engaging in comparative juror analysis was that
the defendant did not raise the matter at trial; many do not even indicate whether
the defendant urged comparative jury analysis in support of the motion in the trial
court. (See, e.g., People v. Catlin (2001) 26 Cal.4th 81, 119, fn. 5; People v.
Ayala (2000) 24 Cal.4th 243, 270; People v. Jones (1998) 17 Cal.4th 279, 295;
People v. Turner (1994) 8 Cal.4th 137, 164.)2 In People v. Montiel (1993) 5
Cal.4th 877, 911, this court refused to use comparative jury analysis on appeal
even though the prosecutor had used that analytic technique at trial to justify his
peremptory challenges.
But a unique California rule barring comparative juror analysis on appeal,
even if that technique were used in the trial court, would be constitutionally
2
People v. Crittenden (1994) 9 Cal.4th 83, is not necessarily an exception to
this pattern. The defendant there did raise comparative juror analysis at trial. On
appeal, this court did not review the defendant’s analysis and compare individual
jurors, but said that the analysis was inapplicable because the defendant was
comparing the challenged Black jurors to other jurors who had also been removed
by peremptory challenge.
4
suspect under the recent United States Supreme Court decision in Miller-El v.
Cockrell (2003) ___ U.S. ___ [123 S.Ct. 1029] (Miller-El).3 In Miller-El, the
question before the Supreme Court was whether the defendant’s Batson claim was
an appealable issue under 28 United States Code section 2253(c)(2), which
requires that the appellant demonstrate “a substantial showing of the denial of a
constitutional right.” (Ibid.) The majority used comparative juror analysis to
conclude that the defendant should have been given a certificate of appeal.
(Miller-El, supra, ___ U.S. at p. ___ [123 S.Ct. at pp. 1042-1043].) Justice Scalia,
concurring, also applied comparative juror analysis. (___ U.S. at p. ___ [123 S.Ct.
at pp. 1047-1048] (conc. opn. of Scalia, J.).) In dissenting, Justice Thomas
disagreed with conclusions of the majority’s comparative juror analysis, but not
with the appropriateness of the technique. (___U.S. at p. ___ [123 S.Ct. at
p. 1053] (dis. opn. of Thomas, J.).)
The United States Supreme Court ruling in Miller-El, supra, ___U.S. ___
[123 S.Ct. 1029], was made on what could be termed a “chilly,” if not a “cold,”
record. When the jury was selected, the defendant objected to its composition but
did not use comparative juror analysis. Two years later, after the high court’s
intervening decision in Batson, supra, 476 U.S. 79, the case was remanded to the
trial court. The original prospective jurors were not present, and it is open to
question how much the trial court could recall of the demeanor and body language
of prospective jurors or the circumstances of the challenges. The trial court’s
ruling on remand was based on a cold record – the written questionnaires and the
3
I was not yet on the court in February of 1989 when it decided People v.
Johnson, supra, 47 Cal.3d 1194, but I followed that precedent and concurred in
post-Johnson decisions rejecting comparative juror analysis. The United States
Supreme Court’s 2003 decision in Miller-El, supra, ___U.S. ___ [123 S.Ct. 1029]
has led me to reconsider the basis for this court’s rejection of comparative juror
analysis on appeal.
5
transcript of the voir dire – plus new testimony offered by the prosecutors to
explain their challenges. Yet the United States Supreme Court noted no difficulty
in using comparative juror analysis under those circumstances. The unhesitating
use of comparative juror analysis by all Supreme Court justices in Miller-El is a
striking contrast to the language of People v. Arias (1966) 13 Cal.4th 92, 136,
footnote 16, where this court declared that comparative juror “analysis is largely
beside the point, because it ignores the legitimate subjective concerns ‘that go into
a lawyer’s decision to select certain jurors while challenging others that appear to
be similar [on the cold record].’ ” Miller-El shows that comparative jury analysis
is very much on point when the trial court or the appellate court analyzes the
prosecution’s explanations for its peremptory challenges. Although the majority
here reinterpret Johnson, supra, 47 Cal.3d 1194, to permit appellate consideration
of comparative juror analysis when that issue was raised at trial, it does not
repudiate language from Johnson, Arias, at page 136, and other cases denigrating
that technique – language which is not in harmony with the United States Supreme
Court opinions in Miller-El.
The rules of appellate review are clear and simple: With certain exceptions,
none applicable here, a party cannot raise on appeal an issue the party neglected to
raise at trial. There is no reason to go beyond those rules to perpetuate a separate
doctrine that bars a party from raising comparative juror analysis on appeal when
it has not been raised at trial.
II
In Wheeler, supra, 22 Cal.3d 258, we used two different phrases to describe
the standard for a prima facie case. We first said that the moving party “must
show a strong likelihood that such persons are being challenged because of their
group association rather than because of any specific bias.” (Id. at p. 280, italics
added.) We also said, however, that upon the presentation of the moving party’s
6
evidence, “the court must determine whether a reasonable inference arises that
peremptory challenges are being used on the ground of group bias alone.” (Id. at
p. 281, italics added.) Later cases have debated whether these two phrases state
the same standard or two different standards. (Compare People v. Box (2000) 23
Cal.4th 1153, 1188 [same standard] with Cooperwood v. Cambra (9th Cir. 2001)
245 F.3d 1042, 1047; and Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190, 1196-
1197 [two different standards].)
The majority here reaffirms People v. Box, supra, 23 Cal.4th 1153, and
holds that Wheeler’s “strong likelihood” and “reasonable inference” language
states the same standard. But it then goes beyond Box to describe the standard as
requiring a defendant seeking to establish a prima facie case to persuade the trial
court that it is more likely than not that the prosecution’s challenges had a
discriminatory purpose. The correct standard, however, is that the defendant must
present facts that support a reasonable inference of discriminatory purpose. The
distinction is subtle but crucial. A defendant will often be able to present facts,
such as a pattern of prosecution challenges, from which a reasonable person can
infer discriminatory purpose, but it is only at the next stage, when the prosecutor
explains or fails to explain the challenges, that the trial court can determine
whether the challenges actually were improper. Requiring a defendant to persuade
the trial court of the prosecutor’s discriminatory purpose at the first Wheeler-
Batson stage short-circuits the process, and provides inadequate protection for the
defendant’s right to a fair trial under the equal protection clause of the federal
Constitution (Batson, supra, 476 U.S. at pp. 84-89) and his right to a
representative jury under the state Constitution (Wheeler, supra, 22 Cal.3d at
pp. 276-277).
Wheeler, as I noted, used two terms—“reasonable inference” and “strong
likelihood”—to define a party’s initial burden. “Inference” is defined by statute; it
7
is “a deduction of a fact that may logically and reasonably be drawn from another
fact or group of facts found or otherwise established in the action.” (Evid. Code,
§ 600.) It is presumed that the Legislature, when it enacts a law that uses a term
defined in another statute, is aware of the statutory definition. (Colmenares v.
Braemer Country Club, Inc. (2003) 29 Cal.4th 1019, 1030; People v. Broussard
(1993) 5 Cal.4th 1067, 1080.) By the same reasoning, it should be presumed that
the Wheeler court was cognizant of the statutory definition of “inference” when it
used that term to describe the standard of proof of a prima facie case. California
cases elucidate this definition: an inference “is more than a surmise or a
conjecture” (Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769,
800) and must be based on probabilities, not possibilities (ibid.); “it is a reasonable
deduction from the facts proved and, of course, must be logical” (Estate of
Braycovich (1957) 153 Cal.App.2d 505, 512). An inference, however, is
permissive, and often a single set of facts can support multiple, conflicting
inferences. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 337 [“If
such evidence logically supports conflicting inferences . . .”]; People v. Cooper
(1991) 53 Cal.3d 771, 809 [“if the prospective juror’s responses are equivocal, i.e.,
capable of multiple inferences . . .”]; Unified Sch. Dist. v. Commission on
Professional Competence (1977) 20 Cal.3d 309, 314 [“When more than one
inference can be reasonably deduced from the facts . . .”].)
“Likelihood,” on the other hand, has no statutory definition. In People v.
Superior Court (Ghilotti) (2002) 27 Cal.4th 888, this court said it did not
necessarily mean “more likely than not.” (Id. at p. 916.) We then construed that
term to describe a standard less demanding than preponderance of the evidence,
holding that consistent with the purpose of the Sexually Violent Predators Act
(Welf. & Inst. Code, § 6600 et seq.), a sexual offender should be considered to be
“likely” to reoffend “if he or she presents a substantial danger – that is, a serious
8
and well-founded risk – of reoffending.” (Ghilloti, supra, 27 Cal.4th at p. 916,
italics omitted.)
If we merge the two concepts – reasonable inference and strong likelihood
– we emerge with the conclusion that the defendant must show facts from which
one could logically deduce that there was a substantial danger that the prosecutor’s
challenges were based on improper grounds. Such a test is less demanding than
the majority’s requirement of persuading the trial court that discriminatory
purpose is more likely than not.
Although past California cases have referred to both the “reasonable
inference” and “strong likelihood” standards, none required the defendant to
persuade the trial court, at the first stage of a Wheeler-Batson proceeding, that the
challenges more likely than not had a discriminatory purpose. The vast majority
of decisions from other jurisdictions permit the defendant to establish a prima
facie case by raising a reasonable inference of discriminatory purpose; they do not
require the defendant to persuade the trial court that discriminatory intent is more
likely than not.4 The majority here cites only two decisions from other states as
supporting the standard it adopts. Both offer only weak and uncertain support.
The majority first cites State v. Gonzalez (Conn. 1988) 538 A.2d 210, 213,
where the court said that “a defendant must establish by a preponderance of the
evidence a prima facie case of purposeful discrimination.” But Connecticut
4 See
Cooperwood v. Cambra, supra, 245 F.3d at p. 1046; Jordan v. Lefevre
(2d Cir. 2000) 206 F.3d 196, 200; Wade v. Terhune, supra, 202 F.3d at p. 1197;
Central Alabama Fair Housing Center, Inc. v. Lowder Realty (11th Cir. 2000) 236
F.3d 629, 636-637; Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 679; Tankleff v.
Seakowski (2d Cir. 1998) 135 F.3d 235, 249; Mahaffey v. Page (7th Cir. 1998) 162
F.3d 481, 485; Borks v. Borg (9th Cir. 1994) 27 F.3d 1424, 1428; United States v.
Johnson (8th Cir. 1989) 873 F.2d 1137, 1140; United States v. Chinchilla (9th Cir.
1989) 874 F.2d 695, 698; United States v. Chalan (10th Cir. 1987) 812 F.2d 1302,
1314; Valdez v. People (Colo. 1998) 966 P.2d 587, 590.
9
adhered to that rule for only a year. In 1989 the Connecticut Supreme Court,
under its authority to supervise the administration of justice, abolished the prima
facie case requirement, and established a one-stage procedure. (State v. Holloway
(Conn. 1989) 553 A.2d 166, 171-172.) Quoting a decision of the South Carolina
Supreme Court, the Connecticut Supreme Court said: “ ‘Rather than deciding on
a case by case basis whether the defendant is entitled to a hearing based upon a
prima facie showing of purposeful discrimination under the vague guidelines set
forth by the United States Supreme Court, the better course to follow would be to
hold a Batson hearing on the defendant’s request whenever the defendant is a
member of a cognizable racial group and the prosecutor exercises peremptory
challenges to remove members of defendant’s race from the jury.’ ” (State v.
Holloway, supra, 553 A.2d at p. 172, fn. 4, quoting State v. Jones (S.C. 1987) 358
S.E.2d 701, 703.)
The majority also cites Stanley v. State (Md. 1988) 542 A.2d 1267, which
said that the defendant must “prove by a preponderance of the evidence that the
peremptory challenges were exercised in a way that shifts the burden of
production to the State.” (Id. at p. 1277.) But Stanley goes on to quote a decision
of the Florida Supreme Court that in evaluating a defendant’s showing, “ ‘any
doubt as to whether the complaining party has met its initial burden should be
resolved in that party’s favor.’ ” (Ibid., quoting State v. Slappy (Fla. 1988) 522
So.2d 18, 22.) Finally, Stanley established a bright-line rule that the exclusion of
every member of defendant’s racial group established a prima facie case.
(Stanley, at p. 1284.)
The majority derives its standard not from lower court decisions that
directly address the burden of establishing a prima facie case under Wheeler or
Batson, but from references in Miller-El, supra, ___ U.S. ___ [123 S.Ct. 129] and
Batson, supra, 476 U.S. 79, to cases under title VII of the Civil Rights Act of
10
1964 (42 U.S.C. § 2000e et seq.) involving alleged invidious discrimination in
connection with employment. Although neither Miller-El nor Batson involved
the standard for proof of a prima facie case, the majority views the high court’s
references as a general endorsement of title VII standards and procedures for use
in evaluating Batson motions. And the majority asserts that in a title VII case, to
establish a prima facie case, the plaintiff must prove that unlawful discrimination
is more likely than not. (See maj. opn., ante, at pp. 13-14.)
The majority’s analysis, however, oversimplifies and misunderstands title
VII procedure. A title VII plaintiff has the ultimate burden of proving
discrimination by a preponderance of the evidence, but whether a plaintiff has
met that burden is assessed at the last stage in the procedure. To establish a prima
facie case in the first stage, a title VII plaintiff is not required to show it is more
likely than not that the defendant engaged in illegal discrimination. Instead, the
title VII plaintiff is required to prove facts from which one can infer illegal
discrimination.
In McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, and later cases
the high court said that a plaintiff alleging unlawful discrimination must, to
establish a prima facie case, prove certain specific facts and actions 5 “from
which one can infer, if such actions remain unexplained, that it is more likely than
not that such actions were ‘based on a discriminatory criterion illegal under the
5
The specific facts and actions the plaintiff must prove to establish a prima
facie case of discriminatory purpose under McDonnell Douglas are: “(i) that he
belongs to a racial minority; (ii) that he applied and was qualified for a job for
which the employer was seeking applicants; (iii) that, despite his qualifications, he
was rejected; and (iv) that, after his rejection, the position remained open and the
employer continued to seek applicants from persons of complainant’s
qualifications.” (McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p. 802.)
11
Act.’ ” (Furnco Construction Corp. v. Waters (1978) 438 U.S. 567, 576, quoting
Teamsters v. United States (1977) 431 U.S. 324, 358.)
Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, a title
VII case, further explained this same standard. It said: “The burden of
establishing a prima facie case of disparate treatment is not onerous. The plaintiff
must prove by a preponderance of the evidence that she applied for an available
position for which she was qualified, but was rejected under circumstances which
give rise to an inference of unlawful discrimination.” (Burdine, supra, 450 U.S.
at p. 253, italics added, fn. omitted.)
The next major decision, St. Mary’s Honor Center v. Hicks (1993) 509 U.S.
502, addressed the question whether the trial court in a title VII action must give
summary judgment for the plaintiff if the court had found a prima facie case and
determined that the employer’s explanation of its action was pretextual. The
United States Supreme Court held that the trial court need not give judgment for
the plaintiff under those circumstances. The court explained that once a plaintiff
has proved facts that give rise to a prima facie case, a presumption of
discriminatory purpose arises. The presumption serves the practical function of
inducing the defendant to offer an explanation for its actions. (Id. at p. 510, fn.
3.) Once the defendant offers the explanation, the presumption disappears, and
the trial court must decide whether a preponderance of the evidence shows that
the employer acted with a discriminatory purpose. (Id. at pp. 509-510 and fn. 3.)
In Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133
(Reeves) the high court again explained title VII procedure. At issue in Reeves
was whether the trial court must give judgment for the defendant if the plaintiff
presented no additional evidence to rebut the defendant’s explanation of its
actions. The court said the defendant was not automatically entitled to judgment
under these circumstances; instead, the trier of fact still had the duty to determine
12
at the last stage of the procedure whether the plaintiff had proved discriminatory
purpose by a preponderance of the evidence. (Id. at pp. 142-143.) That decision
should take into account “the strength of the plaintiff’s prima facie case, the
probative value of the proof that the employer’s explanation is false,” and the
other evidence, if any, presented by the parties. (Id. at pp. 148-149.)
The high court’s insistence that the trial court determine whether a
defendant acted with discriminatory purpose at the last stage, regardless of the
falsity or weakness of the defendant’s explanation of its actions, is consistent with
its language asserting that at the first stage the plaintiff need only prove facts
from which discriminatory purpose can be inferred. It would, however, be
difficult to reconcile the United States Supreme Court’s position with the view of
the majority here. Under the majority’s view, when the trial court finds a prima
facie case it necessarily finds that the plaintiff has shown it is more likely than not
that the employer had a discriminatory purpose. If the employer offers no
persuasive explanation, then the trial court, having already found that the plaintiff
has met the burden of proof, would have to find for the plaintiff. That indeed is
what the Eighth Circuit held in Hicks v. St. Mary’s Honor Center (8th Cir. 1992)
970 F.2d 487, and the high court’s decision reversing the circuit court’s decision
(St. Mary’s Honor Center v. Hicks, supra, 509 U.S. 502) shows that the Supreme
Court does not consider a finding of a prima facie case the equivalent of a finding
that the plaintiff has proved discriminatory purpose.
Gay v. Waiters’ and Dairy Lunchmen’s Union (9th Cir. 1982) 694 F.2d
531, a title VII case, explains in more detail the proof of a prima facie case under
McDonnell Douglas: “ . . . McDonnell Douglas says nothing directly about the
need to prove discriminatory intent. ‘[T]he evident thought was that proof of the
four elements warranted an inference of such intent unless the defendant
presented at least some evidence in rebuttal.’ Lieberman v. Gant, 630 F.2d 60, 63
13
(2d Cir. 1980) (fn. omitted). . . . [¶] Viewed in this light, the role of the
McDonnell Douglas prima facie case is closely analogous to its role in general
civil litigation: it presents the legal question whether the plaintiff has met his
burden of production, coming forward with sufficient probative evidence to
permit a rational jury, or court, to find the material facts in his favor, thus
avoiding a directed verdict or motion for judgment as a matter of law. A prima
facie case of intentional discrimination is established if the plaintiff proves facts
‘from which one can infer, if such actions remain unexplained, this it is more
likely than not’ that the defendant’s conduct was racially motivated. Furnco
Construction Corp. v. Waters, 438 U.S. 567, 576 . . . . As an inference, it can but
need not result in an ultimate judgment for the plaintiff. In other words, a prima
facie case under McDonnell Douglas is one in which the plaintiff has met his
immediate burden of production, but not necessarily his ultimate burden of
persuasion.” (Gay v. Waiters’ and Dairy Lunchmen’s Union, supra, 694 F.2d at
p. 543, fn. 10.)
Tompkins v. State (Tex. Ct. Crim. App. 1987) 774 S.W.2d 195, 201, a
Batson case, relied on title VII cases for the principle that: “A prima facie case
represents the minimum quantum of evidence necessary to support a rational
inference that the allegation of fact is true.”
Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, also described the
title VII procedure. This court said that the purpose of the prima facie case
requirement was “to eliminate at the outset the most patently meritless claims, as
where the plaintiff is not a member of the protected class or was clearly
unqualified . . . .” (Guz, at p. 354.) “While the plaintiff’s prima facie burden is
‘not onerous’ [citation], he must at least show ‘ “actions taken by the employer
from which one can infer, if such actions remain unexplained, that it is more
likely than not that such actions were ‘based on a [prohibited] discriminatory
14
criterion . . . .’ ” ’ [Citations.]” (Id. at p. 355.) What actions, when proved by a
preponderance of the evidence, give rise to an inference of unlawful
discrimination under title VII procedure? The cases answer this question; it is
those actions that, if unexplained, permit a reasonable inference of an improper
purpose or motive. (Texas Dept. of Community Affairs v. Burdine, supra, 450
U.S. at p. 254; Furnco Construction Corp. v. Waters, supra, 438 U.S. at p. 576.)
I focus on the italicized phrase, because it is here that the trial court went wrong
in the case before us.
The ultimate issue raised by a Wheeler-Batson motion is not whether the
trial judge, or an appellate court, can find a possible neutral reason why a
prosecutor might want to challenge a juror, but whether the prosecutor’s actual
reason for the challenge was based on group bias. “[T]he trial court must
determine not only that a valid reason existed but also that the reason actually
prompted the prosecutor’s exercise of the particular peremptory challenge.”
(People v. Fuentes (1991) 54 Cal.3d 707, 720; People v. Turner (1986) 42 Cal.3d
711, 721.)6
The threshold for establishing a prima facie case should be relatively low,
so that close cases are not decided at the first stage of the inquiry, but only after
the trial judge has heard the prosecutor’s explanations and is in a better position to
determine the propriety of the challenges. In fact, this may be the common
practice. This court frequently encounters cases in which the pattern of challenges
suggests but does not prove discriminatory purpose and the trial judge asks for an
6
In title VII cases, the trial court may find for the employer defendant even if
the reason it gave was a sham, if the evidence shows that the defendant gave the
false explanation to conceal something other than discrimination, and had a
nondiscriminatory reason for its action. (See Reeves, supra, 530 U.S. at p. 148.)
But the nondiscriminatory reason must be the defendant’s reason.
15
explanation without expressly finding a strong likelihood that the challenges were
improper. (See, e.g., People v. Arias (1996) 13 Cal.4th 92, 136; People v. Jackson
(1996) 13 Cal.4th 1164, 1197.) At times prosecutors even volunteer an
explanation without being asked. (See, e.g., People v. Williams (1997) 16 Cal.4th
635, 664; People v. Howard (1992) 1 Cal.4th 1132, 1153, fn. 3.) Establishing a
low threshold for a prima facie case recognizes that the prosecutor’s explanation is
often critical to the decision whether the challenge was proper: just as a
reasonable explanation will dispel the suspicion of group bias, “[p]roof that [an]
explanation is unworthy of credence is . . . probative of intentional discrimination,
and it may be quite persuasive.” (Reeves, supra, 530 U.S. at p. 147 [title VII
case].) The approach set out by the majority would, by contrast, compel trial
judges to make decisions when they can only speculate as to the basis for the
challenges.
Here defendant showed that the prosecutor challenged all three Blacks on
the jury panel, used a disproportionate number of his peremptory challenges
against members of that racial group, and failed to engage in any questioning
whatever of any these prospective jurors notwithstanding invitations to do so by
the trial court. With respect to two of the three jurors, there is nothing in their oral
or written responses that stands out to show they would be unacceptable jurors.
Of course there still may be neutral explanations for the challenges, and if
it is apparent that the prosecutor had neutral reasons for the challenges, then the
pattern of challenges would not give rise to an inference of discriminatory
purpose. In such cases the trial court need not find a prima facie case. (See
People v. Bittaker (1989) 48 Cal.3d 1046, 1092; People v. Howard, supra, 1
Cal.4th 1132, 1205 (dis. opn. of Kennard, J.).) But that rule should not apply
when the trial court can only speculate on the basis for the challenges. (Howard,
supra, at p. 1207.) The prosecutor does not need to have reasonable grounds for
16
challenging a juror; the challenge passes constitutional scrutiny if it is based on
any nondiscriminatory ground. (See Purkett v. Elem (1995) 524 U.S. 765, 768
[prosecutor did not like juror’s haircut].) The ability of the trial court to find such
a neutral explanation should not defeat the defendant’s prima facie case when it is
not apparent that the explanation was the true reason for the challenge. In the
case before us, for example, the trial court said one reason for the prosecution’s
challenge of Juror S. E. could have been her answer to question 63 on the juror
questionnaire. In that answer, S. E. expressed sympathy for the victim. Such
sympathy would have been a neutral basis for a challenge, but was not an obvious
basis for a prosecution challenge because a prosecutor would generally view a
juror who expressed sympathy for the victim as a favorable juror. The other
explanations for the prosecutor’s challenges suggested by the trial court are also
implausible. Thus, the pattern of prosecution challenges here created a
reasonable inference of discriminatory purpose, which in the absence of any
explanation from the prosecutor is not overcome by the possibility that the
challenges could have been based on neutral grounds.
The trial court should have found a prima facie case and asked the
prosecutor to explain the basis for the challenges. The court’s failure to do so is
error, and reversible per se. (See People v. Fuentes, supra, 54 Cal.3d at p. 715;
People v. Snow (1987) 44 Cal.3d 216, 226-227; People v. Turner, supra, 42 Cal.3d
at p. 728.)
KENNARD,
J.
17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Johnson (Jay)
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 88 Cal.App.4th 318
Rehearing Granted
__________________________________________________________________________________
Opinion No. S097600
Date Filed: June 30, 2003
__________________________________________________________________________________
Court: Superior
County:Contra Costa
Judge: Patricia K. Sepulveda
__________________________________________________________________________________
Attorneys for Appellant:
Stephen B. Bedrick, under appointment by the Supreme Court, for Defendant and Appellant.
Bradley A. Bristow for California Public Defenders Association as Amicus Curiae on behalf of Defendant
and Appellant.
Lynne S. Coffin, State Public Defender, Raoul D. Schonemann, Deputy State Public Defender; and Alan L.
Schlosser for Office of the State Public Defender and American Civil Liberties Union of Northern
California as Amici Curiae on behalf of Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Martin S. Kaye, Richard
Rochman, Ronald S. Matthias, Catherine A. McBrien, Laurence K. Sullivan and Seth K. Schalit, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Stephen B. Bedrick
1970 Broadway, Suite 1200
Oakland, CA 94612
(510) 452-1900
Seth K. Schalit
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1371
2
Opinion Information
| Date: | Docket Number: |
| Mon, 06/30/2003 | S097600 |
Parties
| 1 | Johnson, Jay Shawn (Defendant and Appellant) Represented by Stephen B. Bedrick Attorney At Law 1970 Broadway, Suite 1200 Oakland, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Attorney General - San Francisco Office Seth K. Schalit, Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 3 | Aclu Foundation Of Northern California, Inc. (Amicus curiae) Represented by Alan L. Schlosser American Civil Liberties Union/Northern California 1663 Mission St., 4th floor San Francisco, CA |
| 4 | State Public Defender (Amicus curiae) Represented by Lynne S. Coffin 221 Main St., 10th fl 221 Main St., 10th fl San Francisco, CA |
| 5 | California Public Defendes Association (Amicus curiae) Represented by Bradley A. Bristow Attorney at Law 33272 Ramos Circle Sacramento, CA |
| Disposition | |
| Jun 30 2003 | Opinion: Reversed |
| Dockets | |
| May 14 2001 | Petition for review filed by respondent(People) |
| May 17 2001 | Record requested by email from james |
| May 17 2001 | Received Court of Appeal record file jacket/loose briefs/one confidential envelope/two accordian files |
| May 23 2001 | Answer to petition for review filed By Appellant |
| Jul 9 2001 | Time Extended to grant or deny Petition for Review to and including 8/10/2001 |
| Jul 18 2001 | MPetition for Review Granted (criminal case) |
| Jul 26 2001 | Application for Extension of Time filed Respondent requesting to Sept. 17, 2001 to file its opening brief on the merits. *** Grant - Order in Prep *** |
| Jul 30 2001 | Received document entitled: Amended Declaration of Service by Respondent |
| Jul 31 2001 | Telephone conversation with: Stephen Bedrick re briefing schedule. Appellants time to file answer brief doesn't start running till appointment of counsel order has been filed. |
| Aug 2 2001 | Extension of Time application Granted to September 17, 2001 to file respondent's opening brief on the merits |
| Aug 9 2001 | Counsel appointment order filed Stephen Bedrick hereby appointed to represent appellant. Appellant's brief on merits shall be filed 30 days from the date of respondent's opening brief. |
| Sep 10 2001 | Application for Extension of Time filed by Atty Gen. requesting 30-day extension of time to file Respondent's brief on merits. ****Extension granted order being prepared***** |
| Sep 14 2001 | Extension of Time application Granted to Respondent to file brief of merits is extended to and including October 17, 2001. |
| Oct 2 2001 | Opening brief on the merits filed by Respondent (AG). |
| Oct 25 2001 | Application for Extension of Time filed counsel for appellant requesting extension of time to November 30, 2001 to file answer brief |
| Oct 29 2001 | Extension of Time application Granted Appellant's time to file Answer brief is extended to November 30, 2001. |
| Nov 27 2001 | Request for extension of time filed counsel for appellant requests 30-day extension to December 31, 2001 to file respondent's brief. |
| Nov 28 2001 | Extension of time granted Appellant's time to to serve and file the appellant's brief is extended to and including December 31, 2001. |
| Dec 28 2001 | Received: Appellant's brief on the merits |
| Dec 28 2001 | Application to file over-length brief filed by counsel for appellant (J. Johnson) |
| Jan 2 2002 | Answer brief on the merits filed with permission by counsel for appellant (Jay Shawn Johnson) |
| Jan 17 2002 | Reply brief filed (case fully briefed) by Respondent (AG) |
| Feb 19 2002 | Received application to file Amicus Curiae Brief from American Civil Liberties Union of Northern California and Office of the State Public Defender. (brief under same cover) |
| Feb 19 2002 | Received application to file amicus curiae brief; with brief California Public Defenders Assoc. (non-party) |
| Feb 22 2002 | Permission to file amicus curiae brief granted California Public Defenders Assoc. |
| Feb 22 2002 | Amicus Curiae Brief filed by: California Public Defenders Association (non-party) |
| Feb 22 2002 | Permission to file amicus curiae brief granted American Civil Liberties Union of Northern California and the Office of the State Public Defender. (non-party) |
| Feb 22 2002 | Amicus Curiae Brief filed by: Ameri. Civil Liberties Union of Northern Calif. and Office of the State Public Defender. (non-party) |
| Feb 28 2002 | Compensation awarded counsel Atty Bedrick |
| Mar 12 2002 | Response to amicus curiae brief filed by respondent (Atty Gen.) to Civil Liberties Union of Northern Calif. and Office of the State Public Defender |
| Mar 12 2002 | Response to amicus curiae brief filed by counsel (AG) for respondent People to Calif. Public Defenders Assoc. |
| Mar 6 2003 | Case ordered on calendar 4-1-03, 9am, L.A. |
| Mar 10 2003 | Filed: Request for Leave to file supplemental brief and declaration of Stephen B. Bedrick in support - by counsel for appellant. . |
| Mar 10 2003 | Supplemental brief filed by counsel for appellant (Jay Shawn Johnson) regarding the U.S. Supreme Court's decision in Miller-El v. Cockrell. |
| Mar 12 2003 | Filed: by (AG) counsel for (Respondent) Motion to File Supplemental Brief. |
| Mar 17 2003 | Supplemental brief filed by counsel (AG) for respondent (The People). |
| Mar 20 2003 | Supplemental brief filed by counsel for appellant (Johnson). (letter brief) |
| Mar 24 2003 | Supplemental reply brief filed by counsel for appellant (J. Johnson) |
| Apr 1 2003 | Cause argued and submitted |
| Jun 30 2003 | Opinion filed: Judgment reversed and remanded. OPINION BY: Chin, J. --- joined by George, C.J., Baxter, Brown, Moreno, JJ. CONCURRING AND DISSENTING OPINION BY: Werdegar, J DISSENTING OPINION BY: Kennard, J |
| Jul 31 2003 | Remittitur issued (criminal case) |
| Aug 7 2003 | Received: receipt for remittitur CA 1/2 |
| Nov 19 2003 | Compensation awarded counsel Atty Bedrick |
| Dec 10 2003 | Note: |
| May 11 2004 | Received: complete record from U.S. Supreme Court |
| Sep 22 2004 | Compensation awarded counsel Atty Bedrick |
| Briefs | |
| Oct 2 2001 | Opening brief on the merits filed |
| Jan 2 2002 | Answer brief on the merits filed |
| Jan 17 2002 | Reply brief filed (case fully briefed) |
| Feb 22 2002 | Amicus Curiae Brief filed by: |
| Feb 22 2002 | Amicus Curiae Brief filed by: |
| Mar 12 2002 | Response to amicus curiae brief filed |
| Mar 12 2002 | Response to amicus curiae brief filed |
