In re FRED HARLAN FREEMAN

Filed 5/18/06

IN THE SUPREME COURT OF CALIFORNIA

)

In re FRED HARLAN FREEMAN, )

) S122590

on Habeas Corpus. )

___________ )

STORY CONTINUED FROM ( PART I )…………

Quatman's claim that he downgraded Prospective Jurors Peisker and LaPut because of his ex parte conversation with Judge Golde about excluding Jews from the jury is further undermined by Freeman's failure to demonstrate that no other prospective juror's rating was downgraded. In fact, although the record does not include Quatman's notes for most of the prospective jurors, even this limited record reveals that Quatman downgraded Prospective Juror Dupree between his voir dire notes and the preparation of his rolodex card for that juror. Inasmuch as Quatman never claimed that he believed Juror Dupree was Jewish, the record suggests that Quatman revisited his ratings of the venire once voir dire had been completed and he could evaluate each juror against the closed universe of possible jurors--not because of newfound suspicion as to their religion.

For all of these reasons, we find that Freeman has failed to discharge his burden to prove that Judge Golde advised Quatman to exclude Jewish prospective jurors on April 28, 1987, as alleged in the third petition for writ of habeas corpus.

B. Whether Quatman Excused Jewish Prospective Jurors Based on Their Religion

The petition can also be read to allege that even if the ex parte conversation did not occur, Quatman nonetheless excused prospective jurors because of their religion. We have previously stated that religious membership constitutes an identifiable group under Wheeler. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1122.) The United States Supreme Court has not similarly extended Batson, although a number of state and federal courts have done so. (See Miller-El v. Dretke (2005) 545 U.S. ___, ___ [125 S.Ct. 2317, 2342] (conc. opn. of Breyer, J.).) Assuming without deciding that Batson, like Wheeler, applies to peremptory challenges based upon bias against religious groups, we nevertheless adopt the referee's finding that Quatman did not exercise peremptory challenges against Prospective Jurors Mishell, Peisker, or LaPut because of their religion.

First, the record does not support Quatman's claim that he acted with a discriminatory motive.

As to Juror Mishell, Quatman testified that he rated her a zero at the â€