Filed 8/25/03
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S103343
v.
) Ct.App.
5
F034873
JOHN PAUL REYNOSO,
Tulare
County
Defendant and Appellant. )
Super.
Ct.
No.
42048
)
THE PEOPLE,
Plaintiff and Respondent,
S103340
v.
) Ct.App.
5
F034709
JULIAN JESUS REYNOSO,
Tulare
County
Defendant and Appellant. )
Super.
Ct.
No.
42048
Defendants John Paul Reynoso and Julian Jesus Reynoso were jointly tried
and convicted by a jury of the first degree murder of Mario Martinez and related
offenses. The trial court rejected a defense motion challenging the prosecutor’s
peremptory excusal of two Hispanic jurors as unconstitutionally based on group
bias. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson) [U.S. Const.]; People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler) [Cal. Const.].) The Court of Appeal
disagreed respecting the peremptory excusal of one of the two jurors, and on that
1
basis reversed the judgments. We granted the People’s petitions for review and
consolidated both matters for purposes of oral argument and opinion.
In Wheeler we held that “the use of peremptory challenges to remove
prospective jurors on the sole ground of group bias” violates a defendant’s right
under the California Constitution to a trial by jury drawn from a representative
cross-section of the community. (Wheeler, supra, 22 Cal.3d at p. 276-277.) We
recognized there is a general presumption “that a party exercising a peremptory
challenge is doing so on a constitutionally permissible ground,” but went on to
explain that the presumption is rebuttable, formulating a three-step test for
establishing a claim of Wheeler error. (Id. at p. 278.) In the final analysis, the
party raising the claim bears the burden of showing “from all the circumstances of
the case . . . a strong likelihood that such persons are being challenged because of
their group association rather than because of any specific bias.” (Id. at p. 280,
italics added.) We further recognized that we must “rely on the good judgment of
the trial courts to distinguish bona fide reasons for such peremptories from sham
excuses belatedly contrived to avoid admitting acts of group discrimination.” (Id.
at p. 282.) The high court has agreed, explaining that “the trial judge’s findings in
the context under consideration here largely will turn on evaluation of credibility,”
and for that reason “a reviewing court ordinarily should give those findings great
deference.” (Batson, supra, 476 U.S. at p. 98, fn. 21.)”
We granted review to consider whether the Court of Appeal misplaced
reliance on this court’s recent decision in People v. Silva (2001) 25 Cal.4th 345
(Silva) in reversing the trial court’s ruling that no Wheeler error occurred here.
We conclude that the holding of Silva is inapposite on these facts. Having
considered all the circumstances of this case (Wheeler, supra, 22 Cal.3d at p. 280),
we further conclude that the trial court’s determination that no Wheeler error
occurred should be given the customary “great deference” normally afforded such
2
rulings. (Batson, supra, 476 U.S. at p. 98, fn. 21.) Accordingly, we shall reverse
the judgments of the Court of Appeal.
I. FACTS AND PROCEDURAL HISTORY
Defendant John Reynoso and his brother Julian were at a residence with
several others, including the murder victim, Mario Martinez. John Reynoso and
Martinez got into an argument, which culminated in Reynoso fatally shooting
Martinez in the chest at point-blank range with a shotgun. Reynoso admitted
shooting Martinez, but claimed he did so because he was in fear for his brother
Julian’s life. Julian’s defense was that he did not aid or abet his brother and had
no prior knowledge that John was going to shoot Martinez. Julian himself was
armed with a handgun and threatened one of those present with it as the two
brothers fled. Both defendants were convicted of first degree murder. John
Reynoso was found to have used a firearm and inflicted great bodily injury during
the commission of the murder within the meaning of Penal Code section 12022.53,
subdivision (d). Julian Reynoso was also convicted of assault with a firearm,
knowingly and maliciously dissuading a witness, and being an accessory after the
fact.
Each defendant separately appealed his judgment of guilt. Defendant Julian
Reynoso raised issues pertaining to his murder conviction as well as his separate
convictions of related offenses. He thereafter filed supplemental briefing seeking
to join in several claims in brother John’s appeal, including the Batson/Wheeler
claim. The Court of Appeal took judicial notice of John’s appeal and allowed
Julian to join in the claim, but did not consolidate the matters. The court issued
separate but nearly identical opinions, published in John Reynoso’s case,
3
unpublished in Julian Reynoso’s case, utilizing the identical analysis and
discussion to reverse each judgment for Batson/Wheeler error.1
The facts relevant to the Batson/Wheeler claim are as follows. Jury
selection lasted less than one day. At the start of voir dire, the trial court excused
a total of 53 prospective jurors on the basis of claims of hardship, without
objection from the defense. More than one-quarter of those excused for claimed
hardship (at least 14 prospective jurors, and perhaps as many as 17) were of
Hispanic ancestry. The People exercised a total of four peremptory challenges, the
last two of which were to Hispanic Prospective Jurors Mary L. and Elizabeth G.
Defendants are Hispanic. So, too, was the murder victim. The final jury sworn to
hear defendants’ case contained no Hispanic jurors.
The trial court conducted the voir dire and initially asked each prospective
juror to answer nine questions posted on a board in the courtroom, which asked for
his or her name, general address, occupation and length of occupation, spouse’s
occupation and length of occupation, marital status, prior jury service, if any (type
of case, how long ago, whether a verdict was reached), past involvement in a
criminal case (as a charged suspect, victim, or witness to a crime), legal or medical
training, if any, past involvement in law enforcement, if applicable, and whether
they had any close friends or relatives in law enforcement.
Mary L. gave the following response to the court’s general inquiry: “My
name’s [Mary L.]. I live in Earlimart, California. I’ve lived there most of my life.
I’m a case manager for at-risk youth. My husband is a foreman for farm labor.
I’ve never been selected for jury. I’ve never been involved in a criminal charge or
1
Since these codefendants were jointly tried and convicted, and all of the
facts and arguments relevant to the Batson/Wheeler issue that led to reversal were
one and the same in the trial court, the Court of Appeal, and now in this court, we
consolidated these matters for purposes of oral argument and opinion.
4
victim. I have no legal or medical training. Never been involved in law
enforcement. And I do have relatives that are in law enforcement.”
Mary L. was thereafter excused as a result of the prosecutor’s exercise of
his third peremptory challenge, after he had passed and accepted the jury four
times while she was seated in the jury box.
Elizabeth G. gave the following response to the court’s general inquiry:
“My name is [Elizabeth G.]. I just moved to Porterville for four months. My
occupation I’m a customer service rep. I’ve been there for eight and a half years.
My spouse, he’s a construction supervisor. And he’s been that for over 18 years.
I’ve never served on a jury before. I’ve never been involved in any criminal [sic]
or been a victim. I don’t have any legal or medical training. Never been involved
in any law enforcement. As far as a friend, I have a friend who’s an officer in
Porterville. As far as the relative, he’s a brother who is a correctional officer.”
Elizabeth G. was thereafter excused as a result of the prosecutor’s exercise
of his fourth and final peremptory challenge, after he had passed and accepted the
jury 14 times while she was seated in the jury box.
After jury selection was completed but before the jury and alternates were
sworn, defendant Julian Reynoso made a Batson/Wheeler motion, arguing that the
peremptory challenges to Mary L. and Elizabeth G. were made solely out of group
bias, i.e., on racial grounds, in violation of his constitutional rights, rather than for
proper reasons specific to the challenged prospective jurors. (Batson, supra, 476
U.S. at pp. 84-89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)
Counsel articulated the basis for his motion as follows: “The [prosecutor]
kept passing and passing and passing and saying that they were happy with the
jury, happy with the jury. [¶] Of the only juror they excused initially was the one
gentleman who knew me from [a local tennis club], and then after that the only
two other jurors that were dismissed [by the prosecutor] were Hispanics,
5
[Elizabeth G.] and [Mary L.] [¶] I would take note of the fact that the jury as it’s
constituted now has twelve Whites as the twelve jurors and three white alternates.
I think it was a deliberate attempt by the prosecution to eliminate the two
Hispanics that made it to the jury panel [sic: box] from the jury panel. The two
defendants in this case are both Hispanic. I believe that that’s a violation of
Wheeler, your Honor.” Codefendant John Reynoso joined in the motion.
The trial court indicated that “because the People did only exercise . . . four
[peremptory] challenges and two of those were Hispanic, I’m going to ask that the
People give their reasons why they excused those two.” The prosecutor sought
clarification as to whether the court was ruling that a prima facie case (of
systematic exclusion for group bias) had been shown. The court replied, “Yes.”
The prosecutor proceeded to give his reasons for excusing Mary L. and
Elizabeth G.
The prosecutor’s reasons for exercising his third peremptory challenge to
excuse Prospective Juror Mary L., were these: “Your Honor, the People dismissed
[Mary L.] based upon her being a counselor for at-risk youth. The People feel that
[Mary L.] would have an undue sympathy for both defendants in this case because
they are young and definitely if not at risk, past risk. [¶] The People feel that she
would associate with the people she works with and she would probably would
have pity on them.”
The prosecutor’s reasons for exercising his fourth peremptory challenge to
excuse Prospective Juror Elizabeth G., were as follows: “In terms of
[Elizabeth G.], the People dismissed [Elizabeth G.] because she was [a] customer
service representative. In terms of that, we felt that she did not have enough
educational experience. It seemed like she was not paying attention to the
proceedings and the People felt that she was not involved in the process. The
People felt she would not be a good juror.”
6
The trial court responded, “And I accept those reasons as being not based
upon race or ethnicity. And I don’t find that there has been a violation of Wheeler
and that the—there was not a systematic exclusion of a recognized ethnic group,
i.e., Hispanics in this case. So the motion is denied.”
Counsel for defendant Julian Reynoso asked if he could make a couple of
points for the record, and the court permitted him to do so. The following
colloquy then took place:
“[Counsel for Julian]: And a couple points for the record is that counsel for
the People passed on [Elizabeth G.] about seven or eight times. Then when I think
he sensed that the defense was getting ready to pass, then it [sic: he] excused
[Elizabeth G.] There’s nothing about what [Elizabeth G.] said in terms of her
background that would make her be sympathetic to the defendants in this case.
When she said she was a customer service rep. Her husband is a construction
supervisor. [¶] She’s got friends in the Porterville [Police Department], her
brother or brother-in-law works for the California Department of Corrections.
There was nothing in her responses or her demeanor that would justify just
excusing her other than it being a race-based exclusion is our position.
“The Court: And I believe that there was another Hispanic that was
excused not by the People, but by the defense, and that was [Carolyn G.].
“[Counsel for Julian]: That was a legitimate reason. I didn’t excuse her.
“The Court: I’m not saying it wasn’t legitimate. You just brought up--I’m
not arguing with you, but I want the record to be clear, you argued that even a
person who the People should want to have on, namely law enforcement
background, may still kick off [sic: be kicked off] because of being Hispanic. I’m
just pointing out that [Carolyn G.] was another person that is [of] Hispanic
background but they did not kick [her] off and I believe her background was that
she had been the one who had been kidnapped.
7
“[Counsel for Julian]: Right. I would say she would want to be kept on by
the People because she’s been a victim of a violent crime at gunpoint.
“The Court: But your argument was that so should the other person2
because they had law enforcement background.
“[Counsel for Julian]: I didn’t say she was law enforcement background.
“The Court: I thought you said—
“[Counsel for Julian]: I was looking over my notes in terms of what she3
said in answer to the nine questions that are up on the little poster. She responded
that she has friends in the Porterville [Police Department].
“The Court: Right. Law enforcement people.
“[Counsel for Julian]: And a brother who works for California Department
of Corrections. So I’m just saying that based on those responses, there’s no
legitimate reason to exclude her based on those responses other than the fact that
she has her – she’s Hispanic. I’m trying to make that for the record. [¶] [The
prosecutor] argued that [Mary L.] would be sympathetic because she works with at
risk youth. That’s his reason for excusing her. But for the record also the reason
[Carolyn G.] was excused, as I understand it from [counsel for John Reynoso,] is
because she was a victim of violent crime where guns were involved. That’s what
we have here.
“The Court: Okay. Thank you.
“[The Prosecutor]: I’d like the record to reflect that defense counsel also
had a challenge to [Mrs. T.], [who] seemed and looked Hispanic to me and I think
they exercised or kicked off her as well.
2
In context, it is clear that “the other person” the court was now referring to
was Elizabeth G., whom the People had excused with their final peremptory
challenge.
3
Again, in context, it is clear counsel is here referring to Elizabeth G.
8
“The Court: All right. We’ll see you tomorrow morning at 9:45.”
The trial court made no further comment on its denial of the
Batson/Wheeler motion.
The Court of Appeal concluded that this court’s decision in People v. Silva
(2001) 25 Cal.4th 345 (Silva), required reversal of the judgments. The court
focused solely on the prosecutor’s peremptory challenge of Elizabeth G., and,
more specifically, on the second race-neutral reason he gave for excusing her—
that “[she] was not paying attention and was not involved in the process.” The
court believed that the fact that the trial court “did not respond to or even
acknowledge defendant’s [statement] that there was nothing in [Elizabeth G.’s]
demeanor that would justify excusing her,” even though defendant’s statement
“demonstrated his disagreement with the prosecutor’s assessment” of that
prospective juror, was a significant transgression of this court’s holding in Silva.
The Court of Appeal acknowledged that “[t]he reasons given by the
prosecutor in People v. Silva, supra, 25 Cal.4th 345, were contradicted by the
record and were thus implausible and unsupported by the record,” but nevertheless
found Silva apposite and controlling on these facts. The court reasoned further
that “[w]hile the record does not contradict the reasons given [by the prosecutor]
here, neither does the record on appeal support them. The record does not
engender confidence in a finding that the trial court engaged in a sincere and
reasoned attempt to evaluate the prosecutor’s justification for challenging
[Elizabeth G.] First, as previously discussed, the initial reason given by the
prosecutor ([Elizabeth G.] was a customer service representative with a lack of
educational experience) was not supported by the record and lacked any content
related to the case being tried. Second, the demeanor reason given by the
prosecutor, which is not reflected within the cold record on appeal, was disputed
by the defense yet not clarified in any way by the court. Finally, in rejecting
9
defendant’s argument, rather than focusing on the question of validity of the
People’s justifications, the trial court attempted to buttress its finding by analyzing
a Hispanic juror not challenged by the People, but excused by the defense. . . . [¶]
Trial courts should not relieve prosecutors of their burden during a Wheeler
motion by readily accepting vague explanations. On this record, we are unable to
conclude that the trial court satisfied its obligations to evaluate the prosecutor’s
explanation. (People v. Silva, supra, 25 Cal.4th at p. 385.)”
We granted the Attorney General’s petition for review.
II. DISCUSSION
A. Wheeler
In Wheeler we held that “the use of peremptory challenges to remove
prospective jurors on the sole ground of group bias” violates a defendant’s right
under the California Constitution to a trial by jury drawn from a representative
cross-section of the community. (Wheeler, supra, 22 Cal.3d at p. 276, italics
added.) Discrimination in the exercise of peremptory challenges likewise violates
the defendant’s equal protection rights under the federal Constitution. (Batson,
supra, 476 U.S. at pp. 84-89.) Wheeler recognized there is a general presumption
“that a party exercising a peremptory challenge is doing so on a constitutionally
permissible ground,” but went on to explain that the presumption is rebuttable.
(Wheeler, supra, 22 Cal.3d at p. 278.) We adopted the following test in Wheeler
for determining when the exercise of peremptory challenges violates a defendant’s
constitutional jury trial right: “If a party believes his opponent is using his
peremptory challenges to strike jurors on the ground of group bias alone, he must
raise the point in timely fashion and make a prima facie case of such
discrimination to the satisfaction of the court. First, . . . he should make as
complete a record of the circumstances as is feasible. Second, he must establish
that the persons excluded are members of a cognizable group within the meaning
10
of the representative cross-section rule. Third, from all the circumstances of the
case he must show a strong likelihood that such persons are being challenged
because of their group association rather than because of any specific bias.”
(Wheeler, supra, 22 Cal.3d at p. 280, fn. omitted; see also People v. Johnson
(2003) 30 Cal.4th 1302, 1309.)
We then explained how a defendant would go about making the necessary
showing to perfect a Wheeler motion: “[T]he party may show that his opponent
has struck most or all of the members of the identified group from the venire, or
has used a disproportionate number of his peremptories against the group. He may
also demonstrate that the jurors in question share only this one characteristic—
their membership in the group—and that in all other respects they are as
heterogeneous as the community as a whole. Next, the showing may be
supplemented when appropriate by such circumstances as the failure of his
opponent to engage these same jurors in more than desultory voir dire, or indeed
to ask them any questions at all. Lastly, . . . the defendant need not be a member
of the excluded group in order to complain of a violation of the representative
cross-section rule; yet if he is, and especially if in addition his alleged victim is a
member of the group to which the majority of the remaining jurors belong, these
facts may also be called to the court’s attention.” (Wheeler, supra, 22 Cal.3d at
pp. 280-281, fn. omitted; People v. Johnson, supra, 30 Cal.4th at p. 1309.)
Lastly, Wheeler discusses how a trial court should rule on the motion:
“Upon presentation of this and similar evidence—in the absence, of course,
of the jury—the court must determine whether a reasonable inference arises that
peremptory challenges are being used on the ground of group bias alone. We
recognize that such a ruling ‘requires trial judges to make difficult and often close
judgments. They are in a good position to make such determinations, however, on
the basis of their knowledge of local conditions and of local prosecutors.’
11
[Citation.] They are also well situated to bring to bear on this question their
powers of observation, their understanding of trial techniques, and their broad
judicial experience. We are confident of their ability to distinguish a true case of
group discrimination by peremptory challenges from a spurious claim interposed
simply for purposes of harassment or delay.
“If the court finds that a prima facie case has been made, the burden shifts
to the other party to show if he can that the peremptory challenges in question
were not predicated on group bias alone. The showing need not rise to the level of
a challenge for cause. But to sustain his burden of justification, the allegedly
offending party must satisfy the court that he exercised such peremptories on
grounds that were reasonably relevant to the particular case on trial or its parties or
witnesses—i.e., for reasons of specific bias as defined herein. He, too, may
support his showing by reference to the totality of the circumstances: for example,
it will be relevant if he can demonstrate that in the course of this same voir dire he
also challenged similarly situated members of the majority group on identical or
comparable grounds. And again we rely on the good judgment of the trial courts
to distinguish bona fide reasons for such peremptories from sham excuses
belatedly contrived to avoid admitting acts of group discrimination.
“If the court finds that the burden of justification is not sustained as to any
of the questioned peremptory challenges, the presumption of their validity is
rebutted.” (Wheeler, supra, 22 Cal.3d at pp. 281-282, fn. omitted; People v.
Johnson, supra, 30 Cal.4th at pp. 1309-1310.)
B. Batson
The high court has devised a similar test for determining when the
discriminatory exercise of peremptory challenges violates the equal protection
clause of the federal Constitution: “[O]nce the opponent of a peremptory
challenge has made out a prima facie case of racial discrimination (step one), the
12
burden of production shifts to the proponent of the strike to come forward with a
race-neutral explanation (step two). If a race-neutral explanation is tendered, the
trial court must then decide (step three) whether the opponent of the strike has
proved purposeful racial discrimination. Hernandez v. New York 500 U.S. 352,
358-359 (1991) (plurality opinion); id., at 375 (O’Connor, J., concurring in
judgment); Batson, supra, at 96-98.)” (Purkett v. Elem (1995) 514 U.S. 765, 767
(Purkett).)
The high court in Purkett emphasized that “The second step of this process
does not demand an explanation that is persuasive, or even plausible. ‘At this
[second] step of the inquiry, the issue is the facial validity of the prosecutor’s
explanation. Unless a discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race neutral.’ Hernandez, 500
U.S., at 360 (plurality opinion); id., at 374 (O’Connor, J., concurring in
judgment).” (Purkett, supra, 514 U.S. at pp. 767-768.)
The court went on to explain that the intermediate appellate court in that
case had “erred by combining Batson’s second and third steps into one, requiring
that the justification tendered at the second step be not just neutral but also at least
minimally persuasive, i.e., a ‘plausible’ basis for believing that ‘the person’s
ability to perform his or her duties as a juror’ will be affected. [Citation.] It is not
until the third step that the persuasiveness of the justification becomes relevant—
the step in which the trial court determines whether the opponent of the strike has
carried his burden of proving purposeful discrimination. Batson, supra, at 98;
Hernandez, supra, at 359 (plurality opinion). At that stage, implausible or
fantastic justifications may (and probably will) be found to be pretexts for
purposeful discrimination. But to say that a trial judge may choose to disbelieve a
silly or superstitious reason at step three is quite different from saying that a trial
judge must terminate the inquiry at step two when the race-neutral reason is silly
13
or superstitious. The latter violates the principle that the ultimate burden of
persuasion regarding racial motivation rests with, and never shifts from, the
opponent of the strike. Cf. St. Mary’s Honor Center v. Hicks 509 U.S. 502, 511
(1993).)” (Purkett, supra, 514 U.S. at p. 768.)
The high court in Purkett then pointed to language in Batson that may have
been misconstrued: “The Court of Appeals appears to have seized on our
admonition in Batson that to rebut a prima facie case, the proponent of a strike
‘must give a “clear and reasonably specific” explanation of his “legitimate
reasons” for exercising the challenges,’ Batson, supra, at 98, n. 20 (quoting Texas
Dept. of Community Affairs v. Burdine 450 U.S. 248, 258 (1981)), and that the
reason must be ‘related to the particular case to be tried,’ 476 U.S., at 98.
[Citation.] This warning was meant to refute the notion that a prosecutor could
satisfy his burden of production by merely denying that he had a discriminatory
motive or by merely affirming his good faith. What it means by a ‘legitimate
reason’ is not a reason that makes sense, but a reason that does not deny equal
protection. See Hernandez, supra, at 359; cf. Burdine, supra, at 255 (‘The
explanation provided must be legally sufficient to justify a judgment for the
defendant’).” (Purkett, supra, 514 U.S. at pp. 768-769.)
Thus, the prosecutor’s reason in Purkett for peremptorily excusing the
prospective juror in question—because he had long, unkempt hair, a mustache,
and a beard—was deemed by the high court to be an entirely valid, race-neutral
reason that satisfied the prosecutor’s burden under step two of articulating a
nondiscriminatory reason for the peremptory challenge under scrutiny. The
intermediate appellate court in Purkett had erred because it “did not conclude or
even attempt to conclude that the state court’s finding of no racial motive was not
fairly supported by the record. For its whole focus was upon the reasonableness
of the asserted nonracial motive (which it thought required by step two) rather
14
than the geniuneness of the motive. It gave no proper basis for overturning the
state court’s finding of no racial motive, a finding which turned primarily on an
assessment of credibility, see Batson, 476 U.S., at 98, n. 21.” (Purkett, supra, 514
U.S. at p. 769.)
C. Peremptory Challenges
It is well settled that “[p]eremptory challenges based on counsel’s personal
observations are not improper.” (People v. Perez (1994) 29 Cal.App.4th 1313,
1330, fn. 8 (Perez).) In Wheeler itself we observed, “Indeed, even less tangible
evidence of potential bias may bring forth a peremptory challenge: either party
may feel a mistrust of a juror’s objectivity on no more than the ‘sudden
impressions and unaccountable prejudices we are apt to conceive upon the bare
looks and gestures of another’ (4 Blackstone, Commentaries *353)—upon
entering the box the juror may have smiled at the defendant, for instance, or glared
at him.” (Wheeler, supra, 22 Cal.3d at p. 275.) In People v. Fuentes (1991) 54
Cal.3d 707 (Fuentes), we explained that “nothing in Wheeler disallows reliance on
the prospective jurors’ body language or manner of answering questions as a basis
for rebutting a prima facie case” of exclusion for group bias. (Id. at p. 715.) And
in People v. Johnson (1989) 47 Cal.3d 1194 (Johnson), we observed, “Nowhere
does Wheeler or Batson say that trivial reasons are invalid. What is required are
reasonably specific and neutral explanations that are related to the particular case
being tried.” (Id. at p. 1218.)
In Perez, the prosecutor noted she had personally observed a venireperson
(Torres) “laughing at an inappropriate point during voir dire.” (Perez, supra, 29
Cal.App.4th at p. 1330.) The Perez court explained, “Obviously, we cannot, on
the cold record, verify the prosecutor’s . . . stated reason for challenging Torres.
This is, of course, one reason why appellate courts in this area of law generally
15
give great deference to the trial court, which saw and heard the entire voir dire
proceedings.” (Ibid., fn. omitted.)4
In Fuentes, supra, 54 Cal.3d 707, we observed, “This court and the high
court have professed confidence in trial judges’ ability to determine the
sufficiency of the prosecutor’s explanations [for exercising peremptory
challenges]. In Wheeler, we said that we will ‘rely on the good judgment of the
trial courts to distinguish bona fide reasons for such peremptories from sham
excuses belatedly contrived to avoid admitting acts of group discrimination.’
(Wheeler, supra, 22 Cal.3d at p. 282.) Similarly, the high court stated in Batson v.
Kentucky, supra, that ‘the trial judge’s findings in the context under consideration
here largely will turn on evaluation of credibility,’ and for that reason ‘a reviewing
court ordinarily should give those findings great deference.’ (476 U.S. at p. 98, fn.
21.)” (Fuentes, supra, 54 Cal.3d at p. 714.)
Finally, in Johnson, supra, 47 Cal.3d 1194, we explained, “Trial lawyers
recognize that it is a combination of factors rather than any single one which often
leads to the exercise of a peremptory challenge. In addition, the particular
combination or mix of jurors which a lawyer seeks may, and often does, change as
certain jurors are removed or seated in the jury box. 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
4
“Typically, an appellate court has only a cold transcript, exhibits, and
papers from the trial court’s file to go on. Even when a videotape is available we
cannot experience what the trial judge experienced—the nuances, the inflections,
the body language which traditionally form part of the basis on which credibility is
evaluated by triers of fact. Despite technology, credibility determinations require
a personal presence that a cold transcript cannot convey.” (Abbott v. Mandiola
(1999) 70 Cal.App.4th 676, 682-683 [motion for sanctions should be heard by
judge who observed conduct of party against whom sanctions are sought].)
16
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 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.
“It is also common knowledge among trial lawyers that the same factors
used in evaluating a juror may be given different weight depending on the number
of peremptory challenges the lawyer has at the time of the exercise of the
particular challenge and the number of challenges remaining with the other side.
Near the end of the voir dire process a lawyer will naturally be more cautious
about ‘spending’ his increasingly precious peremptory challenges. Thus at the
beginning of voir dire the lawyer may exercise his challenges freely against a
person who has had a minor adverse police contact and later be more hesitant with
his challenges on that ground for fear that if he exhausts them too soon, he may be
forced to go to trial with a juror who exhibits an even stronger bias. Moreover, as
the number of challenges decreases, a lawyer necessarily evaluates whether the
prospective jurors remaining in the courtroom appear to be better or worse than
those who are seated. If they appear better, he may elect to excuse a previously
passed juror hoping to draw an even better juror from the remaining panel.
“It should be apparent, therefore, that the very dynamics of the jury
selection process make it difficult, if not impossible, on a cold record, to evaluate
or compare the peremptory challenge of one juror with the retention of another
juror which on paper appears to be substantially similar. . . . It is therefore with
good reason that we and the United States Supreme Court give great deference to
17
the trial court’s determination that the use of peremptory challenges was not for an
improper or class bias purpose.” (Johnson, supra, 47 Cal.3d at pp. 1220-1221.)
Johnson reaffirmed that when ruling on a Wheeler motion, the trial court
“must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s
explanation in light of the circumstances of the case as then known, his knowledge
of trial techniques, and his observations of the manner in which the prosecutor has
examined members of the venire and has exercised challenges for cause or
peremptorily. . . .’ (People v. Hall (1983) 35 Cal.3d 161, 167-168.)” (Johnson,
supra, 47 Cal.3d at p. 1216.) But in fulfilling that obligation, the trial court is not
required to make specific or detailed comments for the record to justify every
instance in which a prosecutor’s race-neutral reason for exercising a peremptory
challenge is being accepted by the court as genuine. This is particularly true
where the prosecutor’s race-neutral reason for exercising a peremptory challenge
is based on the prospective juror’s demeanor, or similar intangible factors, while in
the courtroom.
One might have concluded otherwise when reading this court’s opinion in
People v. Trevino (1985) 39 Cal.3d 667 (Trevino), disapproved in Johnson, supra,
47 Cal.3d at pages 1219-1221. “Despite its professed confidence in the ability of
trial judges to distinguish a true case of group discrimination, the majority in
Trevino specifically disallowed reliance on body language and the prospective
juror’s mode of answering questions in rebutting a prima facie case. Wheeler had
given no indication that such subjective reasons were unacceptable . . . . In ruling
out subjective reasons, the majority in Trevino . . . seem[ed] unwilling to trust the
trial courts to conscientiously rule on the adequacy of the proffered explanations.”
(Johnson, supra, 47 Cal.3d at p. 1219.)
Johnson further faulted the majority in Trevino for unreasonably expecting
trial judges to make “detailed comparisons mid-trial” of a prosecutor’s “stated
18
reasons for challenged excusals with similar characteristics of nonmembers of the
group who were not challenged by the prosecutor.” (Johnson, supra, 47 Cal.3d at
p. 1220.) Finding that “Trevino extended Wheeler beyond its logical limits” (id. at
p. 1219, fn. omitted), we concluded in Johnson: “Under the standard of giving
great deference to the trial court’s determination, we affirm the ruling in this case.
The dissent, in our view, unjustly faults the trial court for not making a sincere and
reasoned determination regarding the genuineness of the prosecutor’s reasons.
There is no indication in the record that the court did not do so. The dissent
seems to believe that inquiry by the court is required to demonstrate compliance
with its obligation under Wheeler. We do not read Wheeler or [People v. Hall
(1983) 35 Cal.3d 161] as establishing such a requirement.” (Johnson, supra, 47
Cal.3d at p. 1222, italics added.)
The Court of Appeal in this case acknowledged that the prosecutor’s
demeanor-based reasons for excusing Prospective Juror, Elizabeth G.—that she
was not paying attention to the proceedings and was not involved in the voir dire
process—were not too general or too vague and could validly support the
peremptory excusal of Elizabeth G. if the reasons were shown to be sincere and
genuine. The court further acknowledged that, “a somewhat inattentive
prospective juror would be an appropriate concern, especially in a [murder] case
of this magnitude. These particular reasons, if supported by the record, would be
valid. The critical question becomes whether the record supports this reasoning.”
(Italics added.)
The Court of Appeal, however, went on to conclude that the record on
appeal would not support the prosecutor’s demeanor-based reasons for excusing
Elizabeth G. because “[the trial court] did not respond to or even acknowledge
defendant’s comment that there was nothing in [her] demeanor that would justify
excusing her. Defendant’s statement demonstrated his disagreement with the
19
prosecutor’s assessment that Elizabeth G. was not paying attention and was not
involved in the process. Neither the trial court’s initial comments nor its
subsequent comments contain any particularized assessment of the prosecution’s
justifications.” (Italics added.)
In support of its conclusion that the trial court was required to make a
record that included a “particularized assessment of the prosecution’s
justifications” for peremptorily challenging Elizabeth G., the Court of Appeal
placed principal reliance on our holding in Silva, supra, 25 Cal.4th 345, finding it
controlling here. That reliance was misplaced.
D. Silva
The Wheeler motion in Silva arose in the context of a retrial of the penalty
phase of a capital murder prosecution. “Early in the jury selection process for the
penalty retrial, the prosecutor revealed an acute sensitivity to the presence of
Hispanics on the jury panel and an evident belief that Hispanics would not be
favorable jurors for the prosecution. The first penalty phase had resulted in a hung
jury, with the final vote seven for a sentence of death and five for a sentence of life
imprisonment without parole. Before the penalty retrial, the defense challenged the
jury panels as not providing a fair cross-section of the community, and the
prosecutor said this: ‘I also believe that [defense counsel] has only made a record
on Hispanic surnames and has not included any other races, creeds, or colors such
as black, oriental because the first trial hung up on racial grounds. [Defense
counsel] is well aware that four of the five people in the first trial were Mexican-
Americans or at least had those surnames that voted for life without possibility of
parole. And I believe that [defense counsel] is trying to influence this court, at
this time, so that he gets the same type of a panel he got on the first trial.’ (Italics
added.)
20
“Some days later, the prosecutor again said he believed the hung jury in the
first penalty trial ‘was based on race.’ Eventually the prosecutor explained:
‘When I was speaking to the jurors that voted for life without parole, four of those
jurors were in fact Hispanic . . . [and] one of the Hispanic jurors turned to the only
Hispanic juror who voted for death and said, “You let us down,” meaning “You
are Hispanic. We are Hispanic. We are a group.” And “You let us down because
you didn’t vote for life without parole.” That's what I based my comment on.’
Despite his stated belief that the hung jury during the first penalty trial was
attributable to the racial or ethnic bias of Hispanic jurors, the prosecutor denied
that he would exercise any peremptory challenge ‘on the basis of race, creed or
color.’ But the implausible explanations that the prosecutor later gave for
exercising peremptory challenges to exclude every Hispanic from the jury at the
retrial of penalty raise grave doubts about the sincerity of this statement.” (Silva,
supra, 25 Cal.4th at pp. 375-376.)
The defense in Silva made its first Batson/Wheeler motion to dismiss the
panel and begin jury selection anew after the prosecutor had exercised peremptory
challenges against three prospective jurors with Hispanic ancestry or surnames.
The trial court found a prima facie case and asked the prosecutor to explain the
reasons for the challenges. During the brief hearing, at which the prosecutor gave
his reasons for exercising the three challenges, “the trial court did not ask the
prosecutor any questions and did not remark on any discrepancies between the
prosecutor’s stated reasons and the prospective jurors’ responses on voir dire or on
their questionnaires. When proceedings resumed in the presence of defendant and
defense counsel, the trial court denied the first Batson/Wheeler motion. The court
said only that the prosecutor ‘did provide an explanation with regard to’ the three
peremptory challenges and that ‘I think that there was a good excuse with regard
to all of these people.’ ” (Silva, supra, 25 Cal.4th at p. 382.)
21
As the penalty phase jury voir dire proceeded in Silva, the defense renewed
its Batson/Wheeler motion after the prosecutor had exercised peremptory
challenges against two more Hispanic prospective jurors. Once again, the trial
court required the prosecutor to give his reasons for the challenges. (Silva, supra,
25 Cal.4th at pp. 382-383.) The transcript of that second hearing comprised a
single page. Again the trial court failed to question the prosecutor “or remark on
the apparent disparity between [his] stated reasons and what the record shows to
have occurred during voir dire. When proceedings resumed in the presence of
defendant and defense counsel, the court said only this: ‘I did hear the
explanations presented by the prosecutor with regard to peremptory challenges
exercised against Rosalinda [R.] and Ernestina [R.], and they appear to be very
valid reasons for those excuses.’ As a result of the prosecutor’s peremptory
challenges and the trial court’s rulings, no Hispanic served on the jury that
returned the verdict selecting the penalty of death.” (Id. at p. 383.)
On appeal, the defendant in Silva challenged the denial of his
Batson/Wheeler motion. We focused in particular on the voir dire of one
prospective juror, Jose M. We reviewed the record of the voir dire proceedings
and found that the prosecutor’s reasons for peremptorily excusing Jose M. were
contradicted by the record. We then explained, “[W]e agree with defendant that
the court erred in denying the motion as to Prospective Juror Jose M. Nothing in
the transcript of voir dire supports the prosecutor’s assertions that M. would be
reluctant to return a death verdict or that he was ‘an extremely aggressive
person.’. . . [H]ere, the record of voir dire provides no support for the prosecutor’s
stated reasons for exercising a peremptory challenge against M., and the trial court
has failed to probe the issue [citations]. We find nothing in the trial court’s
remarks indicating it was aware of, or attached any significance to, the obvious
gap between the prosecutor’s claimed reasons for exercising a peremptory
22
challenge against M. and the facts as disclosed by the transcripts of M.’s voir dire
responses. On this record, we are unable to conclude that the trial court met its
obligations to make ‘a sincere and reasoned attempt to evaluate the prosecutor’s
explanation’ (People v. Hall (1983) 35 Cal.3d 161, 167-168) and to clearly
express its findings (People v. Fuentes (1991) 54 Cal.3d 707, 716, fn. 5).” (Silva,
supra, 25 Cal.4th at p. 385.)
We concluded in Silva that “the trial court’s ultimate determination—that
defendant failed to meet his burden of proving intentional discrimination with
respect to the prosecutor’s peremptory challenge of Prospective Juror M.—is
unreasonable in light of the evidence of the voir dire proceedings. Although we
generally ‘accord great deference to the trial court’s ruling that a particular reason
is genuine,’ we do so only when the trial court has made a sincere and reasoned
attempt to evaluate each stated reason as applied to each challenged juror.
[Citations.] When the prosecutor’s stated reasons are both inherently plausible
and supported by the record, the trial court need not question the prosecutor or
make detailed findings. But when the prosecutor’s stated reasons are either
unsupported by the record, inherently implausible, or both, more is required of the
trial court than a global finding that the reasons appear sufficient. As to
Prospective Juror M., both of the prosecutor’s stated reasons were factually
unsupported by the record. Because the trial court’s ultimate finding is
unsupported—at least as to Prospective Juror M.—we conclude that defendant
was denied the right to a fair penalty trial in violation of the equal protection
clause of the federal Constitution (Batson v. Kentucky, supra, 476 U.S. 79, 84-89)
and was denied his right under the state Constitution to a trial by a jury drawn
from a representative cross-section of the community (People v. Wheeler, supra,
22 Cal.3d 258, 276-277).” (Silva, supra, 25 Cal.4th at pp. 385-386.)
23
E. The Peremptory Challenge of Elizabeth G.
Returning to the facts of this case, we agree with the observation of the
Court of Appeal below that “[t]he reasons given by the prosecutor in Silva, supra,
25 Cal.4th 345, were contradicted by the record and were thus implausible and
unsupported by the record.” In that regard, the Court of Appeal read Silva right.
We further agree with the Court of Appeal’s observation that here, in contrast,
“the record does not contradict the reasons given [by the prosecutor in this case.]”
But we cannot agree with the Court of Appeal’s further conclusion that, under our
holding in Silva, the record on appeal in this case does not support the prosecutor’s
stated reasons for exercising a peremptory challenge against Elizabeth G.,5 or the
trial court’s express determination that those reasons were sincere and genuine. It
was not this court’s intention that the holding in Silva should be so expansively
applied to cases with facts as different from Silva’s as those now before us.
Here, the prosecutor first indicated, in response to the finding of a prima
facie case below, that he had excused Elizabeth G. because she was a customer
service representative, and that “[i]n terms of that, we felt that she did not have
enough educational experience.” The Court of Appeal concluded that this reason
“was not supported by the record and lacked any content related to the case being
tried.”
The proper focus of a Batson/Wheeler inquiry, of course, is on the
subjective genuineness of the race-neutral reasons given for the peremptory
5
The genuineness of the prosecutor’s peremptory challenge to the second
Hispanic Prospective Juror Mary L., was accepted by the Court of Appeal and did
not appear to play a part in the reversals below: “In contrast [to Elizabeth G.’s
excusal,] the prosecutor’s reasons for excluding [Mary L.] [she was a counselor
for at-risk youth and would have undue sympathy for both defendants because
they are young and at risk] included ‘a neutral explanation related to the particular
case to be tried.’ (Batson v. Kentucky (1986) 476 U.S. 79, 98.)”
24
challenge, not on the objective reasonableness of those reasons. (Purkett, supra,
514 U.S. at p. 769.) So, for example, if a prosecutor believes a prospective juror
with long, unkempt hair, a mustache, and a beard, would not make a good juror in
the case, a peremptory challenge to the prospective juror, sincerely exercised on
that basis, will constitute an entirely valid and nondiscriminatory reason for
exercising the challenge. (Ibid.) It matters not that another prosecutor would have
chosen to leave the prospective juror on the jury. Nor does it matter that the
prosecutor, by peremptorily excusing men with long unkempt hair and facial hair
on the basis that they are specifically biased against him or against the People’s
case or witnesses, may be passing over any number of conscientious and fully-
qualified potential jurors. All that matters is that the prosecutor’s reason for
exercising the peremptory challenge is sincere and legitimate, legitimate in the
sense of being nondiscriminatory. “[A] ‘legitimate reason’ is not a reason that
makes sense, but a reason that does not deny equal protection. [Citations.].”
(Purkett, supra, 514 U.S. at p. 769.)
We acknowledge that, when viewed objectively, the notion that all persons
employed as customer service representatives would have insufficient
“educational experience” to effectively serve on juries is of questionable
persuasiveness. But the proper function of the reviewing court in a case such as
this is not to objectively validate or invalidate such a broadly stated premise. The
proper function on review in this case was to determine whether the trial court’s
conclusion—that the prosecutor’s subjective race-neutral reasons for exercising
the peremptory challenges at issue here were sincere, and that the defendants
failed to sustain their burden of showing “from all the circumstances of the case”
(Wheeler, supra, 22 Cal.3d at p. 280) a strong likelihood that the peremptory
challenges in question were exercised on improper grounds of group bias—is
25
supported by the record when considered under the applicable deferential standard
of review.
Here, at a bare minimum, Elizabeth G.’s occupation as a customer service
representative was confirmed by her answers to the general questions, as were the
additional circumstances that she had no prior jury experience and no past contact
with the criminal justice system in any capacity. If a prosecutor can lawfully
peremptorily excuse a potential juror based on a hunch or suspicion, or because he
does not like the potential juror’s hairstyle, or because he observed the potential
juror glare at him, or smile at the defendant or defense counsel, then surely he can
challenge a potential juror whose occupation, in the prosecutor’s subjective
estimation, would not render him or her the best type of juror to sit on the case for
which the jury is being selected.6 As the Court of Appeal itself observed, this was
a murder case, with two codefendants whose roles in the criminal episode were
distinct. A prosecutor arguably could conclude in sincerity that a prospective juror
employed in customer service, with no prior jury experience, no prior contact with
the criminal justice system, and who further appeared to be inattentive and
uninvolved in the jury selection process, would not be the best type of juror for the
case. Such a determination might further be supported by a myriad of factors
readily observable by those present in the courtroom, but not by those who are
reviewing the case from the cold transcribed record on appeal.
6
Indeed, an attorney could peremptorily excuse a potential juror because he
or she feels the potential juror’s occupation reflects too much education, and that a
juror with that particularly high a level of education would likely be specifically
biased against their witnesses, or their client’s position in the case. As long as
such a peremptory challenge was nondiscriminatory and “legitimate” in the sense
that it does not deny equal protection of the law (Purkett, supra, 514 U.S. at
p. 769), it would be lawful and valid.
26
The trial court was obligated to evaluate “all the circumstances of the case”
in the step three evaluation of whether the prosecutor’s race-neutral reasons for
peremptorily excusing Hispanic potential jurors Mary L. and Elizabeth G. were
sincere and credible, or whether the defendants instead had sustained their burden
of proving unlawful discriminatory intent in the exercise of the peremptory
challenges. (Wheeler, supra, 22 Cal.3d at p. 280.) With regard to the first reason
given in justification of the peremptory challenge of Elizabeth G., the question for
the trial court was not whether, objectively speaking, all customer service
representatives lack sufficient “educational experience” to sit on a jury (a dubious
notion when viewed in isolation) or even whether, subjectively speaking,
Elizabeth G., who was employed as a customer service representative, herself had
insufficient “educational experience” to sit on the jury. The question for the trial
court was this: was the reason given for the peremptory challenge a “legitimate
reason,” legitimate in the sense that it would not deny defendants equal protection
of law (see Purkett, supra, 514 U.S. at p. 769), or was it a disingenuous reason for
a peremptory challenge that was in actuality exercised solely on grounds of group
bias?
The prosecutor also gave as his second, demeanor-based reason for
excusing Elizabeth G., that it appeared to him she was not paying attention to the
proceedings, and that he felt she was not sufficiently involved in the jury selection
process to make a good juror. Here again, at a bare minimum, the record of
Elizabeth G.’s answers to the questions posed to all the prospective jurors reflects
that she had no prior jury experience and no prior contact with the criminal justice
system in any capacity. Unlike the reasons given by the prosecutor in Silva, the
prosecutor’s reasons given in this case for peremptorily excusing Elizabeth G.
were neither inherently implausible, nor affirmatively contradicted by anything in
the record.
27
The Court of Appeal focused, in particular, on this second, demeanor-based
justification given for the excusal of Elizabeth G., and found it significant that the
trial court made no attempt to clarify or probe the prosecutor’s reasons for finding
Elizabeth G.’s demeanor while in the jury box unsuited to jury service. But the
trial court did expressly accept the prosecutor’s race-neutral reasons for the
peremptory challenge to Elizabeth G., finding them sincere and genuine. Since
the trial court was in the best position to observe the prospective jurors’ demeanor
and the manner in which the prosecutor exercised his peremptory challenges, the
implied finding, that the prosecutor’s reasons for excusing Elizabeth G., including
the demeanor-based reason, were sincere and genuine, is entitled to “great
deference” on appeal. (Batson, supra, 476 U.S. at p. 98, fn. 21; Johnson, supra,
47 Cal.3d at p. 1221.) Nor have we found anything in the record to directly
contradict the trial court’s express findings to that effect, in contrast to the facts of
Silva. To the contrary, the prosecutor passed and accepted the jury 14 times with
Elizabeth G. seated in the jury box (on four of those occasions, a second Hispanic
propsective juror, Carolyn G., was also seated on the jury when the prosecutor
passed and accepted it). Although not a conclusive factor, “the passing of certain
jurors may be an indication of the prosecutor’s good faith in exercising his
peremptories, and may be an appropriate factor for the trial judge to consider in
ruling on a Wheeler objection . . . .” (People v. Snow (1987) 44 Cal.3d 216, 225.)
If the prosecutor’s occupation- and demeanor-based reasons for excusing
Elizabeth G. were indeed pretextual, and he was in actuality bent on removing her
from the jury because of her Hispanic ancestry,7 his acceptance of the jury 14
7
Recently, in People v. Johnson, supra, 30 Cal.4th at page 1326, a majority
of this court reached the following conclusion with regard to a Wheeler claim:
“Defendant stresses that the district attorney used three of his 12 peremptory
challenges to remove all three African-American prospective jurors, and this case
involves an African-American defendant charged with killing ‘his White
28
times with Elizabeth G. seated in the jury box, on four such occasions with a
second Hispanic prospective juror also seated on the jury, was hardly the most
failsafe or effective way to effectuate that unconstitutional discriminatory intent.
Finally, the Court of Appeal reasoned that “in rejecting defendant’s
argument, rather than focusing on the question of validity of the People’s
justifications, the trial court attempted to buttress its finding by analyzing a
Hispanic juror [Carolyn G.] not challenged by the People, but excused by the
defense.” The Court of Appeal concluded that “the [trial] court erred when, for
whatever reason, it commented on the fact that the defense itself had challenged a
Hispanic prospective juror ([Carolyn G.]).” (Italics added.)
It is of course settled that “the propriety of the prosecutor’s peremptory
challenges must be determined without regard to the validity of defendant’s own
challenges.” (People v. Snow, supra, 44 Cal.3d at p. 225; Wheeler, supra, 22
Cal.3d at p. 283, fn. 30.) But we read this record differently than did the Court of
Appeal, and differently than does dissenting Justice Kennard, who finds the trial
judge’s remarks to have been a “pointless digression.” (Dis. opn. of Kennard, J.,
post, at p. 6.) Instead, we find that the trial court did not transgress the holding in
girlfriend’s child.’ These circumstances are obviously highly relevant to whether
a prima facie case existed. (Wheeler, supra, 22 Cal.3d at pp. 280-281.) They
definitely warranted the trial court’s careful scrutiny, which that court gave. The
court considered the question close but found no prima facie case under all the
circumstances. We will not second-guess its determination . . . .”
Here, in contrast, both the defendants and the murder victim were of
Hispanic ancestry, a circumstance that might be viewed as neutralizing any
suspected untoward belief on the prosecutor’s part that Hispanic jurors would tend
to be biased in favor of, and thereby be more inclined to vote to acquit, the
Hispanic defendants.
29
Snow when commenting that defendants themselves had peremptorily excused a
Hispanic prospective juror, Carolyn G.8
The relevant segment of the record is quoted above. (Ante, pp. 7-8.)
Defendant Julian Reynoso’s counsel urged the court to conclude that because the
prosecution would be expected to want a juror with law enforcement contacts to
serve on the jury, the peremptory excusal of Elizabeth G., who had a friend in the
Porterville Police Department and a brother who worked for the Department of
Corrections, must have been motivated by improper racial or group bias. The trial
court responded that Prospective Juror Carolyn G. likewise had law enforcement
contacts ( a brother-in-law in the Merced Police Department) and was not
peremptorily challenged by the prosecutor, even though she was also of Hispanic
ancestry. It is true that Carolyn G. was ultimately excused by the defense, but that
was not the court’s focus. The court’s point was simply this: if defense counsel’s
8
Justice Kennard also assails the trial court for using the term “systematic
exclusion” in denying the Batson/Wheeler motion, suggesting the court thereby
applied a wrong or outdated standard. (Dis. opn. of Kennard, J., post, at pp. 6-7.)
Not so. Since the day the seminal decisions in Wheeler and Batson were each
decided, it has been clearly understood that the unconstitutional exclusion of even
a single juror on improper grounds of racial or group bias requires the
commencement of jury selection anew, or reversal of the judgment where such
error is established on appeal. (Batson, supra, 476 U.S. at p. 95 [equal protection
clause]; Wheeler, supra, 22 Cal.3d at p. 282 [Cal. Const. right to trial by
representative jury].) We long ago observed that although the well-worn phrase
“systematic exclusion” is somewhat of a misnomer when used to describe a
discriminatory use of peremptory challenges (since a single discriminatory and
therefore unconstitutional exclusion will constitute Wheeler error), this and other
courts have used and understood that term as an acceptable shorthand phrase for
denoting Wheeler error. (People v. Fuentes, supra, 54 Cal.3d at p. 716, fn. 4.)
That observation having been made by this court nearly 13 years ago in Fuentes, it
hardly seems fair or appropriate to fault this trial judge for using the term once in
passing when denying the Batson/Wheeler motion, much less to conclude that a
wrong standard was applied in ruling on the motion.
30
threshold premise was true, then the prosecutor, consistent with that premise, had
indeed not excused Carolyn G. given her favorable law enforcement contacts,
notwithstanding her Hispanic ancestry. In context, the point the trial court was
obviously trying to make was that the prosector did seek to retain jurors with law
enforcement contacts who would normally be deemed favorable to the
prosecution, including Carolyn G., who was Hispanic. By parity of reasoning, one
might expect the prosecutor to have likewise sought to retain Prospective Juror
Elizabeth G. who, like Carolyn G., had such favorable law enforcement contacts,
notwithstanding her Hispanic ancestry, and that Elizabeth G. would have been
retained were it not for the other reasons of specific bias which the prosecutor
indicated had in fact motivated him to excuse her (her perceived lack of
“educational experience” given her occupation, coupled with her apparent
inattentiveness and lack of involvement in the jury selection proceedings).
We are confident the trial court’s intended point was not that the defense
had also excused Carolyn G., a Hispanic prospective juror, which might constitute
error under People v. Snow, supra, 44 Cal.3d at p. 225, but rather that the
prosecutor had not sought to peremptorily challenge her. That circumstance,
when scrutinized under the premise defense counsel was arguing to the court,
would suggest there was nothing inconsistent in the prosecutor’s treatment of
Hispanic Prospective Jurors Elizabeth G. and Carolyn G., and would support the
inference that the prosecutor’s race-neutral reasons for challenging Elizabeth G.
were sincere. Perhaps not the most artfully stated point, but in context, the trial
court’s intended point is clear enough. Under a fair reading of the record, the trial
court did not attempt to refute the defense Batson/Wheeler motion by urging that
the defense itself committed Batson/Wheeler error.9
9
Our dissenting colleagues urge that it cannot be known with certainty
whether the prosecutor would in fact not have peremptorily challenged Hispanic
31
We are mindful that in Fuentes, supra, 54 Cal.3d 707, we “reemphasize[d]
the trial court’s role in making an adequate record when dealing with a Wheeler
motion. Notwithstanding the deference we give to a trial court’s determinations of
credibility and sincerity, we can only do so when the court has clearly expressed
its findings and rulings and the bases therefor.” (Id. at p. 716, fn. 5.) But neither
Fuentes nor Silva requires a trial court to make explicit and detailed findings for
the record in every instance in which the court determines to credit a prosecutor’s
demeanor-based reasons for exercising a peremptory challenge. The
impracticality of requiring a trial judge to take note for the record of each
prospective juror’s demeanor with respect to his or her ongoing contacts with the
prosecutor during voir dire is self-evident.
Where, as here, the trial court is fully apprised of the nature of the defense
challenge to the prosecutor’s exercise of a particular peremptory challenge, where
Prospective Juror Carolyn G., had the defense not itself first peremptorily excused
her. The point merely echoes the Court of Appeal’s inappropriate speculation
when that court noted that “[w]hether the People would have challenged
[Carolyn G.] cannot be known because she was eliminated from the jury pool by
the defense and at the time the Wheeler motion was made there were no Hispanic
jurors remaining.” An appellate court’s proper role in reviewing a Batson/Wheeler
claim is not to engage in speculation, but to instead draw appropriate inferences
from the record under the deferential standard made applicable by this court in
Wheeler, and by the high court in Batson. What is clearly established by this
record is that the prosecutor passed and accepted the jury with Carolyn G. seated
in the jury box four times before the defense elected to peremptorily excuse her.
The record lends no support to the insinuation that the prosecutor “might” have
challenged Hispanic Prospective Juror Carolyn G., had the defense not first done
so. It does unequivocally establish that the prosecutor repeatedly passed and
accepted the jury in this case with each of the three Hispanic propsective jurors in
question seated in the jury box, and on four occasions, passed and accepted the
jury with both Hispanic Prospective Jurors Elizabeth G. and Carolyn G. seated on
the jury. That state of the record in turn lends support to an inference that the
prosecutor in this case was not exercising his peremptory challenges on the sole
and improper ground of group bias. (People v. Snow, supra, 44 Cal.3d at p. 225.)
32
the prosecutor’s reasons for excusing the juror are neither contradicted by the
record nor inherently implausible (Silva, supra, 25 Cal.4th at p. 386), and where
nothing in the record is in conflict with the usual presumptions to be drawn, i.e.,
that all peremptory challenges have been exercised in a constitutional manner, and
that the trial court has properly made a sincere and reasoned evaluation of the
prosecutor’s reasons for exercising his peremptory challenges, then those
presumptions may be relied upon, and a Batson/Wheeler motion denied,
notwithstanding that the record does not contain detailed findings regarding the
reasons for the exercise of each such peremptory challenge.
Having considered all the circumstances of this case (Wheeler, supra, 22
Cal.3d at p. 280), we find nothing in the record to contradict the trial court’s
determination that no Wheeler error occurred, nor any reason to deviate from the
customary “great deference” normally afforded such rulings. (Batson, supra, 476
U.S. at p. 98, fn. 21.)
III. CONCLUSION
The judgments of the Court of Appeal are reversed and these matters
remanded to that court for further proceedings consistent with the views expressed
herein.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
CHIN, J.
BROWN, J.
33
DISSENTING OPINION BY KENNARD, J.
I dissent. I would affirm the Court of Appeal’s judgment, which found that
the trial court committed reversible error when it denied a defense motion
asserting that the prosecutor engaged in purposeful discrimination when he used
peremptory challenges to strike two Hispanic women from the jury. The Court of
Appeal concluded that the trial court’s ruling violated both the federal Constitution
as construed by the United States Supreme Court in Batson v. Kentucky (1986)
476 U.S. 79 (Batson) and the California Constitution as construed by this court in
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
The majority’s decision reversing the Court of Appeal undermines the right
of Hispanics to sit on juries in California state courts and the right of criminal
defendants to jury-selection procedures free of purposeful discrimination against
Hispanic prospective jurors. Here, the prosecutor said he struck a Hispanic
woman from the jury because she was insufficiently educated and because she was
not paying attention. Although the defense disputed both of these factual
assertions, the trial court denied the defendants’ Batson/Wheeler motion without
questioning the prosecutor, without making particularized findings, and by
misstating the proper legal standard. Brushing all this aside, the majority indulges
a presumption that both the prosecutor and the trial court acted properly, thereby
adopting a standard of appellate review that effectively insulates discriminatory
1
strikes from meaningful scrutiny at both the trial and appellate stages. For the
reasons that follow, I disagree.
The use of peremptory challenges to eliminate prospective jurors because
of group bias—that is, bias based on the juror’s race, gender, ethnic background,
or similar cognizable characteristic—is prohibited by the federal Constitution
(Powers v. Ohio (1991) 499 U.S. 400, 409; Batson, supra, 476 U.S. at p. 89) and
by the California Constitution (Wheeler, supra, 22 Cal.3d at pp. 276–277). A
defendant claiming a prosecutor has exercised peremptory challenges because of
group bias must make a timely objection and establish a prima facie case of
prohibited discrimination. (People v. McDermott (2002) 28 Cal.4th 946, 969.)
The United States Supreme Court has explained the three-step procedure a
trial court must follow in ruling on a Batson motion: “[O]nce the opponent of a
peremptory challenge has made out a prima facie case of racial discrimination
(step one), the burden of production shifts to the proponent of the strike to come
forward with a race-neutral explanation (step two). If a race-neutral explanation is
tendered, the trial court must then decide (step three) whether the opponent of the
strike has proved purposeful racial discrimination.” (Purkett v. Elem (1995) 514
U.S. 765, 767.)
Here, in step one, the trial court found that the defense had made a prima
facie case of improper discrimination, and the court asked the prosecutor to
explain his peremptory challenges against the two Hispanic jurors. In step two,
the prosecutor said he excused one of them, Elizabeth G., “because she was [a]
customer service representative” and “[i]n terms of that, we felt she did not have
enough educational experience” and because “it seemed like she was not paying
attention to the proceedings and the People felt that she was not involved in the
process.” These reasons are facially neutral as to Hispanic ancestry, as the trial
2
court recognized by saying: “I accept those reasons as being not based upon race
or ethnicity.”
The issue here concerns step three, whether the defense “proved purposeful
racial discrimination.” (Purkett v. Elem, supra, 514 U.S. at p. 767.) As the United
States Supreme Court has said, “the critical question in determining whether a
[party] has proved purposeful discrimination at step three is the persuasiveness of
the prosecutor’s justification for his peremptory strike.” (Miller-El v. Cockrell
(2003) 537 U.S. 322, ___ [123 S.Ct. 1029, 1040]; see also People v. Alvarez
(1996) 14 Cal.4th 155, 196 [stating that the issue is “whether the prosecutor acted
with the prohibited intent,” which in turn depends on “whether the prosecutor’s
customary denial of such intent is true”].) The high court added that, “[a]t this
stage, ‘implausible or fantastic justifications may (and probably will) be found to
be pretexts for purposeful discrimination.’ ” (Miller-El v. Cockrell, supra, at
p. ___ [123 S.Ct. at p. 1040].)
As the majority admits, the prosecutor’s explanation that he challenged
Elizabeth G. because her occupation as a sales representative showed inadequate
education is “of questionable persuasiveness” (maj. opn., ante, at p. 25) and “a
dubious notion” (id. at p. 27). But the majority refuses to acknowledge that by
offering this implausible justification, the prosecutor triggered specific duties that
this court has imposed on trial courts: first, to question the prosecutor to
determine whether the offered justification, though implausible, was genuine
rather than a pretext for purposeful discrimination, and, second, to make
particularized findings resolving this credibility issue.
As this court explained in People v. Fuentes (1991) 54 Cal.3d 707
(Fuentes) and reemphasized in People v. Silva (2001) 25 Cal.4th 345 (Silva), a
trial court, when it rules on a Batson/Wheeler motion, must make a sincere and
reasoned effort to evaluate the credibility of a prosecutor’s explanation for using
3
peremptory challenges against prospective jurors of a particular race or other
cognizable group (Silva, supra, at p. 386; Fuentes, supra, at p. 720), and the trial
court should make express, particularized findings as to each juror that the
prosecutor has challenged and each reason that the prosecutor has offered (Silva,
supra, at pp. 385-386; Fuentes, supra, at p. 716, fn. 5). When the trial court has
not conducted any inquiry and has not made any particularized findings, but the
prosecutor’s explanations are both plausible and supported by the record, this
court has not found reversible error in the denial of the defense motion. (Silva,
supra, at p. 386.) But when, as here, the prosecutor has given a highly implausible
reason for striking a prospective juror, and the trial court has not conducted any
meaningful inquiry or made any particularized findings, an appellate court cannot
indulge a presumption, belied by the record, that the trial court discharged its duty
to make a sincere and reasoned effort to evaluate the credibility of the prosecutor’s
explanation. (See Silva, supra, at p. 386.) In this situation, as the Court of Appeal
correctly held, an appellate court must treat the unexplained denial of the defense
motion as reversible error.
The prosecutor’s second reason for striking Elizabeth G.—that she was not
paying attention—is equally problematic. As the Court of Appeal correctly
observed, and as the majority does not dispute, nothing in Elizabeth G.’s
responses, nor anything else in the appellate record, indicated she was not paying
attention. Of course, her demeanor could have conveyed the impression that she
was not paying attention, and body language of that sort can be a proper basis for
peremptory challenge. (Fuentes, supra, 54 Cal.3d at pp. 714-715.) But in the trial
court the defense directly challenged the prosecutor’s assertion, saying “[t]here
was nothing in her responses or her demeanor that justif[ied] just excusing her
. . . .” This contrary assertion created a factual dispute for the trial court to
resolve. The court could easily have done so by saying whether its own
4
observations of Elizabeth G. confirmed or refuted the prosecutor’s claim that she
had not been paying attention. But the trial court did not resolve the dispute in this
way, nor did the court question the prosecutor to determine, if possible, what
particular aspect of Elizabeth G.’s demeanor may have caused the prosecutor to
conclude, if he actually did, that she was not paying attention.
Rather than resolving the factual dispute by an express finding or by a
focused inquiry, the trial court attempted to respond to another aspect of the
defense argument. Defense counsel had asserted that because Elizabeth G. had
ties to persons in law enforcement (specifically, friends in the Porterville Police
Department and a brother who worked for the California Department of
Corrections), she had characteristics normally considered favorable to the
prosecution. Noting that the defense itself had exercised a peremptory challenge
against a Hispanic juror named Carolyn G., the trial court addressed defense
counsel with these words: “[Y]ou argued that even a person who the People
should want to have on, namely law enforcement background may still kick off
because of being Hispanic. I’m just pointing out that [Carolyn G.] was another
person that is Hispanic background but they did not kick off and I believe her
background was that she had been the one who had been kidnapped.”
The majority asserts: “We are confident the trial court’s intended point was
not that the defense had also excused Carolyn G., a Hispanic prospective juror,
which might constitute error under People v. Snow [(1987)] 44 Cal.3d [216,] 225,
but rather that the prosecutor had not sought to peremptorily challenge her.”
(Maj. opn., ante, at p. 31.) But there was no way to determine whether the
prosecutor would have challenged Carolyn G. had the defense not done so first,
and also, as defense counsel tried to explain, the prosecutor could have thought
that Carolyn G.’s experience as a crime victim would make her favor the
prosecution, thus outweighing what the prosecutor may have viewed as the
5
undesirable fact of her Hispanic heritage. Thus, the discussion about Prospective
Juror Carolyn G. did nothing to address the central issue before the trial court,
which was the credibility of the reasons the prosecutor had given for striking
Elizabeth G. The trial court’s willingness to engage in this pointless digression
can only undermine an appellate court’s confidence that the trial court understood
and discharged its duty.
Here again, an appellate court cannot indulge a presumption, belied by the
record, that the trial court discharged its duty to make a sincere and reasoned effort
to evaluate the credibility of the prosecutor’s explanation. (See Silva, supra, 25
Cal.4th at p. 386.)
Another of the trial court’s comments supplies yet another reason not to
presume that the court correctly applied the teachings of this court and the United
States Supreme Court. In denying the defense Batson/Wheeler motion, the trial
court said: “I don’t find that there has been a violation of Wheeler and that the—
there was not a systematic exclusion of a recognized ethnic group, i.e., Hispanics
in this case.” (Italics added.)
But as this court has explained, a showing of systematic exclusion is not
required to establish a Batson/Wheeler violation. “California law makes clear that
a constitutional violation may arise even when only one of several members of a
‘cognizable’ group was improperly excluded.” (People v. Montiel (1993) 5
Cal.4th 877, 909, citing Fuentes, supra, 54 Cal.3d at pp. 714-715, fn. 4.)
Accordingly, “a Wheeler violation does not require ‘systematic’ discrimination.”
(People v. Arias (1996) 13 Cal.4th 92, 136.)
The United States Supreme Court has also expressly rejected the notion that
the defense must show systematic exclusion to establish a claim that the
prosecution has purposefully discriminated in the exercise of peremptory
challenges. In Batson, supra, 476 U.S. 79, the high court overruled its decision in
6
Swain v. Alabama (1965) 380 U.S. 202, which had required a defendant to prove
systematic discrimination in the sense of repeated exclusion of all members of a
minority race in case after case. (Batson, supra, at p. 100, fn. 25.) In Batson, the
court characterized this as a “crippling burden of proof” that made peremptory
challenges by the prosecution “largely immune from constitutional scrutiny.”
(Batson, supra, at pp. 92-93.) Rejecting that approach, the court announced that
“ ‘[a] single invidiously discriminatory governmental act’ is not ‘immunized by
the absence of such discrimination in the making of other comparable decisions.’ ”
(Id. at p. 95.) Thus, under Batson as under Wheeler, purposeful discrimination in
the exercise of a single peremptory challenge is sufficient to establish a
constitutional violation requiring reversal of a judgment based on a verdict of the
improperly selected jury. (Silva, supra, 25 Cal.4th at p. 386.)
Here, the trial court’s invocation of the long-abandoned “systematic
exclusion” standard raises serious doubts that the trial court correctly understood
and applied the analysis required by Batson, supra, 476 U.S. 79, and Wheeler,
supra, 22 Cal.3d 258. The court’s apparent reliance on this repudiated standard
may explain its digression concerning Carolyn G. The court may well have
reasoned that because the prosecution had not challenged all Hispanic jurors
(although the jury ultimately selected included none), the defense had failed to
establish systematic exclusion, and the court may have denied the motion on this
erroneous reasoning.
Citing a footnote in Fuentes, the majority asserts that, in the
Batson/Wheeler context, the term “systematic exclusion,” although “somewhat of
a misnomer,” is “an acceptable shorthand phrase for denoting Wheeler error.”
(Maj. opn., ante, at p. 30, fn. 8.) Fuentes says nothing of the sort. What this court
said was that “[t]he term [systematic exclusion] is not apposite in the Wheeler
context, for a single discriminatory exclusion may violate a defendant’s right to a
7
representative jury.” (Fuentes, supra, 54 Cal.3d at p. 716, fn. 4.) In other words,
the term “systematic exclusion,” far from being acceptable, is wrong and
misleading, and this court disapproved its use in this context. In the 12 years since
Fuentes, this court has never used the term “systematic exclusion” to describe the
step three Batson/Wheeler inquiry. Nonetheless, trial courts and at least one Court
of Appeal still use this inapposite term and, by this usage, are led to a mistaken
understanding of the issue at stake. (See, e.g., People v. Robinson (July 28, 2003,
B149425) 110 Cal.App.4th ___, ___ [2003 WL 21733012] [erroneously stating
that “[a] Wheeler motion challenges the selection of a jury, not the rejection of an
individual juror; the issue is whether a pattern of systematic exclusion exists”].)
The record shows that the trial court here made the very same, very basic mistake.
The majority relies on the general rule that reviewing courts give great
deference to a trial court’s findings when ruling on a Batson/Wheeler motion
because those findings “largely will turn on evaluation of credibility.” (Batson,
supra, 476 U.S. at p. 98, fn. 21.) But a trial court’s credibility determination is
entitled to deference only if the court made a sincere and reasoned effort to
evaluate each stated justification as applied to each challenged juror. (People v.
McDermott, supra, 28 Cal.4th at p. 970; People v. Jackson (1996) 13 Cal.4th
1164, 1197; People v. Montiel, supra, 5 Cal.4th at p. 909.) Appellate deference is
unwarranted where, as here, the appellate record supplies many reasons to doubt
that the trial court even made a credibility determination, much less a
determination resulting from a sincere and reasoned effort. (People v. Tapia
(1994) 25 Cal.App.4th 984, 1016-1017.) To summarize, the prosecutor’s reasons
were inherently implausible (insufficient education) and disputed and unverifiable
(inattention), yet the trial court (1) did not question the prosecutor or make any
other relevant inquiry, (2) made no express findings relevant to credibility,
8
(3) engaged in a pointless digression about a defense peremptory challenge, and
(4) couched its ruling in terms of the repudiated “systematic exclusion” standard.
Both this court and the United States Supreme Court have established
safeguards to prevent parties from using peremptory challenges to remove
prospective jurors on the basis of group bias—that is, bias based on the juror’s
race, gender, ethnic background, or similar cognizable characteristic. These
safeguards include procedures at both the trial and appellate level. The majority’s
holding here substantially weakens these safeguards and misapplies controlling
precedent. Therefore, I dissent.
KENNARD,
J.
WE CONCUR:
WERDEGAR, J.
MORENO, J.
9
DISSENTING OPINION BY MORENO, J.
“[R]acial discrimination in the selection of jurors ‘casts doubt on the
integrity of the judicial process,’ [citation] and places the fairness of a criminal
proceeding in doubt. [¶] The jury acts as a vital check against the wrongful
exercise of power by the State and its prosecutors. [Citation.] The intrusion of
racial discrimination into the jury selection process damages both the fact and the
perception of this guarantee. ‘Jury selection is the primary means by which a
court may enforce a defendant’s right to be tried by a jury free from ethnic, racial,
or political prejudice . . . .’ ” (Powers v. Ohio (1991) 499 U.S. 400, 411.) “The
diverse and representative character of the jury must be maintained . . . .” (J.E.B.
v. Alabama (1994) 511 U.S. 127, 134.) Because today’s majority opinion shelters
a prosecutor’s pretextual peremptory challenge of a Hispanic juror from further
inquiry by the trial court, I dissent.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson) requires a three-step
process when a party claims an opponent has discriminatorily exercised a
peremptory challenge against a prospective juror on the basis of race, religion,
ethnicity, gender, or other cognizable group bias: “[O]nce the opponent of a
peremptory challenge has made out a prima facie case of racial discrimination
(step one), the burden of production shifts to the proponent of the strike to come
forward with a race-neutral explanation (step two). If a race-neutral explanation is
tendered, the trial court must then decide (step three) whether the opponent of the
1
strike has proved purposeful racial discrimination.” (Purkett v. Elem (1995) 514
U.S. 765, 767.)
In
People v. Silva (2001) 25 Cal.4th 345, 384 (Silva), our concern was with
step three of this process, “whether the record as a whole shows purposeful
discrimination.” We then held that “[w]hen the prosecutor’s stated reasons are
both inherently plausible and supported by the record, the trial court need not
question the prosecutor or make detailed findings. But when the prosecutor’s
stated reasons are either unsupported by the record [or] inherently implausible . . .
more is required of the trial court than a global finding that the reasons appear
sufficient.” (Id. at p. 386, italics added.) Under such circumstances, the trial court
has two obligations: “to make ‘a sincere and reasoned attempt to evaluate the
prosecutor’s explanation’ (People v. Hall (1983) 35 Cal.3d 161, 167-168) and to
clearly express its findings. (People v. Fuentes (1991) 54 Cal.3d 707, 716, fn. 5.)”
(Id. at p. 385.)
Proceedings Below
At the step two hearing, the prosecutor asserted that he challenged Hispanic
Prospective Juror Elizabeth G. because she was a “customer service
representative” and “[i]n terms of that, we felt that she did not have enough
educational experience.” He added, “It seemed she was not paying attention to the
proceedings and the People felt that she was not involved in the process.” The
trial court did not afford the defense an opportunity to respond to this proffer and
instead issued a global finding: “I accept those reasons as being not based upon
race or ethnicity. . . . So the motion is denied.”
2
Counsel for Julian Reynoso then asked if he could “make a couple [of]
points for the record” and the court consented.1 The following colloquy took
place:
“[Counsel for Julian]: “And a couple [of] points for the record is that [the
prosecutor] passed on [Elizabeth G.] about seven or eight times. Then when I
think he sensed that the defense was getting ready to pass, then it excused
[Elizabeth G.]. There’s nothing about what [Elizabeth G.] said in terms of her
background that would make her be sympathetic to the defendants in this case.
When she said she was a customer service rep. Her husband is a construction
supervisor. [¶] She’s got friends in the Porterville [Police Department], her
brother or brother-in-law works for the California Department of Corrections.
There was nothing in her responses or her demeanor that would justify just
excusing her other than it being a race-based exclusion is our position.
“The Court: And I believe that there was another Hispanic that was
excused not by the People, but by the defense, and that was [Carolyn G.].
“[Counsel for Julian]: That was a legitimate reason. I didn’t excuse her.
“The Court: I’m not saying it wasn’t legitimate. You just brought up --
I’m not arguing with you, but I want the record to be clear, you argued that even a
person who the People should want to have on, namely law enforcement
background, may still kick off because of being Hispanic. I’m just pointing out
that [Carolyn G.] was another person that is Hispanic background but they did not
1
In People v. Johnson (2003) 30 Cal.4th 1302, 1324-1325, we held that “a
reviewing court should not attempt its own comparative juror analysis for the first
time on appeal,” but “[w]hen 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.” In light of Johnson, it is incumbent upon objecting parties to make a full
record at step two or step three of a Batson/Wheeler hearing. (People v. Wheeler
(1978) 22 Cal.3d 258).
3
kick off and I believe her background was that she had been the one who had been
kidnapped.
“[Counsel for Julian]: Right. I would say she would want to be kept on by
the People because she’s been a victim of a violent crime at gunpoint.
“The Court: But your argument was that so should the other person
[Elizabeth G.] because they had law enforcement background.
“[Counsel for Julian]: I didn’t say she was law enforcement background.
“The Court: I thought you said --
“[Counsel for Julian]: I was looking over my notes in terms of what
[Elizabeth G.] said in answer to the nine questions that are up on the little poster.
She responded that she has friends in the Porterville [Police Department].
“The Court: Right. Law enforcement people.
“[Counsel for Julian]: And a brother who works for California Department
of Corrections. So I’m just saying that based on those responses, there’s no
legitimate reason to exclude her based on those responses other than the fact that
she has her -- she’s Hispanic. I’m trying to make that for the record. [¶] [The
prosecutor] argued that [Mary L.] would be sympathetic because she works with at
risk youth. That’s his reason for excusing her. But for the record also the reason
[Carolyn G.] was excused, as I understand it from [counsel for John Reynoso], is
because she was a victim of violent crime where guns were involved. That’s what
we have here.
“The Court: Okay. Thank you.
“[The Prosecutor]: I’d like the record to reflect that defense counsel also
had a challenge to [Mrs. T.] [who] seemed and looked Hispanic to me and I think
they exercised or kicked off her as well.[2]
2
The prospective juror that the prosecutor was referring to was excused by
the defense during the selection of alternate jurors.
4
“The Court: All right. We’ll see you tomorrow morning at 9:45.”
The transcript reflects counsel’s argument that there was nothing in
Elizabeth G.’s background (law enforcement ties) or in her occupation as a
customer service representative that would make her sympathetic to the defense;
to the contrary, her law enforcement ties would, if anything, make her sympathetic
to the prosecution. Counsel added that nothing in Elizabeth G.’s responses or
demeanor would justify excusing her. Counsel asserted that the prosecutor’s
stated race-neutral reasons for excusing Elizabeth G. were not legitimate and that
she was excused because she was Hispanic.
Rather than respond directly to these claims, the trial court instead noted
that defense counsel had excused a Hispanic juror (Carolyn G.). When counsel
argued that the reasons for excusing Carolyn G. were legitimate, the court
conclusorily replied that a Hispanic juror with law enforcement ties may still be
peremptorily excused by the People, and a Hispanic juror who had been kidnapped
had not been excused by the People. Counsel then made it clear that Carolyn G.
was excused precisely because she was the victim of a violent crime (kidnapping
and attempted rape) at gunpoint, which might make her sympathetic to the
prosecution. Unquestionably, this is a legitimate race-neutral reason for excusing
a prospective juror. (See, e.g., People v. Johnson (1989) 47 Cal.3d 1194, 1215,
quoting People v. Wheeler, supra, 22 Cal.3d at p. 275 (Wheeler) [“ ‘a defendant
may suspect prejudice on the part of one juror because he has been the victim of
crime’ ”].) Yet the court persisted in highlighting Elizabeth G.’s law enforcement
ties and stating, without explanation, that the prosecutor might still excuse such a
juror.
Counsel again explained that Carolyn G. was excused by the defense for
the legitimate race-neutral reason that she was the victim of a kidnapping at
gunpoint and might be considered sympathetic to the prosecution. He added that
5
Mary L., the other Hispanic juror, was excused by the prosecution for the
legitimate race-neutral reason that she worked with at-risk youth and might be
considered sympathetic to the defense. In contrast, stated counsel, there was no
legitimate race-neutral reason for excusing Elizabeth G. The court ignored
counsel’s argument. Then the prosecutor spoke, and instead of justifying his
stated reasons for excusing Elizabeth G., he reminded the court that defense
counsel had challenged another prospective juror (Mrs. T.) who appeared to be
Hispanic. Again, the trial judge did not respond, nor did he affirmatively state that
the court’s prior ruling would stand. Instead, the judge simply dismissed the
parties for the day.
The Majority’s Assertions
From this record, the majority makes two unfounded assertions: (1) the trial
court was not required to make a sincere and reasoned attempt to evaluate the
prosecutor’s explanation and clearly express its findings (Silva, supra, 25 Cal.4th
at p. 386); and (2) there was no error under People v. Snow (1987) 44 Cal.3d 216,
225 (Snow), where we held “the propriety of the prosecutor’s peremptory
challenges must be determined without regard to the validity of defendant’s own
challenges.” I dissent.
Undermining Silva
Silva was a unanimous opinion decided just two years ago. We held that
the trial court erred in denying a Wheeler motion as to a prospective Hispanic juror
because “[n]othing in the transcript of voir dire supports the prosecutor’s
assertions that [the juror] would be reluctant to return a death verdict or that he
was ‘an extremely aggressive person.’ ” (Silva, supra, 25 Cal.4th at p. 385, italics
added.) We then held that “when the prosecutor’s stated reasons [for excusing a
6
juror] are either unsupported by the record, inherently implausible, or both,” (id. at
p. 386, italics added), the trial court must make a sincere and reasoned attempt to
evaluate the prosecutor’s explanation and clearly express its findings. (Id. at pp.
385, 386.) Because “both of the prosecutor’s stated reasons [for excusing Juror
M.] were factually unsupported by the record,” we found a Batson/Wheeler
violation. (Id. at p. 386, italics added.) Notably, the word contradict does not
appear in the Silva opinion.
Yet today, without a sound basis in logic or law, a majority of this court
elevates Silva’s “unsupported by the record” standard to a much stricter
“contradicted by the record” standard: “Unlike the reasons given by the prosecutor
in Silva, the prosecutor’s reasons given in this case for peremptorily excusing
Elizabeth G. were neither inherently implausible, nor affirmatively contradicted by
anything in the record.” (Maj. opn., ante, at p. 27, italics added.) The majority
also states: “Nor have we found anything in the record to directly contradict the
trial court’s express findings to that effect, in contrast to the facts of Silva.” (Id. at
p. 28, italics added.)3 The majority concludes: “[W]here the prosecutor’s reasons
for excusing the juror are neither contradicted by the record nor inherently
implausible (Silva, supra, 25 Cal.4th at p. 386), . . . a Batson/Wheeler motion [may
be] denied, notwithstanding that the record does not contain detailed findings
regarding the reasons for the exercise of each such peremptory challenge.” (Id. at
pp. 32-33.)
The effect of the majority’s ruling, as noted by Justice Kennard, is to
insulate prosecutors and others who improperly discriminate against jurors for
reasons of group bias. (Dis. opn. of Kennard, J., ante, at p. 1.) Here, the
3
This last statement is factually incorrect. The trial court made no express
findings as to Prospective Juror Elizabeth G.’s education or demeanor.
7
prosecutor’s first purported race-neutral reason for excusing Elizabeth G. was that,
as a customer service representative, “she did not have enough educational
experience.” I agree with the majority’s assertion that this reason is of
“questionable persuasiveness” (maj. opn., ante, at p. 25) and “a dubious notion
when viewed in isolation.” (Id. at p. 27.) However, I disagree that this reason,
without further explanation, is “subjective[ly] genuine[]” (id. at p. 24) and
“legitimate in the sense that it would not deny defendants equal protection of the
law.” (Id. at p. 27.) Simply stated, there is nothing in the record to suggest that
customer service representatives generally, or this particular juror, lacked
educational experience.
The majority, however, reasons that “If a prosecutor can lawfully
peremptorily excuse a potential juror based on a hunch or suspicion, or because he
does not like the potential juror’s hairstyle, or because he observed the potential
juror glare at him, or smile at the defendant or defense counsel, then surely he can
challenge a potential juror whose occupation, in the prosecutor’s subjective
estimation, would not render him or her the best type of juror to sit on the case for
which the jury is being selected.” (Id. at p. 26, italics added.) But the prosecutor
did not state he had a hunch, nor did he state that he observed a smile, a glare or
poorly groomed hair. Nor did he state that he peremptorily challenged Elizabeth
G. because of her occupation; rather, the prosecutor stated that “she did not have
enough educational experience.” Batson requires an examination of the
prosecutor’s stated race-neutral explanation. (Purkett v. Elem, supra, 514 U.S. at
p. 767.)4 Here, not only is the prosecutor’s stated excuse unsupported by the
4
See also Hernandez v. New York (1991) 500 U.S. 352, 358-359 (plur. opn.)
(“[I]f the requisite [prima facie] showing has been made [by the defendant], the
burden shifts to the prosecutor to articulate a race-neutral explanation for striking
the jurors in question.”).
8
record, it is lacking in any reasonable foundation in common knowledge or
common sense.5 The subjective genuineness of the prosecutor’s stated excuse,
therefore, was questionable and demands further inquiry by the trial court.
Moreover, the prosecutor’s first unsupported excuse was followed by a
second excuse that was further disputed by defendant. Specifically, after the
prosecutor stated “[i]t seemed like [Elizabeth G.] was not paying attention to the
proceedings and [he] felt that she was not involved in the process,” the defense
attorney replied, ‘[t]here was nothing in her responses or demeanor that would
justify excusing her other than it being a race-based exclusion.” In other words,
defense counsel argued to the court that the prosecutor’s stated race-neutral reason
for excusing Elizabeth G. was unsupported by the record and contradicted by his
own observations. Yet the trial court did not attempt to resolve this factual dispute
by stating its own observations of the juror’s alleged inattentiveness. Instead, the
trial court completely ignored the defense attorney’s observations and argument.
The majority argues that the prosecutor’s demeanor-based reason is
supported by the record because Elizabeth G. stated during voir dire that “she had
no prior jury experience and no past contact with the criminal justice system in
any capacity.” (Maj. opn., ante, at p. 26.) But the prosecutor did not rely upon
this statement and, as noted, Batson requires that we examine the prosecutor’s
stated excuse. The prosecutor stated that Elizabeth G. “was not paying attention.”
Obviously, not paying attention is logically unrelated to prior jury service or prior
5
The majority attempts to bolster its position by pointing out that an attorney
could legitimately “excuse a potential juror because he or she feels the potential
juror’s occupation reflects too much education.” (Maj. opn., ante, at p. 26, fn. 6.)
While common knowledge and common sense might suggest that doctors,
mathematicians and engineers, for example, are highly educated and therefore
might have “too much education” to sit on a particular jury, there is no basis upon
which to conclude that customer service representatives do not have enough
educational experience to sit on a particular jury.
9
contact with the criminal justice system. More importantly, the prosecutor’s
assertion that Elizabeth G. “was not paying attention” was directly contradicted by
the defense. As noted by Justice Kennard, “This contrary assertion created a
factual dispute for the trial court to resolve.” (Dis. opn. of Kennard, J., ante, at p.
4.)
Thus, in the present case, we have one race-neutral reason (education) that
is unsupported by the record and belied by common knowledge and common
sense, and a second race-neutral reason (demeanor) that was contradicted by
defense counsel.6 Under our recent, unanimous Silva holding, the trial court is
6
The majority attempts to support its claim that the prosecutor’s reasons for
challenging Elizabeth G. were not pretextual by pointing out that he accepted “the
jury 14 times with Elizabeth G. seated in the jury box” before challenging her.
(Maj. opn., ante, at p. 28.) This assertion is misleading because it neglects two
factors: (1) because this was a two defendant case, each side had 30 peremptory
challenges in selecting the jury (Code Civ. Proc. § 231, subd. (a)) and the two
defense attorneys were alternating their 20 joint challenges; this allowed the
prosecutor to wait before exercising his peremptory challenges; and (2) the trial
court used the “six pack” method of jury selection, which also allows attorneys to
manage their peremptory challenges since they know in advance which six
prospective jurors will replace the prospective jurors in the jury box who are
challenged. Specifically, the court called the names of 18 prospective jurors: 12
prospective jurors were placed in the jury box (one of whom was Elizabeth G.),
and an additional six prospective jurors were seated outside the jury box (the six-
pack). The court then posed questions to the 18 prospective jurors and once this
process was completed, seven peremptory challenges were exercised, leaving 11
prospective jurors in the jury box and leaving no prospective jurors in the six-
pack. At this juncture, seven additional prospective jurors were called by the
court; one prospective juror was placed in the jury box, and the remaining six
prospective jurors were placed in the six-pack. Once the questioning of these
seven prospective jurors was completed (the second round of questioning), the
above process was repeated. Jury selection was completed after three rounds of
questioning. As noted, Elizabeth G. was one of the original 12 prospective jurors
placed in the jury box. The prosecutor challenged one juror (who knew defense
counsel) after the first round of questioning and the defense challenged six jurors.
Seven new names were called, including Mary L. and Joe S. After the defense had
challenged four jurors following the second round of questioning, the prosecutor
10
obligated to make a sincere and reasoned attempt to evaluate the prosecutor’s
explanations and clearly express its findings.7
Because it cannot justify its holding based on the reasons stated by the
prosecutor, the majority essentially rewrites Silva. Whereas Silva held that a trial
court’s obligation to inquire was triggered by a race-neutral excuse unsupported
by the record, the majority today holds that such an obligation is triggered only
where such an excuse is contradicted by the record. However, where the
unexamined race-neutral excuse belies common sense or is contradicted by
defense counsel, we cannot presume that the prosecutor has exercised the
peremptory challenge in a constitutional manner. (People v. Turner (1994) 8
Cal.4th 137, 165.) Under such circumstances, it is all the more important that the
trial court “make a ‘sincere and reasoned attempt to evaluate the prosecutor’s
explanation’ [citation] and to clearly express its findings [citation].” (Silva, supra,
25 Cal.4th at p. 385.)
challenged Joe S., a prospective juror who worked in a law office. The defense
then passed. The prosecutor then challenged the first Hispanic prospective juror,
Mary L. After defense challenged a juror, seven new names were called,
including Carolyn G. Carolyn G. was the fourth prospective juror challenged by
the defense after the third round of questioning. The prosecutor then excused
Elizabeth G. The defense and prosecutor then accepted the jury. Two events
stand out: (1) the prosecutor’s challenge of the first Hispanic juror (Mary L.)
immediately after defense counsel had accepted the jury (voir dire would have
otherwise ended); and (2) the prosecutor’s challenge of Elizabeth G. two rounds
subsequent to her name being called (he exercised his three other peremptory
challenges in the same round those jurors’ names were called). Standing alone,
these two events are arguably innocuous; but viewed in the context of the other
evidence of the prosecutor’s discriminatory intent, his peremptory challenge
strategy is consistent with an intent to remove Hispanics from the jury.
7
See also People v. Fuentes (1991) 54 Cal.3d 707, 720 (where prosecutor
offered sham and valid reasons for excusing a juror, court is obligated to make a
“truly ‘reasoned attempt’ to evaluate the prosecutor’s explanations” and is
required to address the challenged jurors individually).
11
Snow Violation
In Wheeler, “[i]nstead of justifying his own conduct, the prosecutor simply
retorted that defense counsel seemed in their turn to be striking from the jury . . .
most of those with Spanish surnames.” (Wheeler, supra, 22 Cal.3d at p. 283, fn.
30.) We held that “[a] party does not sustain his burden of justification by
attempting to cast a different burden on his opponent.” (Ibid.) In Snow, supra, 44
Cal.3d at page 225, we reiterated this aspect of the Wheeler holding and stated:
“As the People now concede, the propriety of the prosecutor’s peremptory
challenges must be determined without regard to the validity of defendant’s own
challenges.”
Here, defense counsel contested the prosecutor’s purported race-neutral
reasons for challenging Juror Elizabeth G. As noted above, the trial court, in
violation of Silva, failed to sincerely evaluate the prosecutor’s explanation and
failed to make particularized findings. (Silva, supra, 25 Cal.4th at p. 386). The
trial court compounded its error by committing a Snow violation: it attempted to
justify the prosecutor’s conduct by pointing out that defense counsel had
challenged a Hispanic juror. The prosecutor then asked “the record to reflect that
defense counsel also had a challenge to [Mrs. T.] [who] seemed and looked
Hispanic to me.” The trial court did not respond, but excused the parties for the
day.
The majority attempts to justify the court’s actions by stating: “The court’s
point was simply this: if defense counsel’s threshold premise was true, then the
prosecutor, consistent with that premise, had indeed not excused Carolyn G. given
her favorable law enforcement contacts, notwithstanding her Hispanic ancestry.
In context, the point the trial court was obviously trying to make was that the
prosecutor did seek to retain jurors with law enforcement contacts who would
normally be deemed favorable to the prosecution, including Carolyn G., who was
12
Hispanic. By parity of reasoning, one might expect the prosecutor to have
likewise sought to retain Prospective Juror Elizabeth G. who, like Carolyn G., had
such favorable law enforcement contacts, notwithstanding her Hispanic ancestry,
and that Elizabeth G. would have been retained were it not for the other reasons of
specific bias which the prosecutor indicated had in fact motivated him to excuse
her (her perceived lack of ‘educational experience’ given her occupation, coupled
with her apparent inattentiveness and lack of involvement in the jury selection
proceedings).” (Maj. opn., ante, at pp. 30-31.)
The majority’s assertion is unfounded.8 Defense counsel’s point was
that there were legitimate race-neutral reasons for challenging Mary L. and
Carolyn G., but there was likewise no legitimate race-neutral reason for
challenging Elizabeth G. But the trial court completely ignored this argument
and stated only that the defense, like the prosecution, had excused a Hispanic
juror, which constitues a violation of Snow because the court attempted to
justify the prosecutor’s peremptory challenge by referencing the validity of
the defendant’s peremptory challenge. I do not share in the majority’s
confidence that this is not what occurred because the prosecutor, who was
8
The majority’s premise is also flawed because “there [is] no way to
determine whether the prosecutor would have challenged Carolyn G. had the
defense not done so first.” (Dis. opn., Kennard, J., ante, at p. 5.) The majority
accuses the dissenting justices of “engag[ing] in speculation” on this point because
the “record lends no support to the insinuation that the prosecutor ‘might’ have
challenged” Carolyn G. because “the prosecutor passed and accepted the jury with
Carolyn G. seated in the jury box four times before the defense elected to
peremptorily excuse her.” (Maj. opn., ante, at pp. 31-32, fn. 9.) This is the
sheerest conjecture and is completely undermined by the record. As pointed out
by the majority on three occasions, the prosecutor accepted Elizabeth G. “14
times” before he peremptorily excused her. (Maj. opn., ante, at pp. 5, 28, 29.) It is
disingenuous to now claim there is “no support” in the record that the prosecutor
would not have excused Carolyn G. where only four opportunites for a peremptory
challenge had passed.
13
present during this exchange, asked “the record to reflect that defense counsel
also had a challenge to [Mrs. T.] [who] seemed and looked Hispanic to me.”
Clearly, the prosecutor, like the court, attempted to justify the peremptory
challenge of Elizabeth G. by casting aspersion on the defense. This is a violation
of Snow.
Conclusion
The majority today turns a blind eye to our recent precedent and effectively
allows prosecutors to improperly discriminate against prospective Hispanic,
African-American and other cognizable group jurors with impunity. The majority
opinion signals a significant retreat in the evolution of our Wheeler jurisprudence
and strikes a major blow against a defendant’s constitutional right to a fair,
impartial, and representative jury. Therefore I dissent.
MORENO, J.
WE CONCUR: KENNARD, J.
WERDEGAR,
J.
14
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Reynoso (Julian & John)
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 94 Cal.App.4th 86
Rehearing Granted
__________________________________________________________________________________
Opinion No. S103340 and S103343
Date Filed: August 25, 2003
__________________________________________________________________________________
Court: Superior
County: Tulare
Judge: Joseph A. Kalashian
__________________________________________________________________________________
Attorneys for Appellant:
Kim Malcheski, under appointment by the Supreme Court, for Defendant and Appellant Julian Jesus
Reynoso.
Alisa M. Weisman, under appointment by the Supreme Court, for Defendant and Appellant John Paul
Reynoso.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Jo Graves, Assistant Attorney General, Stan Cross, Patrick J. Whalen, John G. McLean and David
A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Kim Malcheski
P.O. Box 40105
San Francisco, CA 94140
(415) 647-2797
Alisa M. Weisman
Law Office of A.M. Weisman
P.O. Box 4236
Diamond Bar, CA 91765-0236
(909) 465-6603
David A. Lowe
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 322-5682
2
Opinion Information
| Date: | Docket Number: |
| Mon, 08/25/2003 | S103343 |
Parties
| 1 | The People (Plaintiff and Respondent) Represented by David Andrew Lowe OFFICE OF THE ATTORNEY GENERAL P. O. Box 944255 Sacramento, CA |
| 2 | Reynoso, John Paul (Defendant and Appellant) California State Prison P. O. Box 3466 Corcoran, CA 93212 Represented by A. M. Weisman Law Office Of A.M. Weisman P. O. Box 4236 Diamond Bar, CA |
| Disposition | |
| Aug 25 2003 | Opinion: Reversed |
| Dockets | |
| Jan 3 2002 | Petition for review filed in Sacramento by the Attorney General on behalf of Respondent People |
| Jan 4 2002 | Record requested |
| Jan 8 2002 | Received Court of Appeal record two doghouses |
| Jan 14 2002 | Answer to petition for review filed counsel for appellant |
| Feb 20 2002 | Petition for Review Granted (criminal case) Votes: George, CJ., Kennard, Baxter, Werdegar and Chin, JJ. |
| Feb 21 2002 | Note: |
| Mar 5 2002 | Counsel appointment order filed A. M. Weisman. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| Mar 21 2002 | Opening brief on the merits filed in Sacramento by respondent (People) |
| Apr 3 2002 | Answer brief on the merits filed appellant's brief/merits by counsel for appellant John Paul Renoso |
| Apr 10 2002 | Filed letter from: counsel for appellant, errata letter for brief/merits |
| Apr 19 2002 | Reply brief filed (case fully briefed) in Sacramento by Respondent People |
| Aug 28 2002 | Compensation awarded counsel Atty Weisman |
| Apr 30 2003 | Case consolidated with: S103340 (People v. Julian Jesus Reynoso) Good cause appearing, the above-entitled cases are hereby consolidated for purposes of oral argument and opinion. Oral argument shall be 1 hour in total, with 30 minutes for the People (respondent) and 30 minutes divided equally between appellants John Paul Reynoso & Julian Jesus Reynoso, unless appellants agree to a different allocation that complies with Section V, paragraph 3 of the Internal Operating Practices & Procedures of the California Supreme Court. At the consolidated oral argument, appellant John Paul Reynoso shall make his opening arguments in S013343, followed by the opening arguments of appellant Julian Jesus Reynoso in S013340. Thereafter, the People (respondent) shall make their arguments. Appellants John Paul Reynoso & Julian Jesus Reynoso may reserve time for rebuttal, presented in the order indicated above. |
| Apr 30 2003 | Case ordered on calendar 5-27-03, 9am, S.F. consolidated argument with S103340 |
| May 14 2003 | Received: from counsel for appellant Reynoso, add'l authorities for O/A. |
| May 27 2003 | Cause argued and submitted (with S103340) |
| Aug 25 2003 | Opinion filed: Judgment reversed C/A Judgments reversed and remanded. Majority Opinion By Baxter, J. -- joined by George, C. J., Chin and Brown, JJ Dissenting Opinion by Kennard, J. -- joined by Werdegar and Moreno, JJ Dissenting Opinion by Moreno, J. -- joined by Kennard and Werdegar, JJ. |
| Sep 2 2003 | Rehearing petition filed by counsel for appellant John Paul Reynoso |
| Sep 4 2003 | Received: certificate of word count compliance for petn/rehearing from counsel for appellant John Paul Reynoso |
| Sep 9 2003 | Time extended to consider modification or rehearing to and including November 21, 2003 |
| Sep 10 2003 | Rehearing petition filed by counsel for appellant (Julian Jesus Reynoso) (40k) Exp. Mail. |
| Oct 27 2003 | Order filed The order filed September 9, 2003, extending time to modify or grant rehearing to and including November 21, 2003, is modified as to a second Supreme Court number. |
| Oct 29 2003 | Rehearing denied |
| Oct 29 2003 | Remittitur issued (criminal case) Two certified copies sent to Fifth District, |
| Oct 29 2003 | Returned record No. F034873 [S103343] to Fifth District Court of Appeal in two doghouses (vols.) |
| Nov 6 2003 | Application filed to: Recall Remittitur filed by counsel for Appellant John Paul Reynoso |
| Nov 6 2003 | Record requested |
| Nov 6 2003 | Received: Receipt for remittitur from CA/5 in F034873 (John Paul Reynoso), signed for by Robert Abilez, Deputy Clerk |
| Nov 19 2003 | Request Denied The Application to Recall Remittitur and for Order Remanding to Court of Appeal for Further Proceedings is denied without prejudice to appellant filing an application in the Court of Appeal to recall that court's remittitur. (See rule 26(c)(2), Cal. Rules of Court.). Kennard, J., did not participate. |
| Jan 14 2004 | Compensation awarded counsel Atty Wiesman |
| Briefs | |
| Mar 21 2002 | Opening brief on the merits filed |
| Apr 3 2002 | Answer brief on the merits filed |
| Apr 19 2002 | Reply brief filed (case fully briefed) |
