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
__________________________________ )
Here we determine whether an appellate court must perform a comparative juror analysis for the first time on appeal to evaluate whether the advocates stated reasons for peremptorily challenging prospective jurors are truthful or pretextual. (See People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson.) The United States Supreme Court conducted such a comparative analysis for the first time on appeal in Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El II)[1]and again recently in Snyder v. Louisiana (2008) __ U.S. __, 128 S.Ct. 1203 (Snyder). When read in their entirety, those cases stand for the unremarkable principle that reviewing courts must consider all evidence bearing on the trial courts factual finding regarding discriminatory intent. Comparative juror analysis is evidence that, while subject to inherent limitations, must be considered when reviewing claims of error at Wheeler/Batsons third stage when the defendant relies on such evidence and the record is adequate to permit the comparisons. In those circumstances, comparative juror analysis must be performed on appeal even when such an analysis was not conducted below.
Here, defendants Wheeler/Batson motion was properly denied. Accordingly we affirm the judgment of the Court of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
After two mistrials, defendant was convicted of crimes arising from a fatal shooting in Bakersfield.[2]Defendant shot and killed Lamar Rufus. He also shot at and missed Lamars cousin, Curtis Rufus. The jury convicted him of numerous crimes and enhancements, including first degree murder and attempted murder. (Pen. Code 187; 664/187.)[3]Defendant was sentenced to a total indeterminate term of 50 years to life in prison, and consecutive determinate terms totaling 21 years.
Because the sole issue presented in this appeal concerns jury selection, we focus on that process. California trial judges have broad discretion over the specific manner in which voir dire is conducted (see Code Civ. Proc., 223), and practices vary widely. In some courts 12 panelists are selected and questioned. If a panelist is excused for cause or by peremptory challenge, a new panelist is called. Other courts screen larger groups of prospective jurors. Some trial judges do a great deal of questioning, others very little. Some courts place time limits on counsels questioning and either require or permit counsel to ask group questions. Practices vary in terms of which counsel questions panelists first and who exercises the first peremptory challenge. Advocates who pass an opportunity to challenge retain the option to challenge a seated panelist after an opponent exercises a challenge. The jury is not considered mutually accepted until both sides pass in succession or exhaust their challenges.
In this case, the court announced that it would select 13 jurors. At the end of the trial, one of the 13 would be selected by lot and designated as the alternate. The court conducted jury selection in the following manner. From the entire venire panel, a group of 21 panelists was called and questioned by the court and counsel.[4] After panelists were excused for cause, the court designated 13 of the remaining panelists as the group subject to peremptory challenges. As a member of this group was challenged, his or her seat was filled by the panelist seated next in order until all members of the original group of 21 panelists were seated or excused. The court then called 21 new panelists and the process began again until both counsel accepted the panel by passing, or exercising no more peremptory challenges.
After the first group of 21 panelists had been questioned, one juror was excused by the court and the prosecutor then passed for cause. The defense requested that five panelists be excused for cause; the court excused two. The prosecutor then used peremptory challenges against one White and two Hispanic panelists. Alternating with the prosecutor, defense counsel also exercised three peremptory challenges. At this point 12 panelists were seated in the jury box, including L.F., a Black man.
The clerk then called another 21 panelists whom the court and counsel questioned. Among this group was C.A., a Black woman. Defense counsel questioned C.A. first. In response to his questions, C.A. stated she did not know any of the names on the witnesses list. When asked whether anything about the nature of the case concerned her, C.A. stated the murder aspect. Defense counsel then asked her if she understood that charges do not equate with guilt and that a determination of guilt must be based on evidence, to which C.A. replied yes. C.A. also stated that she could evaluate the credibility of witnesses and treat all witnesses the same.
The prosecutor subsequently asked C.A., [Y]ou had indicated to [defense counsel] that you were particularly troubled by some of the charges, especially the murder charges; is that correct? C.A. answered yes. The prosecutor then inquired, I know anybody, of course, would be troubled by charges like that, but is there somethingif I can askis there something beyond that. C.A. replied, The fact that someone lost a life. The prosecutor then asked, Have you yourself had anyone close to you involved in something like that? C.A. answered that her sisters husband, to whom she was close, had been murdered 10 or 11 years ago. When asked if the murder was gang related, C.A. answered yes. The prosecutor asked which gang committed the offense. C.A. said the murder had occurred in Los Angeles County and no one had ever been arrested. Asked if she had any trouble with law enforcement for failing to make an arrest, C.A. said no. The prosecutor asked, Was it one of those situations where basically nobody had an idea who did it? C.A. said yes, and that she would not hold the experience against defendant. Asked whether there was anything else the parties needed to know about her brother-in-laws murder or any similar situations, C.A. said no.
Later, the prosecutor asked the entire venire: Has anybody here had any contacts with law enforcement that were hostile, confrontational, adverse, however you want to describe it, that might carry over into what were going to do here in this courtroom? Anybody at all? Traffic ticket you didnt feel you deserved? C.A. was the sole juror to reply and stated that she had gotten a traffic ticket. When asked whether the officer was impolite or anything like that, C.A. answered, No. Well, no one ever feels they deserve a ticket. That was all. The prosecutor asked, You feel that maybe he was a little shading the truth a little bit in it? C.A. answered, Yeah. The prosecutor then asked, Did you feel you deserved it? C.A. replied, I didnt know if I deserved it or not, so I just went along with it.
The court on its own motion excused two panelists in the second group of 21. The prosecutor passed for cause and the court sustained one of defense counsels two challenges for cause. A member of the second group was added to the 12 panelists remaining from the first group. The next peremptory challenge was with the prosecutor, who accepted the panel. Defense counsel exercised his fourth peremptory challenge against L.F., the Black panelist, and the prosecutor again accepted the panel. Defense counsel exercised his fifth peremptory challenge, and the prosecutor used his fourth peremptory challenge against a Hispanic panelist. Defense counsel then made a Wheeler motion,[5]which the court reserved until the completion of voir dire.
C.A. was then one of the designated 13 panelists subject to peremptory challenge. After defense counsel exercised his sixth peremptory challenge, the prosecutor struck C.A. Defense counsel exercised a seventh peremptory challenge, and both sides accepted the panel. Both sides left unused a substantial number of their allotted peremptory challenges.
The jury was composed of six Caucasians, four Hispanics, and two Filipinos. No Blacks served as jurors or alternates. The record contains no information on whether any Blacks other than C.A. and L.F. participated in the venire.[6]
At the Wheeler/Batson hearing, defense counsel pointed out that the prosecutor had excluded three Hispanics and one Black, and claimed the prosecutor was excluding minorities from the jury, particularly Hispanics. As to the three Hispanic panelists, the prosecutor provided reasons which are not in dispute here.
Regarding C.A., the prosecutor stated that his memory was clearer as to later prospective jurors, but stated, I was particularly concerned about her statement about the traffic ticket. When I was asking about uncomfortable run-ins with the police, she was actually the only juror who raised her hand. She indicated it was a traffic ticket, but then seemed to indicate that it wasnt adversarial and said that she didnt know the officer was lying, and just kind of didnt fight it because she wanted to take his word for it. Quite honestly, your Honor, I thought there was probably a lot more to it than that, and I felt uncomfortable with her because of that. [] I was also somewhat concerned with the fact that her brother [sic] was involved in a gang-related homicide, because its been my experience more often than not that people who are themselves victims of gangs, not always by any means, but quite often are themselves gang members, and I was concerned with any kind of negative repercussions my case might have in that regard, as well.
Defense counsel did not respond. Addressing all four peremptory challenges, the court stated: Based on the representations that I have from [the prosecutor] . . . I do not find those challenges to be motivated because of the fact that any of the jurors excused were members of a minority group but rather for other reasons not motivated by any kind of ethnicity or membership in any particular minority group, so Im going to deny the Wheeler motion.
On appeal, defendant limited his Wheeler/Batson claim to the challenge of C.A., the Black panelist, arguing the prosecutors stated reasons were pretextual. The Court of Appeal rejected his argument, observing that the prosecutors reasons for his challenge were comprehensible, neither discriminatory nor implausible, and at variance with nothing in the record.
In an ancillary argument, defendant asserted that the Miller-El cases impose a duty on reviewing courts to conduct comparative juror analysis to evaluate the credibility of the prosecutors reasons for excusing minority prospective jurors. Defendant claimed this duty applies even when a comparative juror analysis was neither requested by defense trial counsel nor otherwise performed by the trial court. The Court of Appeal rejected defendants argument. Relying on People v. Johnson (2003) 30 Cal.4th 1302, overruled on other grounds in Johnson v. California (2005) 545 U.S. 162, the Court of Appeal concluded that comparative juror analysis for the first time on appeal is not constitutionally compelled.
II. DISCUSSION
At the time of the Supreme Courts opinion in Miller-El II, supra, 545 U.S. 231, our practice with regard to conducting comparative juror analysis for the first time on appeal was described in People v. Johnson, supra, 30 Cal.4th 1302: When the objecting party presents comparative juror analysis to the trial court, the reviewing court must consider that evidence, along with everything else of relevance, in reviewing, deferentially, the trial courts ruling. When such an analysis was not presented at trial, a reviewing court should not attempt its own comparative juror analysis for the first time on appeal . . . . (Id. at pp. 1324-1325.) This practice derived from our view that engaging in comparative juror analysis for the first time on appeal is unreliable and inconsistent with the deference that must be given trial courts. (Id. at pp. 1318, 1324.) We stated: A comparison of the jurors answers is unreliable when divorced from the context of the trial. A trial court, but not a reviewing court, is able to place the answers into context and draw meaning from all the circumstances, including matters not discernable from the record. (Id. at p. 1320.)
Following the Miller-ElII decision, we have assumed without deciding that a comparative juror analysis should be conducted for the first time on appeal with regard to Wheeler/Batsons third stage. (See People v. Lewis (2008) 43 Cal.4th 415, 472; People v. Zambrano (2007) 41 Cal.4th 1082, 1109; People v. Stevens (2007) 41 Cal.4th 182, 196; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1017; People v. Ledesma (2006) 39 Cal.4th 641, 679; People v. Avila (2006) 38 Cal.4th 491, 546; People v. Huggins (2006) 38 Cal.4th 175, 232; People v. Jurado (2006) 38 Cal.4th 72, 105; People v. Guerra (2006) 37 Cal.4th 1067, 1106; People v. Schmeck (2005) 37 Cal.4th 240, 270.) We now decide the issue.
A. The Wheeler/Batson Inquiry
Both the federal and state Constitutions prohibit any advocates use of peremptory challenges to exclude prospective jurors based on race. (Batson, supra, 476 U.S. at p. 97; Georgia v. McCollum (1992) 505 U.S. 42, 59; Wheeler, supra,22 Cal.3d at pp. 276-277.) Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (People v. Bonilla (2007) 41 Cal.4th 313, 341; People v. Avila, supra, 38 Cal.4th at p. 541.) Here we couch our discussion, both general and particular, in terms of a challenge to the prosecutors conduct. The principles, procedures and obligations, however, apply equally to all advocates.[7]
The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. (Rice v. Collins (2006) 546 U.S. 333, 338.) The three-step procedure also applies to state constitutional claims. (People v. Bonilla, supra, 41 Cal.4th at p. 341; People v. Bell (2007) 40 Cal.4th 582, 596.)
A prosecutor asked to explain his conduct must provide a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges. (Batson, supra, 476 U.S. at p. 98, fn. 20.) The justification need not support a challenge for cause, and even a trivial reason, if genuine and neutral, will suffice. (People v. Arias (1996) 13 Cal.4th 92, 136, italics added.) A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. (See People v. Turner (1994) 8 Cal.4th 137, 165; Wheeler, supra, 22 Cal.3d at p. 275.) Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection. (Purkett v. Elem (1995) 514 U.S. 765, 769) Certainly a challenge based on racial prejudice would not be supported by a legitimate reason.
At the third stage of the Wheeler/Batson inquiry, the issue comes down to whether the trial court finds the prosecutors race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutors demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy. (Miller-Ell I, supra, 537 U.S. at p. 339.)[8]In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the courts own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office who employs him or her. (See Wheeler, supra, 22 Cal.3d at p. 281.)
Review of a trial courts denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. (People v. Bonilla, supra, 41 Cal.4th at pp. 341-342.) We review a trial court's determination regarding the sufficiency of a prosecutors justifications for exercising peremptory challenges with great restraint. [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.] (People v. Burgener (2003) 29 Cal.4th 833, 864.)[9]
The United States Supreme Court has also emphasized that a state trial courts finding of no discriminatory intent is a factual determination accorded great deference. (Hernandez v. New York, supra, 500 U.S. at pp. 364-365.) Step three of the Batson inquiry involves an evaluation of the prosecutors credibility, [citation], and the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge. [Citation.] In addition, race-neutral reasons for peremptory challenges often invoke a jurors demeanor (e.g., nervousness, inattention), making the trial courts first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutors demeanor belies a discriminatory intent, but also whether the jurors demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie peculiarly within a trial judge's province, [citations], and we have stated that in the absence of exceptional circumstances, we would defer to [the trial court]. [Citation.] (Snyder, supra, 128 S.Ct. at p. 1208.)
B. The Miller-El II Decision
When Miller-El was tried for capital murder in a Texas state court, the United States Supreme Court had not yet decided Batson. Miller-El moved to strike the jury on the grounds that the prosecutions peremptory challenges to 10 of 11 Black members of the venire violated the equal protection clause. (Miller-El I, supra, 537 U.S. at p. 326.)[10]To meet the existing standard of Swain v. Alabama (1965) 380 U.S. 202, Miller-El sought to show the prosecutions conduct was part of a larger pattern of discrimination aimed at excluding Blacks from jury service. The trial court denied the motion. (Miller-El II, supra, 545 U.S. at p. 236.) Miller-El was subsequently found guilty and sentenced to death. (Ibid.)
The Texas Court of Criminal Appeals, the states criminal court of last resort, remanded the case to the trial court to apply the newly articulated Batson standard. Upon remand, the original trial court conducted a Batson hearing more than two years after the jury had been empanelled. (Miller-El I, supra, 537 U.S. at p. 329.) The court reviewed the voir dire record and permitted one of the prosecutors to provide reasons for previously unexplained peremptory challenges. The trial court accepted the prosecutions proffered reasons, which the judge called completely credible [and] sufficient as the grounds for a finding of no purposeful discrimination. (Miller-El II, supra, 545 U.S. at pp. 236-237.) The Texas Court of Criminal Appeals affirmed, finding ample support in the voir dire record for the prosecutors explanations. (Id. at p. 237.)
Miller-Els case shifted to the federal courts, without initial success. The federal district court denied habeas relief and the Fifth Circuit Court of Appeal blocked the appeal by denying a certificate of appealability. In Miller-El I, supra, 537 U.S. 322, the Supreme Court reversed, concluding the certificate of appealability should have issued. (Id. at p. 327.) Ultimately, the Fifth Circuit rejected Miller-Els claim on its merits. The Supreme Court again granted certiorari and again reversed. (Miller-El II, supra, 545 U.S. at p. 237.)
The Miller-ElII opinion reveals the case to be a troubling and blatant example of the way in which racism can infect the justice system. It also reflects the high courts commitment to eradicate this pernicious influence. Although noting that [f]or more than a century, this Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause (Miller-El II, supra, 545 U.S. at p. 238), the court nevertheless confronted a case in which it concluded that undeniably the states lawyers had selected and rejected jury panelists because of race. (Id. at p. 266.)
Miller-ElII was even more distressing because state and federal courts had repeatedly affirmed the defendants death sentence in the face of a powerful record of racism. (See Miller-El II, supra, 545 U.S. at p. 265.) The Supreme Court was clearly skeptical of the conclusions of these courts and legitimately so. After reviewing the entire record, the Supreme Court determined that the repeated findings by both the trial and appellate courts were utterly unsupported. The courts skepticism was reflected in its language. It noted, for example, that the record revealed incredible explanations by the prosecutors in a voir dire process replete with evidence of reliance on race (id. at p. 265); that [i]t blinks reality to deny that the State struck two Black panelists because of their race (id. at p. 266); and that the prosecutors belated explanation of one those challenges reeks of afterthought. (Id. at p. 246.) In a vigorous rebuke, the Supreme Court characterized the Fifth Circuits conclusion as unsupportable as the dismissive and strained interpretation of [Miller-Els] evidence that we disapproved when we decided Miller-El was entitled to a certificate of appealability. (Id. at p. 265.)
The Supreme Courts review was conducted under the Antiterrorism and Effective Death Penalty Act of 1996. Thus, relief was available only if the trial courts acceptance of the prosecutors explanations was an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (28 U.S.C. 2254(d)(2); Miller-El II, at supra, 545 U.S. at p. 240.) On review, the high court presumed the trial courts factual findings were correct and placed the burden on the defense to establish otherwise by clear and convincing evidence. (28 U.S.C 2254(e)(1); Miller-El II,at p. 240.) The court stated: The standard is demanding but not insatiable; as we said the last time this case was here, [d]eference does not by definition preclude relief. (Miller-El II, at p. 240, quoting Miller-El I, supra, 537 U.S. at p. 340.)
The Supreme Court undertook a review of the entire record consistent with Batsons teaching that all relevant circumstances may be relied upon in determining whether there had been purposeful discrimination. (Miller-El II, supra, 545 U.S. at p. 240.) It noted the bare statistics, in which the prosecutors used peremptory challenges to excuse nine of the 10 Blacks found qualified to serve. (Id. at pp. 240-241.) The court also took into account a remarkable Texas procedure known as the jury shuffle.[11] [E]ither side may literally reshuffle the cards bearing panel members names thus rearranging the order in which members of a venire panel are seated and thus reached for questioning. (Id. at p. 253.) Those panelists not examined before the end of the week are dismissed. (Ibid.) On two occasions when a number of Black panelists were seated at the front of the panel, the prosecutor reshuffled. (Id. at p. 254.) According to testimony, the district attorneys office admitted it had relied on the shuffling procedure in the past to manipulate the racial composition of juries. (Ibid.)
The record revealed that for decades before Miller-Els trial, Dallas County prosecutors had a specific policy of systematically excluding blacks from juries. (Miller-El II, supra, 545 U.S. at p. 263.) Although testimony on this point was conflicting, one county judge testified that his former supervisor in the district attorneys office told him that he would be fired if he allowed Blacks to serve as jurors. Defendant presented evidence that the district attorneys office gave its prosecutors a manual, known as the Sparling Manual, written in 1968 by a prosecutor who also became a judge. The manual outlined reasons for excluding minority panelists from jury service. The manual remained in circulation until 1976 or later and was available to at least one of Miller-Els prosecutors. (Id. at p. 264.) The court concluded that prosecutors took their cues from this manual, as shown by their notes recording the race of each prospective juror. (Id. at p. 266.) At oral argument the state claimed these notations could have been made to avoid a Batson violation. But the court pointedly observed: Batson, of course, was decided the month after Miller-El was tried. (Id. at p. 264, fn. 38, italics added.)[12]
The state offered a variety of reasons for excusing the Black panelists. The prosecutions credibility in asserting those reasons was the key question. The record of voir dire obliterated any semblance of truthfulness. In addition to the factors discussed above, the Supreme Court pointed out that prosecutors used a line of questioning admittedly designed to create cause to strike. (Miller-El II, supra, 545 U.S. at p. 261.) Prosecutors asked panelists to state the minimum sentence they would impose for murder. Before answering, 94 percent of White panelists were told that the statutory minimum was five years. Just over 10 percent of Black panelists were given this same information. If a Black panelist responded with a term that was above the five-year minimum, the prosecutor, while normally preferring tough jurors, would rely on this answer to justify a strike. (Ibid.)
The Supreme Court characterized the questioning as trickery and manipulative. (Miller-El II, supra, 545 U.S. at p. 261.) Prosecutors sought to explain their disproportionate use of this punishment ruse on Black panelists. (Id. at p. 262, fn. 34.) They claimed that use of the manipulative script was not based on a panelists race but on opposition or ambivalence to the death penalty reflected in questionnaire or voir dire responses. (Id. at pp. 261-262 & fns. 34-35.) The court tested that explanation against the record, and found that it flatly fail[ed] to explain why most White panelists who expressed opposition or ambivalence were never subjected to the trick question. (Id. at p. 262.)
Other evidence considered by the court, and at issue in this appeal, was a comparative juror analysis in which the responses of two excused Black panelists were compared to the responses of non-Black panelists who were allowed to serve. (Miller-El II, supra, 545 U.S. at pp. 241-252.) Specifically, as to panelist Billy Jean Fields, the prosecutor claimed he used his peremptory challenge because Fields said that he could only give death if he thought a person could not be rehabilitated. (Id. at p. 243.) In fact, the record showed that the prosecutor mischaracterized Fieldss testimony and that Fields unequivocally stated that he could impose the death penalty regardless of the possibility of rehabilitation. (Id. at p. 244.) Thus, the prosecutors purported reason was starkly contradicted by the record. The court pointed out that other White panelists were accepted by the prosecution with no evident reservations, even though these panelists expressed concerns about imposing death when rehabilitation might be possible. (Ibid.) Further, contrary to the prosecutors claimed concern on this topic, he asked no followup or clarifying questions when nonminority panelists gave answers that raised the topic. (Id. at pp. 244-245.)
A second Black panelist, Joe Warren, was asked what he thought the death penalty accomplished. Warren replied, in essence, that he had mixed feelings because while the death penalty might deter crime, it might also relieve a murderer of the suffering he would endure by serving a lengthy prison term. (Miller-El II, supra, 545 U.S. at pp. 247-248.) At trial, the prosecution did not mention these remarks when it excused Warren, but at the Batson hearing two years later the prosecution identified these inconsistent responses as the reason for the challenge. (Id. at p. 248.) The Supreme Court observed that, while on its face, the prosecutors explanation seemed reasonable, its plausibility is severely undercut by the prosecutors failure to object to at least four non-Black jurors who also stated that life in prison was a harsher punishment. (Ibid.) As to Warren, the court stated: The whole of the voir dire testimony subject to consideration casts the prosecutions reasons for striking Warren in an implausible light. Comparing his strike with the treatment of panel members who expressed similar views supports a conclusion that race was significant in determining who was challenged and who was not. (Id. at p. 252.)[13]
The Supreme Court emphasized that the case for discrimination went beyond the comparative juror analysis to include a broader pattern of practice during the jury selection: The prosecutions shuffling of the venire panel, its enquiry into views on the death penalty, its questioning about minimum acceptable sentences: all indicate decisions probably based on race. Finally, the appearance of discrimination is confirmed by widely known evidence of the general policy of the Dallas County District Attorneys Office to exclude black venire members from juries at the time Miller-Els jury was selected. (Miller-El II, supra, 545 U.S. at p. 253.) The court acknowledged that at some points the significance of the evidence was open to judgment calls, but when this evidence on the issues raised is viewed cumulatively its direction is too powerful to conclude anything but discrimination. (Id. at p. 265.)
C. The Snyder Decision
Almost three years after its decision in Miller-El II, the United States Supreme Court in Snyder once again performed a comparative juror analysis not previously conducted in the trial court. In Snyder, the prosecutor exercised peremptory challenges against all five Black panelists. (Snyder, supra, 128 S.Ct. at p. 1207.) The Supreme Court considered the prosecutors reasons for challenging one of those panelists, Jeffrey Brooks. In the first phase of jury selection, the court inquired of panelists whether jury service would result in extreme hardship. Brooks explained that he was a college senior who needed to complete his student-teaching requirement to graduate and expressed concern that jury service would cause him to miss classes. The court contacted the university dean, who gave assurances that he would work with Brooks to make up classes. After receiving this information, Brooks expressed no further concern and the prosecutor did not question him further on the issue. (Id. at pp. 1209-1210.)
In explaining his peremptory challenge against Brooks, the prosecutor offered two race-neutral reasons. First, he stated that Brooks appeared nervous throughout the voir dire questioning. (Snyder, supra, 128 S.Ct. at p. 1208.) Second, the prosecutor claimed to be apprehensive that Mr. Brooks, in order to minimize the student-teaching hours missed during jury service, might have been motivated to find petitioner guilty, not of first-degree murder, but of a lesser included offense because this would obviate the need for a penalty phase proceeding. (Id. at p. 1210.) Defense counsel disputed both explanations and the trial court ruled: All right. Im going to allow the challenge. Im going to allow the challenge. (Id. at p. 1208.) The trial and penalty phases concluded two days after Brooks was struck. (Id. at p. 1210.)
As to the prosecutors first explanation, the Supreme Court noted that nervousness cannot be shown from a cold record. Thus, deference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike. (Snyder, supra, 128 S.Ct. at p. 1209.) The trial court in Snyder however, responded to the prosecutors two proffered reasons by simply allowing the challenge without explanation. Thus the high court would not presume that the trial judge credited the prosecutors explanation of nervousness. (Id. at p. 1209.)
Regarding the second proffered reason the Supreme Court characterized the prosecutors explanation as highly speculative. (Snyder, supra, 128 S.Ct. at p. 1210.) The court also stated, Perhaps most telling, the brevity of petitioners trialsomething that the prosecutor anticipated on the record during voir diremeant that serving on a jury would not have seriously interfered with Mr. Brooks ability to complete his required student teaching. (Ibid., fn omitted.)
The Supreme Court additionally considered evidence of comparative juror analysis in evaluating the prosecutors second reason: The implausibility of this explanation is reinforced by the prosecutors acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks. (Snyder, supra, 128 S.Ct. at p. 1211.) Before undertaking its analysis the court cautioned: We recognize that a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In that situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable. In this case, however, the shared characteristic, i.e., concern about serving on the jury due to conflicting obligations, was thoroughly explored by the trial court when the relevant jurors asked to be excused for cause. (Ibid.)[14]
The Supreme Court noted that White juror Roland Laws, a self-employed general contractor, offered strong work and family reasons as to why jury service would cause him hardship. (Snyder, supra, 128 S.Ct. at p. 1211.) The Supreme Court observed that while these obligations seem[ed] substantially more pressing than those of Mr. Brooks, the prosecution declined to use a peremptory challenge to strike him. (Ibid.) If the prosecution had been sincerely concerned that Mr. Brooks would favor a lesser verdict than first-degree murder in order to shorten the trial, it is hard to see why the prosecution would not have had at least as much concern regarding Mr. Laws. (Ibid.)
The court noted the circumstances of another White juror who twice addressed the court during voir dire about important work commitments. The juror advised that in order to serve he would have to cancel an urgent appointment at which his presence was essential. Despite the jurors concern, the prosecution did not strike him. (Snyder, supra, 128 S.Ct. at p. 1212.)
D. The Effect of MillerEl II and Snyder on our Comparative Juror Analysis Practice
Neither Miller-ElII nor Snyder changed the Batson standard. An advocates jury selection decisions remain a discretionary prerogative, but race-based decisions are not constitutionally tolerable. (Miller-El II, supra, 545 U.S. at pp. 237-240.) Both court and counsel bear responsibility for creating a record that allows for meaningful review. (See id. at pp. 251-252; Snyder, supra, 128 S.Ct. at p. 1209.) Review is deferential to the factual findings of the trial court, but that review remains a meaningful one. As the high court described it, [d]eference does not by definition preclude relief. (Miller-El II, supra, 545 U.S. at p. 240.) When reasons are given for the exercise of challenges, an advocate must stand or fall on the plausibility of the reasons he gives. (Id. at p. 252.) The plausibility of those reasons will be reviewed, but not reweighed, in light of the entire record. (See id. at pp. 265-266.).
In reviewing the plausibility of the prosecutors reasons for their strikes, the Miller-El II court considered various kinds of evidence, including a comparison of panelists responses. It stated: If a prosecutors proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batsons third step. (Miller-El II, supra, 545 U.S. at p. 241, italics added.) Miller-El II quoted Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, an employment case, in which the high court stated that [p]roof that the defendants explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. (Id. at p. 147; Miller-El II, at p. 241.) As the Batson court observed, In deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. [Citation.] (Batson, supra, 476 U.S. at p. 93.)
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[1] As we shall explain, Miller-Els matter first reached the United States Supreme Court in Miller-El v. Cockrell (2003) 537 U.S. 322. To avoid confusion, we shall refer to this earlier case as Miller-ElI.
[2] The trial court first declared a mistrial based on defense counsels representation of an irreconcilable conflict of interest. The second trial ended in mistrial after defense counsel became ill.
[3] All further undesignated statutory references are to the Penal Code. Defendant was also convicted of conspiracy to commit murder ( 182, 187); possession of a firearm by a convicted felon ( 12021, subd. (a)(1)); and carrying a loaded firearm in public while an active member of a criminal street gang ( 12031, subd. (a)(2)(C).) Sentencing enhancements and a prior conviction allegation were found true.
[4] Technically, members of the venire panel do not become jurors until they have been accepted by the court and counsel and sworn as jurors. We will refer to prospective jurors as panelists or panel members.
[5] Nearly a decade before Batson, California took affirmative steps to ensure that race played no part in jury selection. Thus, the Wheeler, holding has long been a part of California practice, and a motion of this kind is often referred to as a Wheeler motion. Although defendant cited only Wheeler on appeal he also asserts error under the federal Batson standard. An objection under Wheeler suffices to preserve a Batson claim on appeal. (People v. Lancaster (2007) 41 Cal.4th 50, 73; People v. Gray (2005) 37 Cal.4th 168, 184, fn. 2.)
[6] When a Wheeler/Batson motion has been made, it is helpful for the record to reflect the ultimate composition of the jury.
[7] Therefore, for ease of discussion, we will refer to the challenged party as the prosecution and the challenger as the defense.
[8] Here, the trial court requested the prosecutors reasons for the peremptory challenges and ruled on the ultimate question of intentional discrimination. Thus, the question of whether defendant established a prima facie case is moot. (Hernandez v. New York (1991) 500 U.S. 352, 359; People v. Shmeck, supra, 37 Cal.4th at p. 267; People v. Welch (1999) 20 Cal.4th 701, 745-746.) Defendant challenges only the trial courts performance at Wheeler/Batsons third stage.
[9] Defendant contends the deferential standard of review is inapplicable here because the trial court made no specific factual findings. On the contrary, the trial court credited the prosecutors reasons for excluding C.A. and the three Hispanic panelists, finding those explanations, rather than race, were the motivation for the prosecutors peremptory challenges.
[10] There were originally 20 Black members of the 108 member venire panel. Nine panelists were excused for cause or by agreement. (Miller-El II, supra, 545 U.S. at pp. 240-241.)
[11] At the time of the Supreme Courts opinion in Miller-ElII, the jury shuffle practice was authorized under Texas Code of Criminal Procedure Annotated, article 35.11. (Miller-El II, supra, 545 U.S. at p. 253, fn. 12.)
[12] In Miller-El II, this conduct by the prosecution was an example of how the states explanation could not be reconciled with objective facts. We emphasize, however, that post-Batson, recording the race of each juror is an important tool to be used by the court and counsel in mounting, refuting or analyzing a Batson challenge.
[13] The Supreme Court employed a time-honored approach to conclude the prosecutors explanations were repeatedly repudiated by the record. It is common, when considering credibility, to compare a witnesss statement against other things the witness has said or not said. Statements are also legitimately compared to other objectively demonstrable facts. Explanations not given at the outset but proffered only after the witness learns additional information may reasonably be viewed with suspicion.
[14] In a footnote following this paragraph, the Supreme Court stated: The Louisiana Supreme Court did not hold that petitioner had procedurally defaulted reliance on a comparison of the African-American jurors whom the prosecution struck with white jurors whom the prosecution accepted. On the contrary, the State Supreme Court itself made such a comparison. See [State v. Snyder (La. 2006)] 942 So.2d 484, 495-496. (Snyder, supra, 128 S.Ct. at p. 1211, fn. 2.)
The Attorney General interprets the footnote as suggesting the Supreme Court would honor a state procedural rule requiring that comparative juror analysis be conducted first in the trial court or be deemed forfeited. Of course, the court did not actually say that. The intended meaning of footnote remains unclear. Without further guidance from the Supreme Court, we do not attempt to discern its meaning.
