PEOPLE v. LENIX
Filed 7/24/08 (this opn. should precede S042224, also filed 7/24/08)
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendant and Appellant. ) Super. Ct. No. BF100124B
__________________________________ )
Story Continued From Part I ..
In Snyder, the high court recognized the potentially misleading nature of a retrospective comparative juror analysis performed on a cold record, but nevertheless relied on this evidence as bearing on the question of the prosecutors credibility. (Snyder, supra, 128 S.Ct. at p. 1211-1212.)
Miller-El II, supra, 545 U.S.231 and Snyder, supra, 128 S.Ct. 1203 demonstrate that comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination. These cases stand for the proposition that, as to claims of error at Wheeler/Batsons third stage, our former practice of declining to engage in comparative juror analysis for the first time on appeal unduly restricts review based on the entire record.[1] As the high court noted in Snyder, In Miller-El v. Dretke, the Court made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animositymust be consulted. (Snyder, at p. 1208, italics added.) Thus, evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons.
Nevertheless, like the Snyder court, we are mindful that comparative juror analysis on a cold appellate record has inherent limitations. (See Snyder, supra, 128 S.Ct. at p. 1211.) Experienced trial lawyers recognize what has been borne out by common experience over the centuries. There is more to human communication than mere linguistic content. On appellate review, a voir dire answer sits on a page of transcript. In the trial court, however, advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact. Even an inflection in the voice can make a difference in the meaning. The sentence, She never said she missed him, is susceptible of six different meanings, depending on which word is emphasized. (Tallman v. ABF (Arkansas Best Freight) (N.M. Ct. App. 1988) 767 P.2d 363, 366.) [T]he manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. (Reynolds v. United States (1878) 98 U.S. 145, 156-157.)
For example, two panelists may each state he or she was arrested for driving under the influence of alcohol and pled guilty. In response to questions by the prosecutor, each may state he or she harbors no ill feeling against the police as a result of the incident and will not hold that experience against the prosecution. One panelist may deliver that answer in a way that conveys embarrassment, remorse and authenticity of response. The other panelist may answer with a tone of voice, gesture, expression or hesitation that conveys strong negative feelings about the experience and belies the truthfulness of the answer. A transcript will show that the panelists gave similar answers; it cannot convey the different ways in which those answers were given. Yet those differences may legitimately impact the prosecutors decision to strike or retain the prospective juror. When a comparative juror analysis is undertaken for the first time on appeal, the prosecutor is never given the opportunity to explain the differences he perceived in jurors who seemingly gave similar answers.
Moreover, the selection of a jury is a fluid process, with challenges for cause and peremptory strikes continually changing the composition of the jury before it is finally empanelled. As we noted in People v. Johnson (1989) 47 Cal.3d 1194: [T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view. If the panel as seated appears to contain a sufficient number of jurors who appear strong-willed and favorable to a lawyers position, the lawyer might be satisfied with a jury that includes one or more passive or timid appearing jurors. However, if one or more of the supposed favorable or strong jurors is excused either for cause or [by] peremptory challenge and the replacement jurors appear to be passive or timid types, it would not be unusual or unreasonable for the lawyer to peremptorily challenge one of these apparently less favorable jurors even though other similar types remain. These same considerations apply when considering the age, education, training, employment, prior jury service, and experience of the prospective jurors. (Id. at p. 1220.)
Ultimately, an advocate picking a jury is selecting a committee to decide the case. In addition to each panelists individual characteristics, the group must be able to work together with courtesy and dispassion to reach a complex result with substantial consequences. An advocate is entitled to consider a panelists willingness to consider competing views, openness to different opinions and experiences, and acceptance of responsibility for making weighty decisions. Once empanelled, the jury wields tremendous power over the outcome of the case. Even the opportunity to question each panelist individually for the few minutes allotted provides only a glimpse into the panelists thoughts, decisionmaking ability, experiences, and willingness to discharge the panelists important duty. Each juror becomes, to a certain degree, a risk taken. Voir dire is a process of risk assessment. As the Supreme Court observed, potential jurors are not products of a set of cookie cutters. (Miller-El II, supra, 545 U.S. at p. 247, fn. 6.) Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial courts factual finding.
For these reasons, comparative juror evidence is most effectively considered in the trial court where the defendant can make an inclusive record, where the prosecutor can respond to the alleged similarities, and where the trial court can evaluate those arguments based on what it has seen and heard. Contrary to assertions by amici curiae, advocates can object to disparate treatment of similarly situated jurors at trial without having reviewed voir dire transcripts. Wheeler/Batson motions are routinely argued based on the voir dire notes and memory of the prosecution, defense, and trial court. Comparative juror analysis is no different. Defendants who wait until appeal to argue comparative juror analysis must be mindful that such evidence will be considered in view of the deference accorded the trial courts ultimate finding of no discriminatory intent. (See Hernandez v. New York, supra, 500 U.S. at p. 365.) Additionally, appellate review is necessarily circumscribed. The reviewing court need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment. Further, the trial courts finding is reviewed on the record as it stands at the time the Wheeler/Batson ruling is made. If the defendant believes that subsequent events should be considered by the trial court, a renewed objection is required to permit appellate consideration of these subsequent developments.
The inherent limitations of comparative juror analysis can be tempered by creating an inclusive record. Miller-El II and Snyder demonstrate that an adequate record is critical for meaningful review. Counsel and the trial court bear responsibility for creating such a record. Miller-ElII admonishes prosecutors faced with a Wheeler/Batson claim to provide as complete an explanation for their peremptory challenge as possible. The high court stated: It is true that peremptories are often the subjects of instinct, Batson v. Kentucky, supra, at 106, (Marshall, J., concurring), and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false. (Miller-El II, supra, 545 U.S. at p. 252.)The high court cautioned that efforts by a trial or reviewing court to substitute a reason will not satisfy the prosecutors burden of stating a racially-neutral explanation. (Ibid.) For this reason, trial courts must give advocates the opportunity to inquire of panelists and make their record. If the trial court truncates the time available or otherwise overly limits voir dire, unfair conclusions might be drawn based on the advocates perceived failure to follow up or ask sufficient questions. Undue limitations on jury selection also can deprive advocates of the information they need to make informed decisions rather than rely on less demonstrable intuition.[2]
As to trial judges, the court in Miller-ElII emphasized that it is the trial courts duty to assess the plausibility of the prosecutors proffered reasons for striking a potential juror in light of all evidence with a bearing on it. (Miller-ElII, supra, 545 U.S. at p. 252) The Snyder court stated that the trial court bears a pivotal role in evaluating Batson claims, for the trial court must evaluate the demeanor of the prosecutor in determining the credibility of proffered explanations, and the demeanor of the panelist when that factor is a basis for the challenge. (Snyder, supra, 128 S.Ct. at p. 1208.)
It should be discernable from the record that 1) the trial court considered the prosecutors reasons for the peremptory challenges at issue and found them to be race-neutral; 2) those reasons were consistent with the courts observations of what occurred, in terms of the panelists statements as well as any pertinent nonverbal behavior; and 3) the court made a credibility finding that the prosecutor was truthful in giving race-neutral reasons for the peremptory challenges. As to the second point, the court may not have observed every gesture, expression or interaction relied upon by the prosecutor. The judge has a different vantage point, and may have, for example, been looking at another panelist or making a note when the described behavior occurred. But the court must be satisfied that the specifics offered by the prosecutor are consistent with the answers it heard and the overall behavior of the panelist. The record must reflect the trial courts determination on this point (see Snyder, supra, 128 S.Ct. at p. 1209), which may be encompassed within the courts general conclusion that it considered the reasons proffered by the prosecution and found them credible.
In terms of appellate review, Miller-ElII emphasized that the question of purposeful discrimination continues to involve an examination of all relevant circumstances. Comparative juror analysis was only one part of the Supreme Courts exhaustive review in an egregious case. The court did not rule that comparative juror analysis, standing alone, would be sufficient to overturn a trial courts factual finding. Instead the court emphasized: The case for discrimination goes beyond these [juror] comparisons to include broader patterns of practice during the jury selection. (Miller-El II, supra, 545 U.S. at p. 253.) Viewing the evidence in its totality, the court stated: It blinks reality to deny that the State struck Fields and Warren . . . because they were black. The strikes . . . occurred during a selection infected by shuffling and disparate questioning that race explains better than any race-neutral reason advanced by the State. The States pretextual positions confirm Miller-Els claim, and the prosecutors own notes proclaim that the Sparling Manuals emphasis on race was on their minds when they considered every potential juror. (Id. at p. 266.) Likewise, in Snyder, comparative juror analysis was an additional form of evidence considered by the Supreme Court in its review of the record. (Snyder, supra, 128 S.Ct. at p. 1211.)
The Supreme Court reiterated that reviewing courts must accord significant deference to the factual findings on the question of discriminatory intent. (Snyder, supra, 128 S.Ct. at pp. 1207-1208; Miller-El II, supra, 545 U.S. at p. 240;
Miller-El I, supra, 537 U.S. at pp. 339-340.) When an advocates peremptory strike is challenged, the trial court must determine whether the advocate allowed his or her calculus to be infected by racial bias and then lied to the court in an attempt to get away with it. As a reviewing court, we presume the advocate uses peremptory challenges in a constitutional manner, and defer to the trial courts ability to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination. (Wheeler, supra, 22 Cal.3d at p. 282.)
It is the trial court which is best able to place jurors answers in context and draw meaning from all circumstances, including matters not discernable from the cold record. As we emphasized in People v. Johnson, supra, 30 Cal.4th 1302: [T]he trial judges unique perspective of voir dire enables the judge to have first-hand knowledge and observation of critical events. [Citation.] The trial judge personally witnesses the totality of circumstances that comprises the factual inquiry, including the jurors demeanor and tone of voice as they answer questions and counsels demeanor and tone of voice in posing the questions. [Citation.] The trial judge is able to observe a jurors attention span, alertness, and interest in the proceedings and thus will have a sense of whether the prosecutors challenge can be readily explained by a legitimate reason. . . . [] The appellate court, on the other hand, must judge the existence of a prima facie case from a cold record. An appellate court can read a transcript of the voir dire, but it is not privy to the unspoken atmosphere of the trial courtthe nuance, demeanor, body language, expression and gestures of the various players. [Citation.] (Id. at pp. 1320-1321, quoting Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 683-684.)[3]
Under our deferential standard, we consider whether substantial evidence supports the trial courts conclusions. (People v. Bonilla, supra, 41 Cal.4th at pp. 341-342.) Evidence is substantial if it is reasonable, credible and of solid value. (People v. Abilez (2007) 41 Cal.4th 472, 504; People v. Johnson (1980) 26 Cal.3d 557, 578.) Comparative juror analysis is a form of circumstantial evidence. (See Miller-El II, supra, 545 U.S. at p. 241.) The law has long recognized that particular care must be taken when relying on circumstantial evidence. For example, jurors in criminal cases are instructed that before they can rely on circumstantial evidence to find a defendant guilty, they must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. (Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 224.) This principle has been part of our jurisprudence since at least 1945. (See People v. Bender (1945) 27 Cal. 2d 164, 174-176, overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110.)
The rationale behind the rule is that, unlike direct evidence, circumstantial evidence does not directly prove the fact in question. Instead, circumstantial evidence may support a logical conclusion that the disputed fact is true. But information may often be open to more than one reasonable deduction. Thus, care must be taken not to accept one reasonable interpretation to the exclusion of other reasonable ones. With regard to an appellate courts review of circumstantial evidence, we have observed: If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 933.) This same principle of appellate restraint applies in reviewing the circumstantial evidence supporting the trial courts factual findings in a Wheeler/Batson holding.
E. The Trial Courts Ruling in This Case
Defendant argues that the prosecutors proffered explanations for exercising a peremptory challenge against C.A. were pretexts designed to disguise racial prejudice. The trial court found to the contrary. That finding is reasonable and supported by substantial evidence.
The prosecutors first stated reason for challenging C.A. was her reaction to receiving a traffic ticket. When the prosecutor asked whether any of the prospective jurors ever had a hostile, confrontational, [or] adverse contact with law enforcement, C.A. was the lone juror who raised her hand. In response to the prosecutors question as to whether C.A. felt the officer was impolite, C.A. said, Well, no one ever feels they deserve a ticket. She replied yeah when the prosecutor asked whether C.A. felt the officer was shading the truth a little bit. When asked whether she felt she deserved the ticket, C.A. said, I didnt know if I deserved [the ticket] or not, so I just went along with it.
In explaining his challenge, the prosecutor stated that while C.A. did not depict the incident as adversarial and wanted to take the officers word for it, he felt there was probably a lot more to it than that.
By raising her hand to answer the prosecutors question, C.A. necessarily identified the experience as negative. C.A. stated her belief that the officer had not been entirely truthful during the incident. We have repeatedly upheld peremptory challenges made on the basis of a prospective jurors negative experience with law enforcement. (People v. Turner, supra, 8 Cal.4th at p. 171; People v. Panah (2005) 35 Cal.4th 395, 442.) Moreover, C.A.s answers could be fairly characterized as equivocal, supporting the prosecutions inference that C.A. was not completely forthcoming about the incident and may have harbored some resentment. Even though defendant characterizes C.A.s answers as showing her respect for law enforcement by giving the officer the benefit of the doubt, possible contrary inferences do not undermine the genuineness of the prosecutors explanation.
As to the prosecutors second reason for excusing C.A, he noted that her brother had been killed 10 or 11 years earlier in a gang-related murder.[4] The prosecutor stated that it was his experience that victims of gangs, not always by any means, but quite often are themselves gang members, and so he was concerned about negative repercussions for defendants case.
Defendant complains that the prosecutor never confirmed that C.A.s brother-in-law was a gang member, or explained how such an association would affect C.A.s performance as a juror. However, the prosecutor was entitled to rely on this concern. Gang affiliation was at issue in the trial. Defendant was charged with a violation of carrying a loaded firearm in public while an active member of a criminal street gang ( 12031, subd. (a)(2)(C)), and the venire panel was advised that theres going to be some gang evidence.[5] As the Court of Appeal stated: The prosecutors concern about possible negative repercussions of the gang-related homicide in C. A.s family arose from his own experience that victims of gangs tend to be members of gangs. Like his trepidation about her negative experience with law enforcement, his wariness about a possible family gang connection was comprehensible, neither discriminatory nor implausible, and at variance with nothing in the record. An advocate is permitted to rely on his or her own experiences and to draw conclusions from them. We have recognized that even hunches and idiosyncratic reasons may support a peremptory challenge. (People v. Turner, supra, 8 Cal.4th at p. 165.) As noted above, the question is not whether a different advocate would have assessed the risk differently, but whether this advocate was acting in a constitutionally prohibited way.
Additionally, defendant argues that the timing of the prosecutors challenge to excuse C.A. is suspicious because it followed the striking of Black panelist L.F. by defense counsel, thereby resulting in no Blacks serving on the jury. However, the prosecutor had accepted the panel when it contained L.F. At the Wheeler/Batson hearing, the prosecutor advised that he would have been fine with L.F. on the jury. The prosecutors representation finds support in the record. L.F. stated in voir dire that he is a boyhood friend of the one of the officers listed as a witness in the case, and played sports with Curtis Rufus, the victim of the attempted murder. The prosecutors acceptance of the panel containing a Black juror strongly suggests that race was not a motive in his challenge of C.A. (People v. Kelly (2007) 42 Cal.4th 763, 780; People v. Cornwell (2005) 37 Cal.4th 50, 69-70.)
An analysis of the record demonstrates that substantial evidence supports the trial courts finding that the prosecutors proffered reasons were not pretextual. Defendants reliance on comparative juror analysis does not undermine this conclusion. The Court of Appeal, relying on our practice enunciated in People v. Johnson, supra, 30 Cal.4th at p. 1322, declined defendants request to conduct a comparative juror analysis. Consistent with our conclusion regarding the effect of Miller-El II, supra, 545 U.S. 231and Snyder, supra, 128 S.Ct. 1203, we undertake that comparison here. It does not demonstrate purposeful discrimination.
Defendant compares C.A. to Juror No. 482753, one of the four Hispanics seated on the jury. Juror No. 482753 described an incident two years earlier in which he and his brother took away their mothers car keys because she had been drinking and wanted to drive. The juror explained that his mother called the police, who responded and saw that my mother was drunk, so they assumed we had been drinking. The officers told the juror and his brother to return the keys, but they refused. The brother stepped forward and explained that they were not trying to cause problems. One of the officers pulled out his club and told the brothers they would be sprayed with Mace if they did not return the keys. The juror said there were two or three officers present and he thought the police were getting a little too crazy. When the court inquired of his present feelings about the incident, the juror responded, I was about ready to write a letter to the editor. I could have smeared them pretty bad, but I chose not to do it. The juror explained, I figured theyre trying . . . to handle that situation without getting hurt. The juror told the court he could set aside the incident and not allow it to impact his deliberation in defendants case.
Defendant complains that Juror No. 482753s dissatisfaction with the police concerning this incident is far more significant than C.A.s comments about getting a traffic ticket. However, the prosecutors hesitation regarding C.A. was based on his sense of her possible lingering resentment. On the other hand, Juror No. 482753 stated that he realized that the police were acting out of concern for their safety and so he did not complain about their conduct. Contrary to defendants assertion, these two panelists were not similarly situated on this issue.
Juror No. 482753 also stated that his cousin shot and killed someone when he was 16 years old. The cousin was convicted and had to go to jail, but [h]es out now, and hes doing great. The juror stated that his cousin was treated fairly by the police and courts, and it was a bad situation, but it turned out to be a good situation for him. Defendant argues that the prosecutor apparently was not concerned that Juror No. 482753s cousin might be a gang member because he never asked about gang status. But in light of the jurors comments about his cousins past experience and present circumstances, the prosecutor could have found such question unnecessary.
Further, Juror No. 482753 stated that he was a high school acquaintance of one of the police officers identified as a potential witness in defendants case. The juror described the officer as a really good guy. This factor would likely have been significant in the prosecutors decision to retain the juror and further distinguishes this juror from C.A. The prosecutions acceptance of this juror demonstrates another aspect of jury selection. While an advocate may be concerned about a particular answer, another answer may provide a reason to have greater confidence in the overall thinking and experience of the panelist. Advocates do not evaluate panelists based on a single answer. Likewise, reviewing courts should not do so.[6]
Defendant attempts to compare C.A. with panelist E.T., who was in the second group of 21 panelists questioned. During questioning of panelists by the court, E.T. stated that his son was accused of being a gang member, and he was exonerated. Defendant argues that despite this information, the prosecutor apparently did not have the same concerns about E.T. that he had about C.A. Defendants argument is speculative. E.T. was never designated as one of the 13 prospective jurors subject to peremptory strikes, and thus we have no idea whether the prosecutor would have kept or challenged E.T. This aspect of review compares panelists who were struck with those who were allowed to serve or were passed by the prosecution before being ultimately struck by the defense. (See Miller-El II, supra, 545 U.S. at pp. 241 & 245, fn.4.)
Finally, we note that in examining the entire record, there is no other evidence that the prosecutions challenges were improperly based on race. There is no indication that the prosecutor or his office relied on racial factors. There is no evidence of procedural manipulation, deceptive questioning, or any of the other signs of constitutional violation like those present in Miller-El II. Based on the totality of the evidence, the prosecutors stated reasons for excusing C.A. are fully supported. Defendant has failed to demonstrate those reasons were not genuine.
DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CONCURRING OPINION BY BAXTER, J.
I concur in the majority opinion. I write separately, however, to emphasize two points. First, the United States Supreme Court appears to have reserved the issue whether reliance on comparative juror analysis may be deemed procedurally defaulted if not raised at trial. Second, if the high court were to subsequently hold that state courts may enforce a procedural default rule as such, nothing in todays majority opinion would preclude this court from doing so in the future.
In Snyder v. Louisiana (2008) __ U.S. __ [128 S.Ct. 1203] (Snyder), the United States Supreme Court conducted a comparative juror analysis as part of its evaluation of the petitioners claim that the prosecution impermissibly used a peremptory challenge to exclude a prospective juror on the basis of race. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); see People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) In conducting the analysis, despite the fact that none had been requested or performed at trial, the high court stated in a footnote: The Louisiana Supreme Court did not hold that petitioner had procedurally defaulted reliance on a comparison of the African-American jurors whom the prosecution struck with white jurors whom the prosecution accepted. On the contrary, the State Supreme Court itself made such a comparison. See [State v. Snyder (La. 2006)] 942 So.2d 484, 495-496. (Snyder, supra, __ U.S. at p. __, fn. 2 [128 S.Ct. at p. 1211, fn. 2].)
As the majority observes, the meaning of the Snyder footnote is unclear, and it does not necessarily suggest the United States Supreme Court would honor a state procedural rule requiring that comparative juror analysis be conducted first in the trial court or be deemed defaulted or forfeited. (Maj. opn., ante, at p. 19, fn. 14.) Nonetheless, the footnote may reasonably be viewed as reflecting the high courts intent to reserve this issue for future decision.
In the event the Supreme Court were to defer to state courts that impose a procedural bar when a defendant relies on comparative juror analysis for the first time on appeal, it bears emphasis that our decision today, which follows the high courts lead in Snyder, supra, __ U.S. __ [128 S.Ct. 1203], and Miller-El v. Dretke (2005) 545 U.S. 231, would not hinder our future consideration and application of a procedural default rule.
In this regard, the majority identifies a number of valid and pragmatic considerations that support application of a procedural default rule in cases where the defendant fails to request a comparative juror analysis at trial. Most notably, a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In that situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable. (Maj. opn., ante, at p. 19, quoting Snyder, supra, __ U.S. at p. __ [128 S.Ct. at p.1211].) Indeed, even if the trial court happens to conduct a reasonably thorough exploration of the subject matter as to which similarities are alleged, there are a variety of factors and considerations that go into a lawyers decision to select certain jurors while challenging others that appear to be similar, for example, [T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. (Maj. opn., ante, at p. 23, quoting People v. Johnson (1989) 47 Cal.3d 1194, 1220.) When a comparative juror analysis is undertaken for the first time on appeal, the record is likely to reflect none of these other considerations.
Moreover, requiring a defendant to seek a comparative analysis at trial promotes the policy of judicial economy and fairness in at least two ways. First, if the defendant perceives that certain unchallenged jurors are similarly situated to prospective jurors who were challenged, then alerting the trial court to that state of affairs would permit the court to take immediate curative action and avoid the time and expense of reversal and retrial if it finds the defendants complaint meritorious. (See Watkins v. State (Tex.Crim.App. 2008) 245 S.W.3d 444, 457-458 (conc. opn. of Keller, P.J.).) Second, a trial court that is called upon to conduct a comparative analysis could ensure that the prosecution is afforded a fair opportunity both to state its reasons for challenging a prospective juror and to explain its failure to challenge any alleged similarly situated jurors. This minimizes the prospect of appellate speculation in the evaluation of a Wheeler/Batson claim. (See id. at p. 458.)
In sum, the United States Supreme Court has not yet addressed whether a state court may deem a defendant procedurally barred on appeal from relying on juror comparisons to support a Wheeler/Batson third stage claim, if the defendant did not rely on such comparisons at trial. Given this circumstance, I fully agree that, for the time being, we should view the high courts recent decisions as requiring reviewing courts to perform comparative juror analysis if requested and if the record is adequate to permit comparisons, even when such an analysis was not conducted at trial.
BAXTER, J.
I CONCUR:
CHIN, J.
CONCURRING OPINION BY MORENO, J.
I agree with the majority that appellate courts should, under appropriate circumstances, engage in comparative juror analysis as a means of detecting the discriminatory use of peremptory challenges in violation of People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79. Miller-El v. Dretke (2005) 545 U.S. 231 and Snyder v. Louisiana (2008) __ U.S. __ [128 S.Ct. 1203] (Snyder) teach us implicitly that however problematic it may be to conduct such comparative analysis for the first time on appeal, it is even more problematic to categorically refuse to conduct such analysis, thereby permitting some Wheeler/Batson violations to go undetected. Indeed, because those who discriminate rarely admit to discrimination, comparative analysis has been widely used in a variety of fields to ferret out the unlawful discrimination that hides behind pretext. (See, e.g., Schwemm, Housing Discrimination: Law and Litigation (2007 ed.) 32.2, pp. 32-4 to 32-5 [noting the common use of Black and White testers to determine whether Black renters and home buyers are subject to discrimination].) It is therefore unsurprising the United States Supreme Court has employed the use of such comparative analysis as a means of detecting unlawful exclusion of persons from jury service on the basis of race. I write separately to clarify the circumstances under which such comparative analysis is appropriate.
The United States Supreme Court recently emphasized that the deference appellate courts should accord to trial court decisions regarding Batson challenges is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike. (Snyder, supra, __ U.S. at p. __ [128 S.Ct. at p. 1209].) As the majority convincingly explains, peremptory challenges may turn upon perceptions not available to someone reading the cold record the tone of voice, facial expression, body language, etc., of the prospective juror. When a trial judge validates a prosecutors challenge based on the prospective jurors demeanor, and makes clear that such demeanor is the primary reason for validating the challenge, then it is difficult to imagine any circumstance under which an appellate court would second-guess that judgment.
On the other hand, when the challenge is made based on factors other than demeanor, or, in the case of Snyder, the challenge is based both on demeanor and nondemeanor considerations, and the trial court does not state or imply on the record that the challenge based on demeanor is credible, then appellate courts may use comparative juror analysis to test the validity of the prosecutors proffered challenges, comparing the supposedly objectionable characteristics of the rejected prospective juror with the characteristics of seated jurors. (Snyder, supra, __ U.S. at pp. ___ [128 S.Ct. at pp. 1209-1213].) Such analysis, often in combination with other indications of bias, such as the inherently dubious nature of the explanation for the challenge, or an apparent pattern of excluding minority jurors, may be a legitimate basis for an appellate courts conclusion that there was a Wheeler/Batson violation in the court below. (Ibid.)
In the present case, as the majority recounts, one reason the prosecutor gave for peremptorily challenging Prospective Juror C.A. is that her brother-in-law had been killed 10 or 11 years earlier in a gang-related murder and that this could have meant that her brother-in-law was himself a gang member, although the prosecutor made no inquiry to confirm that. Defendant challenges the inherent dubiousness of this reasoning, buttressing his argument by pointing to the possible gang affiliation of Juror No. 482753s cousin, who had shot and killed someone when he was 16 years old. Were it the case that the prosecutors only reason for excluding C.A. was her brother-in-laws possible gang affiliation, I might agree with defendants argument. However, as the majority explains, other reasons for excluding C.A., most particularly the fact that she was the only one to raise her hand in response to the question of whether a prospective juror had a hostile, confrontational or adverse contact with law enforcement, provide sufficient justification for the peremptory challenge. Moreover, like the majority, I agree that Juror No. 482753 demonstrated a more positive attitude toward law enforcement, thereby undermining defendants argument that he was comparable to C.A. On this basis, I concur in the judgment.
MORENO, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Lenix
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Unpublished Opinion XXX NP opn. filed 10/13/06 5th Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S148029
Date Filed: July 24, 2008
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Court: Superior
County: Kern
Judge: Arthur E. Wallace
__________________________________________________________________________________
Attorneys for Appellant:
A. M. Weisman, under appointment by the Supreme Court, for Defendant and Appellant.
Cliff Gardner; Lawrence A. Gibbs; and Elisabeth Semel for California State Conference of the National Association for the Advancement of Colored People, Rabbi Allen B. Bennett, Dr. James A. Donahue, Suleiman Ghali, Rev. Cannon Charles Gibbs and Rev. Dr. Cecil L. Murray as Amici Curiae on behalf of Defendant and Appellant.
Michael Ogul, Chief Deputy Public Defender (Solano) and Denise Graff, Deputy Public Defender (Orange) for California Public Defenders Association and California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General, Donald de Nicola, Deputy State Solicitor General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Stan Cross, Janis S. McLean, David A. Rhodes, Janet E. Neeley and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
A. M. Weisman
Law Office of A.M. Weisman
P.O. Box 4236
Diamond Bar, CA 91765-0236
(909) 622-2677
Daniel B. Bernstein
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5171
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[1] Our holding today does not implicate claims of error at Wheeler/Batsons first stage. As our case law establishes, [t]he high court [in Miller El II] did not consider whether appellate comparative juror analysis is required when the objector has failed to make a prima facie showing of discrimination. [Citation.] A fortiori, Miller-El [II] does not mandate comparative juror analysis in a first-stage Wheeler-Batson case when neither the trial court nor the reviewing courts have been presented with the prosecutors reasons or have hypothesized any possible reasons. (People v. Bell, supra, 40 Cal.4th at p. 601; accord, People v. Howard (2008) 42 Cal.4th 1000, 1020; People v. Bonilla, supra,41 Cal.4th at p. 350.)
[2] It is true that under Code of Civil Procedure section 223 a criminal trial court may limit counsels questioning of prospective jurors and may specify the maximum amount of time that counsel for each party may question an individual juror, or may specify an aggregate amount of time for each party, which can then be allocated among the prospective jurors by counsel. The exercise of discretion by trial judges in conducting voir dire is accorded considerable deference by appellate courts. (People v. Taylor (1992) 5 Cal.App.4th 1299, 1313.) Nevertheless, in exercising that discretion, trial courts should seek to balance the need for effective trial management with the duty to create an adequate record and allow legitimate inquiry. We express no opinion regarding appropriate voir dire procedures in those cases occurring before Code of Civil Procedure section 223 was amended, effective 2001. (Stats. 2000, ch. 192, 1.)
[3]People v. Johnson concerned the first Wheeler/Batson stepwhether the defendant had established a prima facie case of discrimination. Nevertheless, we stated that concerns about the inability of a reviewing court to judge the dynamics of jury selection apply equally in assessing the prosecutors credibility at the third Wheeler/Batson step. (People v. Johnson, supra, 30 Cal.4th at p. 1320.)
[4] The prosecutor misspoke. C.A.s brother-in-law was killed by gang members.
[5] Defendant later stipulated to being an active participant in a street gang and aiding and abetting members of that gang in committing crimes.
[6] Additionally, we observe that the prosecutors decision not to exercise a peremptory challenge against this Hispanic juror undermines defendants trial court claim that the prosecutor improperly excluded minority panelists. (People v. Kelly, supra, 42 Cal.4th at p. 780; People v. Cornwell, supra, 37 Cal.4th at pp. 69-70.)
