Stanford Law School - Robert Crown Law Library

Filed 7/24/08 (this opn. should precede S042224, also filed 7/24/08)



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S148029

v.

) Ct.App.

5

F048115

ARTHUR LOURDES LENIX,

Kern

County

Defendant and Appellant.

Super. Ct. No. BF100124B






Here we determine whether an appellate court must perform a comparative

juror analysis for the first time on appeal to evaluate whether the advocate’s stated

reasons for peremptorily challenging prospective jurors are truthful or pretextual.

(See People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky

(1986) 476 U.S. 79 (Batson.) The United States Supreme Court conducted such a

comparative analysis for the first time on appeal in Miller-El v. Dretke (2005) 545

U.S. 231 (Miller-El II)1 and again recently in Snyder v. Louisiana (2008) __ U.S.

__, 128 S.Ct. 1203 (Snyder). When read in their entirety, those cases stand for the

unremarkable principle that reviewing courts must consider all evidence bearing

on the trial court’s factual finding regarding discriminatory intent. Comparative

juror analysis is evidence that, while subject to inherent limitations, must be

considered when reviewing claims of error at Wheeler/Batson’s third stage when

the defendant relies on such evidence and the record is adequate to permit the


1

As we shall explain, Miller-El’s matter first reached the United States

Supreme Court in Miller-El v. Cockrell (2003) 537 U.S. 322. To avoid confusion,
we shall refer to this earlier case as Miller-El I.

1

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comparisons. In those circumstances, comparative juror analysis must be

performed on appeal even when such an analysis was not conducted below.

Here,

defendant’s

Wheeler/Batson motion was properly denied.

Accordingly we affirm the judgment of the Court of Appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

After two mistrials, defendant was convicted of crimes arising from a fatal

shooting in Bakersfield.2 Defendant shot and killed Lamar Rufus. He also shot at

and missed Lamar’s cousin, Curtis Rufus. The jury convicted him of numerous

crimes and enhancements, including first degree murder and attempted murder.

(Pen. Code §§ 187; 664/187.)3 Defendant was sentenced to a total indeterminate

term of 50 years to life in prison, and consecutive determinate terms totaling 21

years.

Because the sole issue presented in this appeal concerns jury selection, we

focus on that process. California trial judges have broad discretion over the

specific manner in which voir dire is conducted (see Code Civ. Proc., § 223), and

practices vary widely. In some courts 12 panelists are selected and questioned. If

a panelist is excused for cause or by peremptory challenge, a new panelist is

called. Other courts screen larger groups of prospective jurors. Some trial judges

do a great deal of questioning, others very little. Some courts place time limits on

counsel’s questioning and either require or permit counsel to ask group questions.

Practices vary in terms of which counsel questions panelists first and who


2

The trial court first declared a mistrial based on defense counsel’s

representation of an irreconcilable conflict of interest. The second trial ended in
mistrial after defense counsel became ill.

3

All further undesignated statutory references are to the Penal Code.

Defendant was also convicted of conspiracy to commit murder (§§ 182, 187);
possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)); and carrying a
loaded firearm in public while an active member of a criminal street gang
(§ 12031, subd. (a)(2)(C).) Sentencing enhancements and a prior conviction
allegation were found true.

2

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exercises the first peremptory challenge. Advocates who pass an opportunity to

challenge retain the option to challenge a seated panelist after an opponent

exercises a challenge. The jury is not considered mutually accepted until both

sides pass in succession or exhaust their challenges.

In this case, the court announced that it would select 13 jurors. At the end

of the trial, one of the 13 would be selected by lot and designated as the alternate.

The court conducted jury selection in the following manner. From the entire

venire panel, a group of 21 panelists was called and questioned by the court and

counsel.4 After panelists were excused for cause, the court designated 13 of the

remaining panelists as the group subject to peremptory challenges. As a member

of this group was challenged, his or her seat was filled by the panelist seated next

in order until all members of the original group of 21 panelists were seated or

excused. The court then called 21 new panelists and the process began again until

both counsel accepted the panel by “passing,” or exercising no more peremptory

challenges.

After the first group of 21 panelists had been questioned, one juror was

excused by the court and the prosecutor then passed for cause. The defense

requested that five panelists be excused for cause; the court excused two. The

prosecutor then used peremptory challenges against one White and two Hispanic

panelists. Alternating with the prosecutor, defense counsel also exercised three

peremptory challenges. At this point 12 panelists were seated in the jury box,

including L.F., a Black man.

The clerk then called another 21 panelists whom the court and counsel

questioned. Among this group was C.A., a Black woman. Defense counsel

questioned C.A. first. In response to his questions, C.A. stated she did not know


4

Technically, members of the venire panel do not become jurors until they

have been accepted by the court and counsel and sworn as jurors. We will refer to
prospective jurors as panelists or panel members.

3

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any of the names on the witnesses list. When asked whether anything about the

nature of the case concerned her, C.A. stated “the murder aspect.” Defense

counsel then asked her if she understood that charges do not equate with guilt and

that a determination of guilt must be based on evidence, to which C.A. replied yes.

C.A. also stated that she could evaluate the credibility of witnesses and treat all

witnesses the same.

The

prosecutor

subsequently asked C.A., “[Y]ou had indicated to [defense

counsel] that you were particularly troubled by some of the charges, especially the

murder charges; is that correct?” C.A. answered yes. The prosecutor then

inquired, “I know anybody, of course, would be troubled by charges like that, but

is there something—if I can ask—is there something beyond that.” C.A. replied,

“The fact that someone lost a life.” The prosecutor then asked, “Have you

yourself had anyone close to you involved in something like that?” C.A. answered

that her sister’s husband, to whom she was close, had been murdered 10 or 11

years ago. When asked if the murder was gang related, C.A. answered yes. The

prosecutor asked which gang committed the offense. C.A. said the murder had

occurred in Los Angeles County and no one had ever been arrested. Asked if she

had “any trouble” with law enforcement for failing to make an arrest, C.A. said no.

The prosecutor asked, “Was it one of those situations where basically nobody had

an idea who did it?” C.A. said yes, and that she would not hold the experience

against defendant. Asked whether there was anything else the parties needed to

know about her brother-in-law’s murder or any “similar situations,” C.A. said no.

Later, the prosecutor asked the entire venire: “Has anybody here had any

contacts with law enforcement that were hostile, confrontational, adverse, however

you want to describe it, that might carry over into what we’re going to do here in

this courtroom? Anybody at all? Traffic ticket you didn’t feel you deserved?”

C.A. was the sole juror to reply and stated that she had gotten a traffic ticket.

When asked whether the officer was impolite “or anything like that,” C.A.

answered, “No. Well, no one ever feels they deserve a ticket. That was all.” The

4

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prosecutor asked, “You feel that maybe he was a little shading the truth a little bit

in it?” C.A. answered, “Yeah.” The prosecutor then asked, “Did you feel you

deserved it?” C.A. replied, “I didn’t know if I deserved it or not, so I just went

along with it.”

The court on its own motion excused two panelists in the second group of

21. The prosecutor passed for cause and the court sustained one of defense

counsel’s two challenges for cause. A member of the second group was added to

the 12 panelists remaining from the first group. The next peremptory challenge

was with the prosecutor, who accepted the panel. Defense counsel exercised his

fourth peremptory challenge against L.F., the Black panelist, and the prosecutor

again accepted the panel. Defense counsel exercised his fifth peremptory

challenge, and the prosecutor used his fourth peremptory challenge against a

Hispanic panelist. Defense counsel then made a Wheeler motion,5 which the court

reserved until the completion of voir dire.

C.A. was then one of the designated 13 panelists subject to peremptory

challenge. After defense counsel exercised his sixth peremptory challenge, the

prosecutor struck C.A. Defense counsel exercised a seventh peremptory

challenge, and both sides accepted the panel. Both sides left unused a substantial

number of their allotted peremptory challenges.

The jury was composed of six Caucasians, four Hispanics, and two

Filipinos. No Blacks served as jurors or alternates. The record contains no


5

Nearly a decade before Batson, California took affirmative steps to ensure

that race played no part in jury selection. Thus, the Wheeler, holding has long
been a part of California practice, and a motion of this kind is often referred to as a
Wheeler motion. Although defendant cited only Wheeler on appeal he also asserts
error under the federal Batson standard. An objection under Wheeler suffices to
preserve a Batson claim on appeal. (People v. Lancaster (2007) 41 Cal.4th 50, 73;
People v. Gray (2005) 37 Cal.4th 168, 184, fn. 2.)

5

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information on whether any Blacks other than C.A. and L.F. participated in the

venire.6

At

the

Wheeler/Batson hearing, defense counsel pointed out that the

prosecutor had excluded three Hispanics and one Black, and claimed the

prosecutor “was excluding minorities from the jury, particularly Hispanics.” As to

the three Hispanic panelists, the prosecutor provided reasons which are not in

dispute here.

Regarding C.A., the prosecutor stated that his memory was clearer as to

later prospective jurors, but stated, “I was particularly concerned about her

statement about the traffic ticket. When I was asking about uncomfortable run-ins

with the police, she was actually the only juror who raised her hand. She indicated

it was a traffic ticket, but then seemed to indicate that it wasn’t adversarial and

said that she didn’t know the officer was lying, and just kind of didn’t fight it

because she wanted to take his word for it. Quite honestly, your Honor, I thought

there was probably a lot more to it than that, and I felt uncomfortable with her

because of that. [¶] I was also somewhat concerned with the fact that her brother

[sic] was involved in a gang-related homicide, because it’s been my experience

more often than not that people who are themselves victims of gangs, not always

by any means, but quite often are themselves gang members, and I was concerned

with any kind of negative repercussions my case might have in that regard, as

well.”

Defense counsel did not respond. Addressing all four peremptory

challenges, the court stated: “Based on the representations that I have from [the

prosecutor] . . . I do not find those challenges to be motivated because of the fact

that any of the jurors excused were members of a minority group but rather for


6

When a Wheeler/Batson motion has been made, it is helpful for the record

to reflect the ultimate composition of the jury.

6

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other reasons not motivated by any kind of ethnicity or membership in any

particular minority group, so I’m going to deny the Wheeler motion.”

On appeal, defendant limited his Wheeler/Batson claim to the challenge of

C.A., the Black panelist, arguing the prosecutor’s stated reasons were pretextual.

The Court of Appeal rejected his argument, observing that the prosecutor’s

reasons for his challenge were “comprehensible, neither discriminatory nor

implausible, and at variance with nothing in the record.”

In an “ancillary argument,” defendant asserted that the Miller-El cases

impose a duty on reviewing courts to conduct comparative juror analysis to

evaluate the credibility of the prosecutor’s reasons for excusing minority

prospective jurors. Defendant claimed this duty applies even when a comparative

juror analysis was neither requested by defense trial counsel nor otherwise

performed by the trial court. The Court of Appeal rejected defendant’s argument.

Relying on People v. Johnson (2003) 30 Cal.4th 1302, overruled on other grounds

in Johnson v. California (2005) 545 U.S. 162, the Court of Appeal concluded that

comparative juror analysis for the first time on appeal is not constitutionally

compelled.

II. DISCUSSION

At the time of the Supreme Court’s opinion in Miller-El II, supra, 545 U.S.

231, our practice with regard to conducting comparative juror analysis for the first

time on appeal was described in People v. Johnson, supra, 30 Cal.4th 1302:

“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 . . . .” (Id. at pp. 1324-

1325.) This practice derived from our view that engaging in comparative juror

analysis for the first time on appeal is unreliable and inconsistent with the

deference that must be given trial courts. (Id. at pp. 1318, 1324.) We stated: “A

7

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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.” (Id. at p. 1320.)



Following the Miller-El II decision, we have assumed without deciding that

a comparative juror analysis should be conducted for the first time on appeal with

regard to Wheeler/Batson’s third stage. (See People v. Lewis (2008) 43 Cal.4th

415, 472; People v. Zambrano (2007) 41 Cal.4th 1082, 1109; People v. Stevens

(2007) 41 Cal.4th 182, 196; People v. Lewis and Oliver (2006) 39 Cal.4th 970,

1017; People v. Ledesma (2006) 39 Cal.4th 641, 679; People v. Avila (2006) 38

Cal.4th 491, 546; People v. Huggins (2006) 38 Cal.4th 175, 232; People v. Jurado

(2006) 38 Cal.4th 72, 105; People v. Guerra (2006) 37 Cal.4th 1067, 1106; People

v. Schmeck (2005) 37 Cal.4th 240, 270.) We now decide the issue.

A. The Wheeler/Batson Inquiry

Both the federal and state Constitutions prohibit any advocate’s use of

peremptory challenges to exclude prospective jurors based on race. (Batson,

supra, 476 U.S. at p. 97; Georgia v. McCollum (1992) 505 U.S. 42, 59; Wheeler,

supra, 22 Cal.3d at pp. 276-277.) Doing so violates both the equal protection

clause of the United States Constitution and the right to trial by a jury drawn from

a representative cross-section of the community under article I, section 16 of the

California Constitution. (People v. Bonilla (2007) 41 Cal.4th 313, 341; People v.

Avila, supra, 38 Cal.4th at p. 541.) Here we couch our discussion, both general

and particular, in terms of a challenge to the prosecutor’s conduct. The principles,

procedures and obligations, however, apply equally to all advocates.7

The

Batson three-step inquiry is well established. First, the trial court must

determine whether the defendant has made a prima facie showing that the


7

Therefore, for ease of discussion, we will refer to the challenged party as

the prosecution and the challenger as the defense.

8

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prosecutor exercised a peremptory challenge based on race. Second, if the

showing is made, the burden shifts to the prosecutor to demonstrate that the

challenges were exercised for a race-neutral reason. Third, the court determines

whether the defendant has proven purposeful discrimination. The ultimate burden

of persuasion regarding racial motivation rests with, and never shifts from, the

opponent of the strike. (Rice v. Collins (2006) 546 U.S. 333, 338.) The three-step

procedure also applies to state constitutional claims. (People v. Bonilla, supra, 41

Cal.4th at p. 341; People v. Bell (2007) 40 Cal.4th 582, 596.)

A prosecutor asked to explain his conduct must provide a “ ‘clear and

reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the

challenges.” (Batson, supra, 476 U.S. at p. 98, fn. 20.) “The justification need not

support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral,

will suffice.” (People v. Arias (1996) 13 Cal.4th 92, 136, italics added.) A

prospective juror may be excused based upon facial expressions, gestures,

hunches, and even for arbitrary or idiosyncratic reasons. (See People v. Turner

(1994) 8 Cal.4th 137, 165; Wheeler, supra, 22 Cal.3d at p. 275.) Nevertheless,

although a prosecutor may rely on any number of bases to select jurors, a

legitimate reason is one that does not deny equal protection. (Purkett v. Elem

(1995) 514 U.S. 765, 769) Certainly a challenge based on racial prejudice would

not be supported by a legitimate reason.



At the third stage of the Wheeler/Batson inquiry, “the issue comes down to

whether the trial court finds the prosecutor’s race-neutral explanations to be

credible. Credibility can be measured by, among other factors, the prosecutor’s

demeanor; by how reasonable, or how improbable, the explanations are; and by

whether the proffered rationale has some basis in accepted trial strategy.” (Miller-

Ell I, supra, 537 U.S. at p. 339.)8 In assessing credibility, the court draws upon its


8

Here, the trial court requested the prosecutor’s reasons for the peremptory

challenges and ruled on the ultimate question of intentional discrimination. Thus,
















Footnote Contd. on Next Page

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contemporaneous observations of the voir dire. It may also rely on the court’s

own experiences as a lawyer and bench officer in the community, and even the

common practices of the advocate and the office who employs him or her. (See

Wheeler, supra, 22 Cal.3d at p. 281.)

Review of a trial court’s denial of a Wheeler/Batson motion is deferential,

examining only whether substantial evidence supports its conclusions. (People v.

Bonilla, supra, 41 Cal.4th at pp. 341-342.) “We review a trial court's

determination regarding the sufficiency of a prosecutor’s justifications for

exercising peremptory challenges ‘ “with great restraint.” ’ [Citation.] We

presume that a prosecutor uses peremptory challenges in a constitutional manner

and give great deference to the trial court's ability to distinguish bona fide reasons

from sham excuses. [Citation.] So long as the trial court makes a sincere and

reasoned effort to evaluate the nondiscriminatory justifications offered, its

conclusions are entitled to deference on appeal. [Citation.]” (People v. Burgener

(2003) 29 Cal.4th 833, 864.)9

The United States Supreme Court has also emphasized that a state trial

court’s finding of no discriminatory intent is a factual determination accorded

great deference. (Hernandez v. New York, supra, 500 U.S. at pp. 364-365.) “Step

three of the Batson inquiry involves an evaluation of the prosecutor’s credibility,

[citation], and ‘the best evidence [of discriminatory intent] often will be the


Footnote Contd. From Previous Page
the question of whether defendant established a prima facie case is moot.
(Hernandez v. New York (1991) 500 U.S. 352, 359; People v. Shmeck, supra, 37
Cal.4th at p. 267; People v. Welch (1999) 20 Cal.4th 701, 745-746.) Defendant
challenges only the trial court’s performance at Wheeler/Batson’s third stage.


9

Defendant contends the deferential standard of review is inapplicable here

because the trial court made no specific factual findings. On the contrary, the trial
court credited the prosecutor’s reasons for excluding C.A. and the three Hispanic
panelists, finding those explanations, rather than race, were the motivation for the
prosecutor’s peremptory challenges.

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demeanor of the attorney who exercises the challenge.’ [Citation.] In addition,

race-neutral reasons for peremptory challenges often invoke a juror’s demeanor

(e.g., nervousness, inattention), making the trial court’s first-hand observations of

even greater importance. In this situation, the trial court must evaluate not only

whether the prosecutor’s demeanor belies a discriminatory intent, but also whether

the juror’s demeanor can credibly be said to have exhibited the basis for the strike

attributed to the juror by the prosecutor. We have recognized that these

determinations of credibility and demeanor lie ‘ “peculiarly within a trial judge's

province,” ’ [citations], and we have stated that ‘in the absence of exceptional

circumstances, we would defer to [the trial court].’ [Citation.]” (Snyder, supra,

128 S.Ct. at p. 1208.)

B. The Miller-El II Decision

When Miller-El was tried for capital murder in a Texas state court, the

United States Supreme Court had not yet decided Batson. Miller-El moved to

strike the jury on the grounds that the prosecution’s peremptory challenges to 10

of 11 Black members of the venire violated the equal protection clause. (Miller-El

I, supra, 537 U.S. at p. 326.)10 To meet the existing standard of Swain v. Alabama

(1965) 380 U.S. 202, Miller-El sought to show the prosecution’s conduct was part

of a larger pattern of discrimination aimed at excluding Blacks from jury service.

The trial court denied the motion. (Miller-El II, supra, 545 U.S. at p. 236.)

Miller-El was subsequently found guilty and sentenced to death. (Ibid.)

The Texas Court of Criminal Appeals, the state’s criminal court of last

resort, remanded the case to the trial court to apply the newly articulated Batson

standard. Upon remand, the original trial court conducted a Batson hearing more

than two years after the jury had been empanelled. (Miller-El I, supra, 537 U.S. at


10

There were originally 20 Black members of the 108 member venire panel.

Nine panelists were excused for cause or by agreement. (Miller-El II, supra, 545
U.S. at pp. 240-241.)

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p. 329.) The court reviewed the voir dire record and permitted one of the

prosecutors to provide reasons for previously unexplained peremptory challenges.

The trial court accepted the prosecution’s proffered reasons, “which the judge

called ‘completely credible [and] sufficient’ as the grounds for a finding of ‘no

purposeful discrimination.’ ” (Miller-El II, supra, 545 U.S. at pp. 236-237.) The

Texas Court of Criminal Appeals affirmed, finding “ ‘ample support’ ” in the voir

dire record for the prosecutors’ explanations. (Id. at p. 237.)

Miller-El’s case shifted to the federal courts, without initial success. The

federal district court denied habeas relief and the Fifth Circuit Court of Appeal

blocked the appeal by denying a certificate of appealability. In Miller-El I, supra,
537 U.S. 322, the Supreme Court reversed, concluding the certificate of

appealability should have issued. (Id. at p. 327.) Ultimately, the Fifth Circuit

rejected Miller-El’s claim on its merits. The Supreme Court again granted

certiorari and again reversed. (Miller-El II, supra, 545 U.S. at p. 237.)

The Miller-El II opinion reveals the case to be a troubling and blatant

example of the way in which racism can infect the justice system. It also reflects

the high court’s commitment to eradicate this pernicious influence. Although

noting that “ ‘[f]or more than a century, this Court consistently and repeatedly has

reaffirmed that racial discrimination by the State in jury selection offends the

Equal Protection Clause’ ” (Miller-El II, supra, 545 U.S. at p. 238), the court

nevertheless confronted a case in which it concluded that undeniably the state’s

lawyers had selected and rejected jury panelists because of race. (Id. at p. 266.)

Miller-El II was even more distressing because state and federal courts had

repeatedly affirmed the defendant’s death sentence in the face of a “powerful”

record of racism. (See Miller-El II, supra, 545 U.S. at p. 265.) The Supreme

Court was clearly skeptical of the conclusions of these courts and legitimately so.

After reviewing the entire record, the Supreme Court determined that the repeated

findings by both the trial and appellate courts were utterly unsupported. The

court’s skepticism was reflected in its language. It noted, for example, that the

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record revealed “incredible explanations” by the prosecutors in a voir dire process

“replete with evidence” of reliance on race (id. at p. 265); that “[i]t blinks reality

to deny that the State” struck two Black panelists because of their race (id. at p.

266); and that the prosecutor’s belated explanation of one those challenges “reeks

of afterthought.” (Id. at p. 246.) In a vigorous rebuke, the Supreme Court

characterized the Fifth Circuit’s conclusion “as unsupportable as the ‘dismissive

and strained interpretation’ of [Miller-El’s] evidence that we disapproved when we

decided Miller-El was entitled to a certificate of appealability.” (Id. at p. 265.)

The Supreme Court’s review was conducted under the Antiterrorism and

Effective Death Penalty Act of 1996. Thus, relief was available only if the trial

court’s acceptance of the prosecutors’ explanations was “an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” (28 U.S.C. § 2254(d)(2); Miller-El II, at supra, 545 U.S. at p. 240.)

On review, the high court presumed the trial court’s factual findings were correct

and placed the burden on the defense to establish otherwise by clear and

convincing evidence. (28 U.S.C § 2254(e)(1); Miller-El II, at p. 240.) The court

stated: “The standard is demanding but not insatiable; as we said the last time this

case was here, ‘[d]eference does not by definition preclude relief.’ ” (Miller-El II,

at p. 240, quoting Miller-El I, supra, 537 U.S. at p. 340.)

The Supreme Court undertook a review of the entire record consistent with

Batson’s teaching that “ ‘all relevant circumstances’ ” may be relied upon in

determining whether there had been purposeful discrimination. (Miller-El II,

supra, 545 U.S. at p. 240.) It noted the “bare statistics,” in which the prosecutors

used peremptory challenges to excuse nine of the 10 Blacks found qualified to

serve. (Id. at pp. 240-241.) The court also took into account a remarkable Texas

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procedure known as the “jury shuffle.”11 “[E]ither side may literally reshuffle the

cards bearing panel members’ names thus rearranging the order in which members

of a venire panel are seated and thus reached for questioning.” (Id. at p. 253.)

Those panelists not examined before the end of the week are dismissed. (Ibid.)

On two occasions when a number of Black panelists were seated at the front of the

panel, the prosecutor “reshuffled.” (Id. at p. 254.) According to testimony, the

district attorney’s office admitted it had relied on the shuffling procedure “ ‘in the

past’ ” to manipulate the racial composition of juries. (Ibid.)

The record revealed that for decades before Miller-El’s trial, Dallas County

prosecutors had “a specific policy of systematically excluding blacks from juries.”

(Miller-El II, supra, 545 U.S. at p. 263.) Although testimony on this point was

conflicting, one county judge testified that his former supervisor in the district

attorney’s office told him that he would be fired if he allowed Blacks to serve as

jurors. Defendant presented evidence that the district attorney’s office gave its

prosecutors a manual, known as the “Sparling Manual,” written in 1968 by a

prosecutor who also became a judge. The manual outlined reasons for excluding

minority panelists from jury service. The manual remained in circulation until

1976 or later and was available to at least one of Miller-El’s prosecutors. (Id. at p.

264.) The court concluded that prosecutors “took their cues” from this manual, as

shown by their notes recording the race of each prospective juror. (Id. at p. 266.)

At oral argument the state claimed these notations could have been made to avoid

a Batson violation. But the court pointedly observed: “Batson, of course, was


11

At the time of the Supreme Court’s opinion in Miller-El II, the “jury

shuffle” practice was authorized under Texas Code of Criminal Procedure
Annotated, article 35.11. (Miller-El II, supra, 545 U.S. at p. 253, fn. 12.)

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decided the month after Miller-El was tried.” (Id. at p. 264, fn. 38, italics

added.)12

The state offered a variety of reasons for excusing the Black panelists. The

prosecution’s credibility in asserting those reasons was the key question. The

record of voir dire obliterated any semblance of truthfulness. In addition to the

factors discussed above, the Supreme Court pointed out that prosecutors used a

line of questioning admittedly designed to create cause to strike. (Miller-El II,

supra, 545 U.S. at p. 261.) Prosecutors asked panelists to state the minimum

sentence they would impose for murder. Before answering, 94 percent of White

panelists were told that the statutory minimum was five years. Just over 10

percent of Black panelists were given this same information. If a Black panelist

responded with a term that was above the five-year minimum, the prosecutor,

while normally preferring tough jurors, would rely on this answer to justify a

strike. (Ibid.)

The Supreme Court characterized the questioning as “trickery” and

“manipulative.” (Miller-El II, supra, 545 U.S. at p. 261.) Prosecutors sought to

explain their disproportionate use of this “punishment ruse” on Black panelists.

(Id. at p. 262, fn. 34.) They claimed that use of the manipulative script was not

based on a panelist’s race but on opposition or ambivalence to the death penalty

reflected in questionnaire or voir dire responses. (Id. at pp. 261-262 & fns. 34-35.)

The court tested that explanation against the record, and found that it “flatly

fail[ed] to explain” why most White panelists who expressed opposition or

ambivalence were never subjected to the “trick question.” (Id. at p. 262.)


12 In

Miller-El II, this conduct by the prosecution was an example of how the

state’s explanation could not be reconciled with objective facts. We emphasize,
however, that post-Batson, recording the race of each juror is an important tool to
be used by the court and counsel in mounting, refuting or analyzing a Batson
challenge.

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Other evidence considered by the court, and at issue in this appeal, was a

comparative juror analysis in which the responses of two excused Black panelists

were compared to the responses of non-Black panelists who were allowed to

serve. (Miller-El II, supra, 545 U.S. at pp. 241-252.) Specifically, as to panelist

Billy Jean Fields, the prosecutor claimed he used his peremptory challenge

because Fields “ ‘said that he could only give death if he thought a person could

not be rehabilitated.’ ” (Id. at p. 243.) In fact, the record showed that the

prosecutor “mischaracterized Fields’s testimony” and that “Fields unequivocally

stated that he could impose the death penalty regardless of the possibility of

rehabilitation.” (Id. at p. 244.) Thus, the prosecutor’s purported “reason” was

starkly contradicted by the record. The court pointed out that other White

panelists were accepted by the prosecution “with no evident reservations,” even

though these panelists expressed concerns about imposing death when

rehabilitation might be possible. (Ibid.) Further, contrary to the prosecutor’s

claimed concern on this topic, he asked no followup or clarifying questions when

nonminority panelists gave answers that raised the topic. (Id. at pp. 244-245.)

A second Black panelist, Joe Warren, was asked what he thought the death

penalty accomplished. Warren replied, in essence, that he had mixed feelings

because while the death penalty might deter crime, it might also relieve a murderer

of the suffering he would endure by serving a lengthy prison term. (Miller-El II,

supra, 545 U.S. at pp. 247-248.) At trial, the prosecution did not mention these

remarks when it excused Warren, but at the Batson hearing two years later the

prosecution identified these “ ‘inconsistent responses’ ” as the reason for the

challenge. (Id. at p. 248.) The Supreme Court observed that, while on its face, the

prosecutor’s explanation seemed reasonable, “its plausibility is severely undercut”

by the prosecutor’s failure to object to at least four non-Black jurors who also

stated that life in prison was a harsher punishment. (Ibid.) As to Warren, the

court stated: “The whole of the voir dire testimony subject to consideration casts

the prosecution’s reasons for striking Warren in an implausible light. Comparing

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his strike with the treatment of panel members who expressed similar views

supports a conclusion that race was significant in determining who was challenged

and who was not.” (Id. at p. 252.)13

The Supreme Court emphasized that the case for discrimination went

beyond the comparative juror analysis to include a broader pattern of practice

during the jury selection: “The prosecution’s shuffling of the venire panel, its

enquiry into views on the death penalty, its questioning about minimum acceptable

sentences: all indicate decisions probably based on race. Finally, the appearance

of discrimination is confirmed by widely known evidence of the general policy of

the Dallas County District Attorney’s Office to exclude black venire members

from juries at the time Miller-El’s jury was selected.” (Miller-El II, supra, 545

U.S. at p. 253.) The court acknowledged that at some points the significance of

the evidence was open to judgment calls, “but when this evidence on the issues

raised is viewed cumulatively its direction is too powerful to conclude anything

but discrimination.” (Id. at p. 265.)

C. The Snyder Decision



Almost three years after its decision in Miller-El II, the United States

Supreme Court in Snyder once again performed a comparative juror analysis not

previously conducted in the trial court. In Snyder, the prosecutor exercised

peremptory challenges against all five Black panelists. (Snyder, supra, 128 S.Ct.

at p. 1207.) The Supreme Court considered the prosecutor’s reasons for

challenging one of those panelists, Jeffrey Brooks. In the first phase of jury

selection, the court inquired of panelists whether jury service would result in

13

The Supreme Court employed a time-honored approach to conclude the

prosecutors’ explanations were repeatedly repudiated by the record. It is common,
when considering credibility, to compare a witness’s statement against other
things the witness has said or not said. Statements are also legitimately compared
to other objectively demonstrable facts. Explanations not given at the outset but
proffered only after the witness learns additional information may reasonably be
viewed with suspicion.

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extreme hardship. Brooks explained that he was a college senior who needed to

complete his student-teaching requirement to graduate and expressed concern that

jury service would cause him to miss classes. The court contacted the university

dean, who gave assurances that he would work with Brooks to make up classes.

After receiving this information, Brooks expressed no further concern and the

prosecutor did not question him further on the issue. (Id. at pp. 1209-1210.)

In explaining his peremptory challenge against Brooks, the prosecutor

offered two race-neutral reasons. First, he stated that Brooks appeared nervous

throughout the voir dire questioning. (Snyder, supra, 128 S.Ct. at p. 1208.)

Second, “the prosecutor claimed to be apprehensive that Mr. Brooks, in order to

minimize the student-teaching hours missed during jury service, might have been

motivated to find petitioner guilty, not of first-degree murder, but of a lesser

included offense because this would obviate the need for a penalty phase

proceeding.” (Id. at p. 1210.) Defense counsel disputed both explanations and the

trial court ruled: “ ‘All right. I’m going to allow the challenge. I’m going to

allow the challenge.’ ” (Id. at p. 1208.) The trial and penalty phases concluded

two days after Brooks was struck. (Id. at p. 1210.)

As to the prosecutor’s first explanation, the Supreme Court noted that

nervousness cannot be shown from a cold record. Thus, “deference is especially

appropriate where a trial judge has made a finding that an attorney credibly relied

on demeanor in exercising a strike.” (Snyder, supra, 128 S.Ct. at p. 1209.) The

trial court in Snyder however, responded to the prosecutor’s two proffered reasons

by simply allowing the challenge without explanation. Thus the high court would

not presume that the trial judge credited the prosecutor’s explanation of

nervousness. (Id. at p. 1209.)

Regarding the second proffered reason the Supreme Court characterized the

prosecutor’s explanation as “highly speculative.” (Snyder, supra, 128 S.Ct. at p.

1210.) The court also stated, “Perhaps most telling, the brevity of petitioner’s

trial–something that the prosecutor anticipated on the record during voir dire–

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meant that serving on a jury would not have seriously interfered with Mr. Brooks’

ability to complete his required student teaching.” (Ibid., fn omitted.)

The Supreme Court additionally considered evidence of comparative juror

analysis in evaluating the prosecutor’s second reason: “The implausibility of this

explanation is reinforced by the prosecutor’s acceptance of white jurors who

disclosed conflicting obligations that appear to have been at least as serious as Mr.

Brooks’.” (Snyder, supra, 128 S.Ct. at p. 1211.) Before undertaking its analysis

the court cautioned: “We recognize that a retrospective comparison of jurors

based on a cold appellate record may be very misleading when alleged similarities

were not raised at trial. In that situation, an appellate court must be mindful that

an exploration of the alleged similarities at the time of trial might have shown that

the jurors in question were not really comparable. In this case, however, the

shared characteristic, i.e., concern about serving on the jury due to conflicting

obligations, was thoroughly explored by the trial court when the relevant jurors

asked to be excused for cause.” (Ibid.)14

The Supreme Court noted that White juror Roland Laws, a self-employed

general contractor, offered strong work and family reasons as to why jury service

would cause him hardship. (Snyder, supra, 128 S.Ct. at p. 1211.) The Supreme

Court observed that while these obligations “seem[ed] substantially more


14

In a footnote following this paragraph, the Supreme Court stated: “The

Louisiana Supreme Court did not hold that petitioner had procedurally defaulted
reliance on a comparison of the African-American jurors whom the prosecution
struck with white jurors whom the prosecution accepted. On the contrary, the
State Supreme Court itself made such a comparison. See [State v. Snyder (La.
2006)] 942 So.2d 484, 495-496.” (Snyder, supra, 128 S.Ct. at p. 1211, fn. 2.)


The Attorney General interprets the footnote as suggesting the Supreme

Court would honor a state procedural rule requiring that comparative juror
analysis be conducted first in the trial court or be deemed forfeited. Of course, the
court did not actually say that. The intended meaning of footnote remains unclear.
Without further guidance from the Supreme Court, we do not attempt to discern its
meaning.

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pressing” than those of Mr. Brooks, the prosecution declined to use a peremptory

challenge to strike him. (Ibid.) “If the prosecution had been sincerely concerned

that Mr. Brooks would favor a lesser verdict than first-degree murder in order to

shorten the trial, it is hard to see why the prosecution would not have had at least

as much concern regarding Mr. Laws.” (Ibid.)

The court noted the circumstances of another White juror who twice

addressed the court during voir dire about important work commitments. The

juror advised that in order to serve he would have to cancel an urgent appointment

at which his presence was essential. Despite the juror’s concern, the prosecution

did not strike him. (Snyder, supra, 128 S.Ct. at p. 1212.)

D. The Effect of Miller–El II and Snyder on our Comparative Juror Analysis

Practice

Neither Miller-El II nor Snyder changed the Batson standard. An

advocate’s jury selection decisions remain a discretionary prerogative, but race-

based decisions are not constitutionally tolerable. (Miller-El II, supra, 545 U.S. at

pp. 237-240.) Both court and counsel bear responsibility for creating a record that

allows for meaningful review. (See id. at pp. 251-252; Snyder, supra, 128 S.Ct. at

p. 1209.) Review is deferential to the factual findings of the trial court, but that

review remains a meaningful one. As the high court described it, “ ‘[d]eference

does not by definition preclude relief.’ ” (Miller-El II, supra, 545 U.S. at p. 240.)

When reasons are given for the exercise of challenges, an advocate must “stand or

fall on the plausibility of the reasons he gives.” (Id. at p. 252.) The plausibility of

those reasons will be reviewed, but not reweighed, in light of the entire record.

(See id. at pp. 265-266.).

In reviewing the plausibility of the prosecutors’ reasons for their strikes, the

Miller-El II court considered various kinds of evidence, including a comparison of

panelists’ responses. It stated: “If a prosecutor’s proffered reason for striking a

black panelist applies just as well to an otherwise-similar nonblack who is

permitted to serve, that is evidence tending to prove purposeful discrimination to

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be considered at Batson’s third step.” (Miller-El II, supra, 545 U.S. at p. 241,

italics added.) Miller-El II quoted Reeves v. Sanderson Plumbing Products, Inc.

(2000) 530 U.S. 133, an employment case, in which the high court stated that

“[p]roof that the defendant’s explanation is unworthy of credence is simply one

form of circumstantial evidence that is probative of intentional discrimination, and

it may be quite persuasive.” (Id. at p. 147; Miller-El II, at p. 241.) As the Batson

court observed, “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.]” (Batson, supra, 476 U.S. at

p. 93.)

In Snyder, the high court recognized the potentially misleading nature of a

retrospective comparative juror analysis performed on a cold record, but

nevertheless relied on this evidence as bearing on the question of the prosecutor’s

credibility. (Snyder, supra, 128 S.Ct. at p. 1211-1212.)

Miller-El II, supra, 545 U.S.231 and Snyder, supra, 128 S.Ct. 1203

demonstrate that comparative juror analysis is but one form of circumstantial

evidence that is relevant, but not necessarily dispositive, on the issue of intentional

discrimination. These cases stand for the proposition that, as to claims of error at

Wheeler/Batson’s third stage, our former practice of declining to engage in

comparative juror analysis for the first time on appeal unduly restricts review

based on the entire record.15 As the high court noted in Snyder, “In Miller-El v.


15

Our holding today does not implicate claims of error at Wheeler/Batson’s

first stage. As our case law establishes, “[t]he high court [in Miller El II] did not
consider whether appellate comparative juror analysis is required ‘when the
objector has failed to make a prima facie showing of discrimination.’ [Citation.]
A fortiori, Miller-El [II] does not mandate comparative juror analysis in a first-
stage Wheeler-Batson case when neither the trial court nor the reviewing courts
have been presented with the prosecutor’s reasons or have hypothesized any
possible reasons.” (People v. Bell, supra, 40 Cal.4th at p. 601; accord, People v.
















Footnote Contd. on Next Page

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Dretke, the Court made it clear that in considering a Batson objection, or in

reviewing a ruling claimed to be Batson error, all of the circumstances that bear

upon the issue of racial animosity must be consulted.” (Snyder, at p. 1208, italics

added.) Thus, evidence of comparative juror analysis must be considered in the

trial court and even for the first time on appeal if relied upon by defendant and the

record is adequate to permit the urged comparisons.

Nevertheless, like the Snyder court, we are mindful that comparative juror

analysis on a cold appellate record has inherent limitations. (See Snyder, supra,

128 S.Ct. at p. 1211.) Experienced trial lawyers recognize what has been borne

out by common experience over the centuries. There is more to human

communication than mere linguistic content. On appellate review, a voir dire

answer sits on a page of transcript. In the trial court, however, advocates and trial

judges watch and listen as the answer is delivered. Myriad subtle nuances may

shape it, including attitude, attention, interest, body language, facial expression

and eye contact. “Even an inflection in the voice can make a difference in the

meaning. The sentence, ‘She never said she missed him,’ is susceptible of six

different meanings, depending on which word is emphasized.” (Tallman v. ABF

(Arkansas Best Freight) (N.M. Ct. App. 1988) 767 P.2d 363, 366.) “[T]he manner

of the juror while testifying is oftentimes more indicative of the real character of

his opinion than his words. That is seen below, but cannot always be spread upon

the record.” (Reynolds v. United States (1878) 98 U.S. 145, 156-157.)

For example, two panelists may each state he or she was arrested for

driving under the influence of alcohol and pled guilty. In response to questions by

the prosecutor, each may state he or she harbors no ill feeling against the police as

a result of the incident and will not hold that experience against the prosecution.

One panelist may deliver that answer in a way that conveys embarrassment,


Footnote Contd. From Previous Page
Howard (2008) 42 Cal.4th 1000, 1020; People v. Bonilla, supra, 41 Cal.4th at p.
350.)

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remorse and authenticity of response. The other panelist may answer with a tone

of voice, gesture, expression or hesitation that conveys strong negative feelings

about the experience and belies the truthfulness of the answer. A transcript will

show that the panelists gave similar answers; it cannot convey the different ways

in which those answers were given. Yet those differences may legitimately impact

the prosecutor’s decision to strike or retain the prospective juror. When a

comparative juror analysis is undertaken for the first time on appeal, the

prosecutor is never given the opportunity to explain the differences he perceived in

jurors who seemingly gave similar answers.

Moreover, the selection of a jury is a fluid process, with challenges for

cause and peremptory strikes continually changing the composition of the jury

before it is finally empanelled. As we noted in People v. Johnson (1989) 47

Cal.3d 1194: “[T]he 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. It may be acceptable, for example, to have one juror with a particular point

of view but unacceptable to have more than one with that view. If the panel as

seated appears to contain a sufficient number of jurors who appear strong-willed

and favorable to a lawyer’s position, the lawyer might be satisfied with a jury that

includes one or more passive or timid appearing jurors. However, if one or more

of the supposed favorable or strong jurors is excused either for cause or [by]

peremptory challenge and the replacement jurors appear to be passive or timid

types, it would not be unusual or unreasonable for the lawyer to peremptorily

challenge one of these apparently less favorable jurors even though other similar

types remain. These same considerations apply when considering the age,

education, training, employment, prior jury service, and experience of the

prospective jurors.” (Id. at p. 1220.)

Ultimately, an advocate picking a jury is selecting a committee to decide

the case. In addition to each panelist’s individual characteristics, the group must

be able to work together with courtesy and dispassion to reach a complex result

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with substantial consequences. An advocate is entitled to consider a panelist’s

willingness to consider competing views, openness to different opinions and

experiences, and acceptance of responsibility for making weighty decisions. Once

empanelled, the jury wields tremendous power over the outcome of the case.

Even the opportunity to question each panelist individually for the few minutes

allotted provides only a glimpse into the panelist’s thoughts, decisionmaking

ability, experiences, and willingness to discharge the panelist’s important duty.

Each juror becomes, to a certain degree, a risk taken. Voir dire is a process of risk

assessment. As the Supreme Court observed, “potential jurors are not products of

a set of cookie cutters.” (Miller-El II, supra, 545 U.S. at p. 247, fn. 6.) Two

panelists might give a similar answer on a given point. Yet the risk posed by one

panelist might be offset by other answers, behavior, attitudes or experiences that

make one juror, on balance, more or less desirable. These realities, and the

complexity of human nature, make a formulaic comparison of isolated responses

an exceptionally poor medium to overturn a trial court’s factual finding.

For these reasons, comparative juror evidence is most effectively

considered in the trial court where the defendant can make an inclusive record,

where the prosecutor can respond to the alleged similarities, and where the trial

court can evaluate those arguments based on what it has seen and heard. Contrary

to assertions by amici curiae, advocates can object to disparate treatment of

similarly situated jurors at trial without having reviewed voir dire transcripts.

Wheeler/Batson motions are routinely argued based on the voir dire notes and

memory of the prosecution, defense, and trial court. Comparative juror analysis is

no different. Defendants who wait until appeal to argue comparative juror

analysis must be mindful that such evidence will be considered in view of the

deference accorded the trial court’s ultimate finding of no discriminatory intent.

(See Hernandez v. New York, supra, 500 U.S. at p. 365.) Additionally, appellate

review is necessarily circumscribed. The reviewing court need not consider

responses by stricken panelists or seated jurors other than those identified by the

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defendant in the claim of disparate treatment. Further, the trial court’s finding is

reviewed on the record as it stands at the time the Wheeler/Batson ruling is made.

If the defendant believes that subsequent events should be considered by the trial

court, a renewed objection is required to permit appellate consideration of these

subsequent developments.

The inherent limitations of comparative juror analysis can be tempered by

creating an inclusive record. Miller-El II and Snyder demonstrate that an adequate

record is critical for meaningful review. Counsel and the trial court bear

responsibility for creating such a record. Miller-El II admonishes prosecutors

faced with a Wheeler/Batson claim to provide as complete an explanation for their

peremptory challenge as possible. The high court stated: “It is true that

peremptories are often the subjects of instinct, Batson v. Kentucky, supra, at 106,

(Marshall, J., concurring), and it can sometimes be hard to say what the reason is.

But when illegitimate grounds like race are in issue, a prosecutor simply has got to

state his reasons as best he can and stand or fall on the plausibility of the reasons

he gives. A Batson challenge does not call for a mere exercise in thinking up any

rational basis. If the stated reason does not hold up, its pretextual significance

does not fade because a trial judge, or an appeals court, can imagine a reason that

might not have been shown up as false.” (Miller-El II, supra, 545 U.S. at p. 252.)

The high court cautioned that efforts by a trial or reviewing court to “substitute” a

reason will not satisfy the prosecutor’s burden of stating a racially-neutral

explanation. (Ibid.) For this reason, trial courts must give advocates the

opportunity to inquire of panelists and make their record. If the trial court

truncates the time available or otherwise overly limits voir dire, unfair conclusions

might be drawn based on the advocate’s perceived failure to follow up or ask

sufficient questions. Undue limitations on jury selection also can deprive

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advocates of the information they need to make informed decisions rather than

rely on less demonstrable intuition.16

As to trial judges, the court in Miller-El II emphasized that it is the trial

court’s duty to “assess the plausibility” of the prosecutor’s proffered reasons for

striking a potential juror “in light of all evidence with a bearing on it.” (Miller-El

II, supra, 545 U.S. at p. 252) The Snyder court stated that the trial court bears a

“pivotal role in evaluating Batson claims,” for the trial court must evaluate the

demeanor of the prosecutor in determining the credibility of proffered

explanations, and the demeanor of the panelist when that factor is a basis for the

challenge. (Snyder, supra, 128 S.Ct. at p. 1208.)

It should be discernable from the record that 1) the trial court considered

the prosecutor’s reasons for the peremptory challenges at issue and found them to

be race-neutral; 2) those reasons were consistent with the court’s observations of

what occurred, in terms of the panelist’s statements as well as any pertinent

nonverbal behavior; and 3) the court made a credibility finding that the prosecutor

was truthful in giving race-neutral reasons for the peremptory challenges. As to

the second point, the court may not have observed every gesture, expression or

interaction relied upon by the prosecutor. The judge has a different vantage point,

and may have, for example, been looking at another panelist or making a note


16

It is true that under Code of Civil Procedure section 223 a criminal trial

court may limit counsel’s questioning of prospective jurors and “may specify the
maximum amount of time that counsel for each party may question an individual
juror, or may specify an aggregate amount of time for each party, which can then
be allocated among the prospective jurors by counsel.” The exercise of discretion
by trial judges in conducting voir dire is accorded considerable deference by
appellate courts. (People v. Taylor (1992) 5 Cal.App.4th 1299, 1313.)
Nevertheless, in exercising that discretion, trial courts should seek to balance the
need for effective trial management with the duty to create an adequate record and
allow legitimate inquiry. We express no opinion regarding appropriate voir dire
procedures in those cases occurring before Code of Civil Procedure section 223
was amended, effective 2001. (Stats. 2000, ch. 192, § 1.)

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when the described behavior occurred. But the court must be satisfied that the

specifics offered by the prosecutor are consistent with the answers it heard and the

overall behavior of the panelist. The record must reflect the trial court’s

determination on this point (see Snyder, supra, 128 S.Ct. at p. 1209), which may

be encompassed within the court’s general conclusion that it considered the

reasons proffered by the prosecution and found them credible.

In terms of appellate review, Miller-El II emphasized that the question of

purposeful discrimination continues to involve an examination of all relevant

circumstances. Comparative juror analysis was only one part of the Supreme

Court’s exhaustive review in an egregious case. The court did not rule that

comparative juror analysis, standing alone, would be sufficient to overturn a trial

court’s factual finding. Instead the court emphasized: “The case for

discrimination goes beyond these [juror] comparisons to include broader patterns

of practice during the jury selection.” (Miller-El II, supra, 545 U.S. at p. 253.)

Viewing the evidence in its totality, the court stated: “It blinks reality to deny that

the State struck Fields and Warren . . . because they were black. The strikes . . .

occurred during a selection infected by shuffling and disparate questioning that

race explains better than any race-neutral reason advanced by the State. The

State’s pretextual positions confirm Miller-El’s claim, and the prosecutors’ own

notes proclaim that the Sparling Manual’s emphasis on race was on their minds

when they considered every potential juror.” (Id. at p. 266.) Likewise, in Snyder,

comparative juror analysis was an additional form of evidence considered by the

Supreme Court in its review of the record. (Snyder, supra, 128 S.Ct. at p. 1211.)

The Supreme Court reiterated that reviewing courts must accord significant

deference to the factual findings on the question of discriminatory intent. (Snyder,

supra, 128 S.Ct. at pp. 1207-1208; Miller-El II, supra, 545 U.S. at p. 240;

Miller-El I, supra, 537 U.S. at pp. 339-340.) When an advocate’s peremptory

strike is challenged, the trial court must determine whether the advocate allowed

his or her calculus to be infected by racial bias and then lied to the court in an

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attempt to get away with it. As a reviewing court, we presume the advocate uses

peremptory challenges in a constitutional manner, and defer to the trial court’s

ability “to distinguish bona fide reasons for such peremptories from sham excuses

belatedly contrived to avoid admitting acts of group discrimination.” (Wheeler,

supra, 22 Cal.3d at p. 282.)

It is the trial court which is best able to place jurors’ answers in context and

draw meaning from all circumstances, including matters not discernable from the

cold record. As we emphasized in People v. Johnson, supra, 30 Cal.4th 1302:

“ ‘[T]he 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. . . . [¶] 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.]’ ” (Id. at pp.

1320-1321, quoting Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 683-684.) 17

Under our deferential standard, we consider whether substantial evidence

supports the trial court’s conclusions. (People v. Bonilla, supra, 41 Cal.4th at

pp. 341-342.) Evidence is substantial if it is reasonable, credible and of solid


17

People v. Johnson concerned the first Wheeler/Batson step—whether the

defendant had established a prima facie case of discrimination. Nevertheless, we
stated that concerns about the inability of a reviewing court to judge the dynamics
of jury selection apply equally in assessing the prosecutor’s credibility at the third
Wheeler/Batson step. (People v. Johnson, supra, 30 Cal.4th at p. 1320.)

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value. (People v. Abilez (2007) 41 Cal.4th 472, 504; People v. Johnson (1980) 26

Cal.3d 557, 578.) Comparative juror analysis is a form of circumstantial evidence.

(See Miller-El II, supra, 545 U.S. at p. 241.) The law has long recognized that

particular care must be taken when relying on circumstantial evidence. For

example, jurors in criminal cases are instructed that before they can rely on

circumstantial evidence to find a defendant guilty, they “must be convinced that

the only reasonable conclusion supported by the circumstantial evidence is that the

defendant is guilty. If you can draw two or more reasonable conclusions from the

circumstantial evidence, and one of those reasonable conclusions points to

innocence and another to guilt, you must accept the one that points to innocence.”

(Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 224.) This

principle has been part of our jurisprudence since at least 1945. (See People v.

Bender (1945) 27 Cal. 2d 164, 174-176, overruled on other grounds in People v.

Lasko (2000) 23 Cal.4th 101, 110.)

The rationale behind the rule is that, unlike direct evidence, circumstantial

evidence does not directly prove the fact in question. Instead, circumstantial

evidence may support a logical conclusion that the disputed fact is true. But

information may often be open to more than one reasonable deduction. Thus, care

must be taken not to accept one reasonable interpretation to the exclusion of other

reasonable ones. With regard to an appellate court’s review of circumstantial

evidence, we have observed: “ ‘ “If the circumstances reasonably justify the trier

of fact’s findings, the opinion of the reviewing court that the circumstances might

also be reasonably reconciled with a contrary finding does not warrant a reversal

of the judgment.” ’ ” (People v. Bean (1988) 46 Cal.3d 919, 933.) This same

principle of appellate restraint applies in reviewing the circumstantial evidence

supporting the trial court’s factual findings in a Wheeler/Batson holding.

E. The Trial Court’s Ruling in This Case

Defendant argues that the prosecutor’s proffered explanations for

exercising a peremptory challenge against C.A. were pretexts designed to disguise

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racial prejudice. The trial court found to the contrary. That finding is reasonable

and supported by substantial evidence.

The prosecutor’s first stated reason for challenging C.A. was her reaction to

receiving a traffic ticket. When the prosecutor asked whether any of the

prospective jurors ever had a “hostile, confrontational, [or] adverse” contact with

law enforcement, C.A. was the lone juror who raised her hand. In response to the

prosecutor’s question as to whether C.A. felt the officer was impolite, C.A. said,

“Well, no one ever feels they deserve a ticket.” She replied “yeah” when the

prosecutor asked whether C.A. felt the officer “was shading the truth a little bit.”

When asked whether she felt she deserved the ticket, C.A. said, “I didn’t know if I

deserved [the ticket] or not, so I just went along with it.”

In explaining his challenge, the prosecutor stated that while C.A. did not

depict the incident as adversarial and “wanted to take the officer’s word for it,” he

felt “there was probably a lot more to it than that.”

By raising her hand to answer the prosecutor’s question, C.A. necessarily

identified the experience as negative. C.A. stated her belief that the officer had

not been entirely truthful during the incident. “We have repeatedly upheld

peremptory challenges made on the basis of a prospective juror’s negative

experience with law enforcement.” (People v. Turner, supra, 8 Cal.4th at p. 171;

People v. Panah (2005) 35 Cal.4th 395, 442.) Moreover, C.A.’s answers could be

fairly characterized as equivocal, supporting the prosecution’s inference that C.A.

was not completely forthcoming about the incident and may have harbored some

resentment. Even though defendant characterizes C.A.’s answers as showing her

respect for law enforcement by giving the officer the benefit of the doubt, possible

contrary inferences do not undermine the genuineness of the prosecutor’s

explanation.

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As to the prosecutor’s second reason for excusing C.A, he noted that her

“brother” had been killed 10 or 11 years earlier in a gang-related murder.18 The

prosecutor stated that it was his experience that “victims of gangs, not always by

any means, but quite often are themselves gang members,” and so he was

concerned about “negative repercussions” for defendant’s case.

Defendant complains that the prosecutor never confirmed that C.A.’s

brother-in-law was a gang member, or explained how such an association would

affect C.A.’s performance as a juror. However, the prosecutor was entitled to rely

on this concern. Gang affiliation was at issue in the trial. Defendant was charged

with a violation of carrying a loaded firearm in public while an active member of a

criminal street gang (§ 12031, subd. (a)(2)(C)), and the venire panel was advised

that “there’s going to be some gang evidence.”19 As the Court of Appeal stated:

“The prosecutor’s concern about possible ‘negative repercussions’ of the gang-

related homicide in C. A.’s family arose from his own experience that victims of

gangs tend to be members of gangs. Like his trepidation about her negative

experience with law enforcement, his wariness about a possible family gang

connection was comprehensible, neither discriminatory nor implausible, and at

variance with nothing in the record.” An advocate is permitted to rely on his or

her own experiences and to draw conclusions from them. We have recognized

that even hunches and idiosyncratic reasons may support a peremptory challenge.

(People v. Turner, supra, 8 Cal.4th at p. 165.) As noted above, the question is not

whether a different advocate would have assessed the risk differently, but whether

this advocate was acting in a constitutionally prohibited way.


18

The prosecutor misspoke. C.A.’s brother-in-law was killed by gang

members.
19

Defendant later stipulated to being an active participant in a street gang and

aiding and abetting members of that gang in committing crimes.

31

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Additionally, defendant argues that the timing of the prosecutor’s challenge

to excuse C.A. is “suspicious” because it followed the striking of Black panelist

L.F. by defense counsel, thereby resulting in no Blacks serving on the jury.

However, the prosecutor had accepted the panel when it contained L.F. At the

Wheeler/Batson hearing, the prosecutor advised that “he would have been fine”

with L.F. on the jury. The prosecutor’s representation finds support in the record.

L.F. stated in voir dire that he is a boyhood friend of the one of the officers listed

as a witness in the case, and played sports with Curtis Rufus, the victim of the

attempted murder. The prosecutor’s acceptance of the panel containing a Black

juror strongly suggests that race was not a motive in his challenge of C.A. (People

v. Kelly (2007) 42 Cal.4th 763, 780; People v. Cornwell (2005) 37 Cal.4th 50, 69-

70.)

An analysis of the record demonstrates that substantial evidence supports

the trial court’s finding that the prosecutor’s proffered reasons were not pretextual.

Defendant’s reliance on comparative juror analysis does not undermine this

conclusion. The Court of Appeal, relying on our practice enunciated in People v.

Johnson, supra, 30 Cal.4th at p. 1322, declined defendant’s request to conduct a

comparative juror analysis. Consistent with our conclusion regarding the effect of

Miller-El II, supra, 545 U.S. 231 and Snyder, supra, 128 S.Ct. 1203, we undertake

that comparison here. It does not demonstrate purposeful discrimination.

Defendant compares C.A. to Juror No. 482753, one of the four Hispanics

seated on the jury. Juror No. 482753 described an incident two years earlier in

which he and his brother took away their mother’s car keys because she had been

drinking and wanted to drive. The juror explained that his mother called the

police, who responded and “saw that my mother was drunk, so they assumed we

had been drinking.” The officers told the juror and his brother to return the keys,

but they refused. The brother stepped forward and explained that they were not

trying to cause problems. One of the officers pulled out his club and told the

brothers they would be sprayed with Mace if they did not return the keys. The

32

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juror said there were two or three officers present and he thought the police “were

getting a little too crazy.” When the court inquired of his present feelings about

the incident, the juror responded, “I was about ready to write a letter to the editor.

I could have smeared them pretty bad, but I chose not to do it.” The juror

explained, “I figured they’re trying . . . to handle that situation without getting

hurt.” The juror told the court he could set aside the incident and not allow it to

impact his deliberation in defendant’s case.

Defendant

complains

that Juror No. 482753’s dissatisfaction with the police

concerning this incident is far more significant than C.A.’s comments about

getting a traffic ticket. However, the prosecutor’s hesitation regarding C.A. was

based on his sense of her possible lingering resentment. On the other hand, Juror

No. 482753 stated that he realized that the police were acting out of concern for

their safety and so he did not complain about their conduct. Contrary to

defendant’s assertion, these two panelists were not similarly situated on this issue.

Juror No. 482753 also stated that his cousin shot and killed someone when

he was 16 years old. The cousin was convicted and “had to go to jail,” but “[h]e’s

out now, and he’s doing great.” The juror stated that his cousin was treated fairly

by the police and courts, and “it was a bad situation, but it turned out to be a good

situation for him.” Defendant argues that the prosecutor apparently was not

concerned that Juror No. 482753’s cousin might be a gang member because he

never asked about gang status. But in light of the juror’s comments about his

cousin’s past experience and present circumstances, the prosecutor could have

found such question unnecessary.

Further, Juror No. 482753 stated that he was a high school acquaintance of

one of the police officers identified as a potential witness in defendant’s case. The

juror described the officer as “a really good guy.” This factor would likely have

been significant in the prosecutor’s decision to retain the juror and further

distinguishes this juror from C.A. The prosecution’s acceptance of this juror

demonstrates another aspect of jury selection. While an advocate may be

33

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concerned about a particular answer, another answer may provide a reason to have

greater confidence in the overall thinking and experience of the panelist.

Advocates do not evaluate panelists based on a single answer. Likewise, reviewing

courts should not do so.20

Defendant attempts to compare C.A. with panelist E.T., who was in the

second group of 21 panelists questioned. During questioning of panelists by the

court, E.T. stated that his son was “accused of being a gang member, and he was

exonerated.” Defendant argues that despite this information, the prosecutor

apparently did not have the same concerns about E.T. that he had about C.A.

Defendant’s argument is speculative. E.T. was never designated as one of the 13

prospective jurors subject to peremptory strikes, and thus we have no idea whether

the prosecutor would have kept or challenged E.T. This aspect of review

compares panelists who were struck with those who were allowed to serve or were

passed by the prosecution before being ultimately struck by the defense. (See

Miller-El II, supra, 545 U.S. at pp. 241 & 245, fn.4.)

Finally, we note that in examining the entire record, there is no other

evidence that the prosecution’s challenges were improperly based on race. There

is no indication that the prosecutor or his office relied on racial factors. There is

no evidence of procedural manipulation, deceptive questioning, or any of the other

signs of constitutional violation like those present in Miller-El II. Based on the

totality of the evidence, the prosecutor’s stated reasons for excusing C.A. are fully

supported. Defendant has failed to demonstrate those reasons were not genuine.


20

Additionally, we observe that the prosecutor’s decision not to exercise a

peremptory challenge against this Hispanic juror undermines defendant’s trial
court claim that the prosecutor improperly excluded minority panelists. (People v.
Kelly, supra, 42 Cal.4th at p. 780; People v. Cornwell, supra, 37 Cal.4th at pp. 69-
70.)

34

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DISPOSITION



The judgment of the Court of Appeal is affirmed.

CORRIGAN, J.

WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.



35

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CONCURRING OPINION BY BAXTER, J.




I concur in the majority opinion. I write separately, however, to emphasize

two points. First, the United States Supreme Court appears to have reserved the

issue whether reliance on comparative juror analysis may be deemed procedurally

defaulted if not raised at trial. Second, if the high court were to subsequently hold

that state courts may enforce a procedural default rule as such, nothing in today’s

majority opinion would preclude this court from doing so in the future.

In Snyder v. Louisiana (2008) __ U.S. __ [128 S.Ct. 1203] (Snyder), the

United States Supreme Court conducted a comparative juror analysis as part of its

evaluation of the petitioner’s claim that the prosecution impermissibly used a

peremptory challenge to exclude a prospective juror on the basis of race. (Batson

v. Kentucky (1986) 476 U.S. 79 (Batson); see People v. Wheeler (1978) 22 Cal.3d

258 (Wheeler).) In conducting the analysis, despite the fact that none had been

requested or performed at trial, the high court stated in a footnote: “The Louisiana

Supreme Court did not hold that petitioner had procedurally defaulted reliance on

a comparison of the African-American jurors whom the prosecution struck with

white jurors whom the prosecution accepted. On the contrary, the State Supreme

Court itself made such a comparison. See [State v. Snyder (La. 2006)] 942 So.2d

484, 495-496.” (Snyder, supra, __ U.S. at p. __, fn. 2 [128 S.Ct. at p. 1211, fn.

2].)

1

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As the majority observes, the meaning of the Snyder footnote is unclear,

and it does not necessarily suggest the United States Supreme Court would honor

a state procedural rule requiring that comparative juror analysis be conducted first

in the trial court or be deemed defaulted or forfeited. (Maj. opn., ante, at p. 19, fn.

14.) Nonetheless, the footnote may reasonably be viewed as reflecting the high

court’s intent to reserve this issue for future decision.

In the event the Supreme Court were to defer to state courts that impose a

procedural bar when a defendant relies on comparative juror analysis for the first

time on appeal, it bears emphasis that our decision today, which follows the high

court’s lead in Snyder, supra, __ U.S. __ [128 S.Ct. 1203], and Miller-El v. Dretke

(2005) 545 U.S. 231, would not hinder our future consideration and application of

a procedural default rule.

In this regard, the majority identifies a number of valid and pragmatic

considerations that support application of a procedural default rule in cases where

the defendant fails to request a comparative juror analysis at trial. Most notably,

“ ‘a retrospective comparison of jurors based on a cold appellate record may be

very misleading when alleged similarities were not raised at trial. In that situation,

an appellate court must be mindful that an exploration of the alleged similarities at

the time of trial might have shown that the jurors in question were not really

comparable.’ ” (Maj. opn., ante, at p. 19, quoting Snyder, supra, __ U.S. at p. __

[128 S.Ct. at p.1211].) Indeed, even if the trial court happens to conduct a

reasonably thorough exploration of the subject matter as to which similarities are

alleged, there are a variety of factors and considerations that go into a lawyer’s

decision to select certain jurors while challenging others that appear to be similar,

for example, “ ‘[T]he 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.’ ” (Maj. opn., ante, at p. 23, quoting People v. Johnson (1989) 47 Cal.3d

2

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1194, 1220.) When a comparative juror analysis is undertaken for the first time on

appeal, the record is likely to reflect none of these other considerations.

Moreover, requiring a defendant to seek a comparative analysis at trial

promotes the policy of judicial economy and fairness in at least two ways. First, if

the defendant perceives that certain unchallenged jurors are similarly situated to

prospective jurors who were challenged, then alerting the trial court to that state of

affairs would permit the court to take immediate curative action and avoid the time

and expense of reversal and retrial if it finds the defendant’s complaint

meritorious. (See Watkins v. State (Tex.Crim.App. 2008) 245 S.W.3d 444, 457-

458 (conc. opn. of Keller, P.J.).) Second, a trial court that is called upon to

conduct a comparative analysis could ensure that the prosecution is afforded a fair

opportunity both to state its reasons for challenging a prospective juror and to

explain its failure to challenge any alleged similarly situated jurors. This

minimizes the prospect of appellate speculation in the evaluation of a

Wheeler/Batson claim. (See id. at p. 458.)

In sum, the United States Supreme Court has not yet addressed whether a

state court may deem a defendant procedurally barred on appeal from relying on

juror comparisons to support a Wheeler/Batson third stage claim, if the defendant

did not rely on such comparisons at trial. Given this circumstance, I fully agree

that, for the time being, we should view the high court’s recent decisions as

requiring reviewing courts to perform comparative juror analysis if requested and

if the record is adequate to permit comparisons, even when such an analysis was

not conducted at trial.

BAXTER, J.

I CONCUR:

CHIN, J.

3

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CONCURRING OPINION BY MORENO, J.




I agree with the majority that appellate courts should, under appropriate

circumstances, engage in comparative juror analysis as a means of detecting the

discriminatory use of peremptory challenges in violation of People v. Wheeler

(1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79. Miller-El v.

Dretke (2005) 545 U.S. 231 and Snyder v. Louisiana (2008) __ U.S. __ [128 S.Ct.

1203] (Snyder) teach us implicitly that however problematic it may be to conduct

such comparative analysis for the first time on appeal, it is even more problematic

to categorically refuse to conduct such analysis, thereby permitting some

Wheeler/Batson violations to go undetected. Indeed, because those who

discriminate rarely admit to discrimination, comparative analysis has been widely

used in a variety of fields to ferret out the unlawful discrimination that hides

behind pretext. (See, e.g., Schwemm, Housing Discrimination: Law and

Litigation (2007 ed.) § 32.2, pp. 32-4 to 32-5 [noting the common use of Black

and White “testers” to determine whether Black renters and home buyers are

subject to discrimination].) It is therefore unsurprising the United States Supreme

Court has employed the use of such comparative analysis as a means of detecting

unlawful exclusion of persons from jury service on the basis of race. I write

separately to clarify the circumstances under which such comparative analysis is

appropriate.

1

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The United States Supreme Court recently emphasized that the deference

appellate courts should accord to trial court decisions regarding Batson challenges

“is especially appropriate where a trial judge has made a finding that an attorney

credibly relied on demeanor in exercising a strike.” (Snyder, supra, __ U.S. at p.

__ [128 S.Ct. at p. 1209].) As the majority convincingly explains, peremptory

challenges may turn upon perceptions not available to someone reading the cold

record — the tone of voice, facial expression, body language, etc., of the

prospective juror. When a trial judge validates a prosecutor’s challenge based on

the prospective juror’s demeanor, and makes clear that such demeanor is the

primary reason for validating the challenge, then it is difficult to imagine any

circumstance under which an appellate court would second-guess that judgment.

On the other hand, when the challenge is made based on factors other than

demeanor, or, in the case of Snyder, the challenge is based both on demeanor and

nondemeanor considerations, and the trial court does not state or imply on the

record that the challenge based on demeanor is credible, then appellate courts may

use comparative juror analysis to test the validity of the prosecutor’s proffered

challenges, comparing the supposedly objectionable characteristics of the rejected

prospective juror with the characteristics of seated jurors. (Snyder, supra, __ U.S.

at pp. ___ [128 S.Ct. at pp. 1209-1213].) Such analysis, often in combination with

other indications of bias, such as the inherently dubious nature of the explanation

for the challenge, or an apparent pattern of excluding minority jurors, may be a

legitimate basis for an appellate court’s conclusion that there was a

Wheeler/Batson violation in the court below. (Ibid.)

In the present case, as the majority recounts, one reason the prosecutor gave

for peremptorily challenging Prospective Juror C.A. is that her brother-in-law had

been killed 10 or 11 years earlier in a gang-related murder and that this could have

meant that her brother-in-law was himself a gang member, although the prosecutor

2

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made no inquiry to confirm that. Defendant challenges the inherent dubiousness

of this reasoning, buttressing his argument by pointing to the possible gang

affiliation of Juror No. 482753’s cousin, who had shot and killed someone when

he was 16 years old. Were it the case that the prosecutor’s only reason for

excluding C.A. was her brother-in-law’s possible gang affiliation, I might agree

with defendant’s argument. However, as the majority explains, other reasons for

excluding C.A., most particularly the fact that she was the only one to raise her

hand in response to the question of whether a prospective juror had a hostile,

confrontational or adverse contact with law enforcement, provide sufficient

justification for the peremptory challenge. Moreover, like the majority, I agree

that Juror No. 482753 demonstrated a more positive attitude toward law

enforcement, thereby undermining defendant’s argument that he was comparable

to C.A. On this basis, I concur in the judgment.

MORENO, J.

3

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lenix
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 10/13/06 – 5th Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S148029
Date Filed: July 24, 2008
__________________________________________________________________________________

Court: Superior
County: Kern
Judge: Arthur E. Wallace

__________________________________________________________________________________

Attorneys for Appellant:

A. M. Weisman, under appointment by the Supreme Court, for Defendant and Appellant.

Cliff Gardner; Lawrence A. Gibbs; and Elisabeth Semel for California State Conference of the National
Association for the Advancement of Colored People, Rabbi Allen B. Bennett, Dr. James A. Donahue,
Suleiman Ghali, Rev. Cannon Charles Gibbs and Rev. Dr. Cecil L. Murray as Amici Curiae on behalf of
Defendant and Appellant.

Michael Ogul, Chief Deputy Public Defender (Solano) and Denise Graff, Deputy Public Defender (Orange)
for California Public Defenders Association and California Attorneys for Criminal Justice as Amicus
Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General,
Donald de Nicola, Deputy State Solicitor General, Robert R. Anderson and Dane R. Gillette, Chief
Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Stan
Cross, Janis S. McLean, David A. Rhodes, Janet E. Neeley and Daniel B. Bernstein, Deputy Attorneys
General, for Plaintiff and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

A. M. Weisman
Law Office of A.M. Weisman
P.O. Box 4236
Diamond Bar, CA 91765-0236
(909) 622-2677

Daniel B. Bernstein
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5171

---

Petition for review after the Court of Appeal modified and affirmed a judgment of conviction of criminal offenses. The court limited review to the following issue: Must an appellate court perform a comparative juror analysis for the first time on appeal to evaluate the genuineness of the prosecutor's reasons for peremptorily challenging prospective jurors? (See People v. Avila (2006) 38 Cal.4th 491, 546; People v. Guerra (2006) 37 Cal.4th 1067, 1106.)

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Thu, 07/24/2008	44 Cal. 4th 602, 187 P.3d 946, 80 Cal. Rptr. 3d 98	S148029	Review - Criminal Appeal	closed; remittitur issued

Disposition
Jul 24 2008	Opinion: Affirmed

Dockets
Nov 6 2006	Received premature petition for review   Appellant Arthur Lourdes Lenix Attorney A.M. Weisman, Court of Appeal appt.
Nov 14 2006	Case start: Petition for review filed
Nov 16 2006	Record requested
Nov 20 2006	Received Court of Appeal record   three doghouse ( volumes 1, 2 & 3)
Jan 2 2007	Time extended to grant or deny review   to and including February 9, 2007 or the date upon which review is either granted or denied.
Jan 24 2007	Petition for review granted; issues limited (criminal case)   The issue to be briefed and argued is limited to the following: Must an appellate court perform a comparative juror analysis for the first time on appeal to evaluate the genuineness of the prosecutor's reasons for peremptorily challenging prospective jurors? (See People v. Avila (2006) 38 Cal.4th 491, 546; People v. Guerra (2006) 37 Cal.4th 1067, 1106.) Votes: George, C. J., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ. Moreno, J., was absent and did not participate.
Feb 14 2007	Counsel appointment order filed   Upon request of appellant for appointment of counsel, A.M. Weisman is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Mar 13 2007	Opening brief on the merits filed   Appellant Arthur Lourdes Lenix Attorney A.M. Weisman
Apr 6 2007	Request for extension of time filed   to May 11, 2007 to file respondents answer brief on the mertis. Daniel B. Bernstein, Deputy Attorney General
Apr 11 2007	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including May 11, 2007.
Apr 27 2007	Answer brief on the merits filed   The People, Respondent by Daniel B. Bernstein, counsel
May 15 2007	Reply brief filed (case fully briefed)   Appellant Arthur Lourdes Lenix Attorney A.M. Weisman
Mar 26 2008	Supplemental briefing ordered   The parties are requested to brief the significance of the United States Supreme Court's opinion in Snyder v. Louisiana (March 19, 2008, 06-10119) __U.S.__ [2008 WL 723750]) on the issue of whether an appellate court must perform a comparative juror analysis for the first time on appeal to evaluate the genuineness of the prosecutor's reasons for peremptorily challenging prospective jurors. The parties are directed to file simultaneous supplemental letter briefs limited to this question on or before April 7, 2008. The parties may file simultaneous letter reply briefs on or before April 17, 2008.
Apr 7 2008	Supplemental brief filed   The People, Respondent by Daniel B. Bernstein, counsel
Apr 7 2008	Supplemental brief filed   Arthur L. Lenix, Appellant by A.M. Weisman, counsel
Apr 14 2008	Supplemental brief filed   Arthur Lenix, Appellant by A.M. Wiseman, counsel
Apr 17 2008	Filed:   Supplemental letter reply brief, respondent by Daniel Bernstein, Deputy Attorney General
Apr 23 2008	Received application to file Amicus Curiae Brief   untimely application of the California State Conference of the NAACP in support o fAppellant. by counsel, Cliff Gardner.
Apr 25 2008	Received:   letter from counsel for proposed amicus curiae re: untimely appliation.
Apr 28 2008	Permission to file amicus curiae brief granted   The application of the California State Conference of the National Association for the Advancement of Colored People, et al., for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 28 2008	Amicus curiae brief filed   California Sate Conference of the NAACP . by counsel, Cliff Gardner.
Apr 30 2008	Case ordered on calendar   to be argued on Wednesday, June 4, 2008, at 9:00 a.m., in Los Angeles
May 2 2008	Argument rescheduled   The case has been moved from the June calendar to the court's late May calendar. It will now be argued on Tuesday, May 27, 2008, at 1:30 p.m., in San Francisco.
May 5 2008	Received application to file Amicus Curiae Brief   California Public Defenders Association and California Attorneys for Criminal Justice in support of appellant, by Michael Ogul, counsel
May 6 2008	Filed:   letter from the Habeas Corpus Resource Center, dated May 6, 2008, to join in Argument II of the AC brief filed by the California State Conference of the National Association for the Advancement of Colored People.
May 6 2008	Filed:   letter from the Office of the State Public Defender, dated May 5, 2008, to join in Argument II of the AC brief filed by the California State Conference of the National Association for Advancement of Colored People.
May 6 2008	Permission to file amicus curiae brief granted   The application of California Public Defenders Association and California Attorneys for Criminal Justice for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
May 6 2008	Amicus curiae brief filed   California Public Defenders Association and California Attorneys for Criminal Justice in support of appellant. by Michael Ogul, counsel
May 8 2008	Received:   letter from the Office of the State Public Defender dated May 6, 2008, attaching the proof of service to previous letter submitted joining in the amicus brief filed by the California State Conference of the National Association for Advancement of Colored People.
May 13 2008	Response to amicus curiae brief filed   Appellant - Arthur Lourdes Lenix answer to NAACP Amicus Brief by A.M. Weisman, counsel
May 16 2008	Response to amicus curiae brief filed   The People, respondents by Daniel B. Bernstein, Deputy Attorney General
May 22 2008	Filed:   additional authorities Respondent, Attorney General
May 27 2008	Cause argued and submitted
Jul 23 2008	Notice of forthcoming opinion posted
Jul 24 2008	Opinion filed: Judgment affirmed in full   Opinion by Corrigan, J. ----joined by George, C.J., Kennard, Baxter, Werdegar, Chin & Moreno, JJ. Concurring opinion by Baxter, J. ----joined by Chin, J. Concurring opinion by Moreno, J.
Jul 30 2008	Rehearing petition filed   Appellant, Arthur Lourdes Lenix by counsel, A.M. Weisman.
Jul 31 2008	Time extended to consider modification or rehearing   The time for granting or denying rehearing in the above-entitled case is hereby extended to and including October 22, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 24 2008	Rehearing denied   Corrigan, J., was absent and did not participate.
Sep 24 2008	Remittitur issued (criminal case)
Oct 2 2008	Received:   receipt for remittitur CA/5.
Oct 29 2008	Compensation awarded counsel   Atty Weisman
Nov 19 2008	Received:   notice of writ of certiorari being filed in the U.S.S.C.
Jan 29 2009	Received:   copy of order denying certiorari in the U.S.S.C.

Briefs
Mar 13 2007	Opening brief on the merits filed
Apr 27 2007	Answer brief on the merits filed
May 15 2007	Reply brief filed (case fully briefed)
Apr 28 2008	Amicus curiae brief filed
May 6 2008	Amicus curiae brief filed
May 13 2008	Response to amicus curiae brief filed
May 16 2008	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Jan 9, 2009 Annotated by diana teasland

Written by Christopher Re HISTORY: Defendant/Appellant Lenix was convicted before the Kern County Superior Court of first degree murder, attempted murder, conspiracy to commit murder, possession of a firearm as a convicted felon, and carrying a loaded firearm in public while an active member of a criminal street gang. Super. Ct. No. BF100124B. The Court of Appeal affirmed the convictions against Lenix and remanded for sentencing. Cal.App. 5 Dist. (Oct 13, 2006). Lenix appealed. DISPOSITION: The judgment of the Court of Appeals was affirmed. Petition for rehearing was denied Sept. 24, 2008. Lenix filed a petition for certiorari to the Supreme Court of the United States on November 6, 2008 (NO. 08-7277). SUMMARY: Defendant/Appellant challenged his convictions under the Equal Protection Clause of the Fourteenth Amendment and Article 1, Section 16 of the California Constitution, claiming that the prosecution peremptorily challenged an African American potential juror based on her race. After lengthy review of federal and state precedent, the Court applied the three-step Batson test. Because the trial judge asked the prosecution for its reasons for excluding the juror, the only Batson step at issue was the third—whether the prosecution’s stated reasons were mere pretext for purposive racial discrimination. The prosecution claimed at trial that it had challenged the potential juror because her brother-in-law was a victim of a gang-related murder, and because she admitted to a negative encounter with a police officer while contesting a traffic ticket. Using comparative juror analysis, the Court determined that “substantial evidence” supported the trial court’s judgment that the prosecution’s stated reasons were not pretextual. The defendant’s convictions were affirmed. KEY HOLDINGS: 1) Substantial evidence supported the trial court’s conclusion that the prosecution’s dismissal of an African-American potential juror was not purposely discriminatory. 2) Both the appellate and trial courts must employ comparative juror analysis to complete the third step of a Batson inquiry.