*1 Dist., First Div. One. Oct. No. 22634. 1982.] [Crim. PEOPLE, Plaintiff and Respondent,
THE FULLER, Defendant and ALONZO Appellant. MICHAEL *4 Counsel Robinson,
William Paul W. M. under the Court of Appeal, appointment Comiskey, & Robinson for Defendant and Comiskey Appellant. Philibosian, General, Chief Robert H. George Deukmejian, Attorney General, General, Stein, Attorney Assistant Assistant Attorney William D. Chew, Wilkinson, Herbert Buzzell and Donna B. Deputy F. Michael General, for Plaintiff and Attorneys Respondent.
Opinion
BANCROFT, Defendant Fullerfrom a appeals judgment convicting J.* him of Diana with intent to commit while on assaulting from rape parole Code, (Pen. 1203.085, 667.5, conviction of a previous rape. §§ (b).) subd. after Diana from a
Shortly alighted bus at Foothill and 55th in Oakland and commenced home at walking approximately October p.m., was accosted a black she male she had observed her. following He in front of her her arms. She jumped grabbing screamed and as he tried to her struggled toward some pull bushes and trees. He ‘ ’ ’’ me demanded: ‘Give some pussy’ clothes “Drop your here. right struggle street where a proceeded (Mr. motorist passing H) *5 exited his vehicle and whether stopped, inquired Diana knew her me,” assailant. When she answered “No. He tried to the rape assailant her, her, head, released threatened to kill hit her on the kicked her in the facts, ran away. Additional as leg will be necessary, mentioned in of this the course opinion. the
Before defense was alibi and the critical jury, question was one On of identification. Fuller claims appeal, reversible error in that the invalid, selection jury process prosecution withheld improperly to identification and discovery pertinent the court failed to give instructions defining rape. outset, we confront Fuller’s
At contention that the used prosecution to remove three challenges black peremptory perspective jurors on the of the sole violation to trial a ground group right by drawn jury I, from a cross-section of the under representative community article 16 of the California Constitution.1 section Since we conclude that the be reversed and remanded for a new case must trial on account of the *Assigned Chairperson of the Judicial Council. I, part 1Article section 16 of the California declares in relevant that: Constitution
‘ ” by jury right ‘Trial is an inviolate and shall be secured to all . . . . we need not use of peremptory challenges, prosecution’s improper discuss other defense contentions. v. Wheeler
In the case Cal.3d 258 [148 (referred Wheeler), 583 P.2d to hereafter as our 748] that, “the use of court concluded remove peremptory high sole bias violates the ground right prospective drawn from a cross-section of the representative a jury trial I, section of the California under article Constitution. community members of such a not mean that the are immune from This does individual members thereof still be struck on challenges: may peremptory bias, defined herein. Nor does it mean as that a party grounds specific to a jury will be entitled petit proportionately represents every group rule we adhere that no community: long-settled litigant in the has that mirrors of the demographic composition right jury includes members of his own or necessarily indeed group, population, individuals. of any particular is composed [Citations.] however, mean, is that a “What it does is party constitutionally that is near an to a of the ideal jury approximation entitled petit of the as the of random draw community process cross-section permits.” 276-277.) (22 at pp. Penal Code defines a peremptory as “an challenge
Section 1069 for which no reason need be . . . .” The given to a juror objection that a presumption party exercising majority adopted Wheeler a constitutionally so on doing permissible ground challenge (22 to be rebuttable. at p. that presumption and declared the court stated that the fashioning remedy, objecting party fashion and make a facie timely “must raise case of point *6 First, to the satisfaction of the court. ... he discrimination should Second, a record of the circumstances as is feasible. make as he complete that the excluded are members of a must establish persons cognizable Third, the within the cross-section rule. meaning representative group of the case he must show a the circumstances likelihood strong from all are because of their being challenged that such association persons group (22 because of bias.” at fn. any specific p. rather than omitted.) determine, must based made upon showing
The trial judge counsel and the court’s observations the voir dire process, objecting bias has been made out. In a facie case group making whether the court “must determine whether a reasonable that determination
409 used on challenges being ground that peremptory arises inference supra, p. bias alone.” (People of made, that facie case has been the burden finds a prima “If court he can to show if peremptory challenges to the other party shifts (Ibid.., on bias alone.” fn. were not in question predicated omitted.)
In used seven the Wheeler case the prosecution apparently2 in a to box jurors jury excuse black called peremptory challenges were two. black defendants accused the murder of in which there case of a When robbery. owner the course defense white store grocery a mistrial, court for a asked the whether prosecutor moved counsel be but also indicated that he was not would a response required there no There was and the court denied the motion for response respond. So far as the case was tried an appears, mistrial without comment. before reversed the high judgment ostensibly white Our because all jury. no that the defendant had he could rights the trial assumed assert judge challenges the use of that case. peremptory respecting Cal.3d v. Johnson was case to Wheeler which decided on the companion P.2d 774] i Johnson, was a black male charged the defendant with day. same dire voir defense counsel stated that the During of white female. rape against one of two challenge had used peremptory prosecutor he to the use of another such challenge would object and that black other black juror. against his he intended use peremptory admitted The prosecutor “ that is called sit any I black ability juror as have ‘As long ”’ Johnson, 298.) He 22 Cal.3d at stated p. (People case.
this [nigger] statements racially made prejudicial of his witnesses certain “ would make ‘which I would think to the jury, be disclosed might about it . . . totally objective be person black very it difficult ” (Id., . . . .’ subconsciously consciously either sworn, a mistrial on the moved for was the jury After After hearing forth in Wheeler. set grounds challenge comments, court denied the his earlier upon expand before an all white jury. the case heard comment motion without *7 were reasons because the prosecutor’s reversed court high Our Johnson, 22 law.” (People as a matter “insufficient 299.) at p. any juror until identity racial record the spread on the 2Defense counsel didn’t sitting jurors. challenged eight prosecution peremptorily had
after 410 (1979) 454, v. Allen 23 Cal.3d People
In 286 Cal.Rptr. [152 590 30], black P.2d two defendants were convicted of assault aggravated Code, (Pen. 4500) a life were sentenced prisoner to death. The § a white state correctional officer who victim was had been stabbed death. The over defense 14 prosecutor, objections, used peremptory against 11 black challenges potential regular jurors for cause passed in the box three black jury plus potential seated alternate jurors passed cause. for
In to defense objections, stated that response prosecutor simply counsel not because defense had demonstrated that the district attorney’s routinely office had utilized exclude blacks time, from over a substantial juries defendants had not period facie made out a case unconstitutional action and prima no explanation necessary.3 was
The defendant’s motion was denied and the case was tried before an all Our court reversed white basis that on record jury. high before court, case was the trial facie made and the court erred in not prima Allen, supra, requiring showing. (People to rebut that prosecutor 232 at p. (1982) v. Rousseau 129 Cal.App.3d [179
892], two used prosecutor peremptory challenges against the only jurors two black on the race of The was shown panel. in that decision wherein the two counts of theft were charges grand 484, Code, 487); commit (Pen. Code, conspiracy (Pen. theft §§ 4); (Rev. subd. and a failure to remit unemployment taxes & § Code, 19408). “The . . . prosecution Tax. exercised two peremptory § black The trial jurors. court took challenges against judicial notice that (Id., were the blacks on the these panel.” disclosed that Rousseau’s court’s consisted opinion showing solely that the counsel’s statement excused black jurors defense were the only blacks on the whole On that panel. two court showing, determined did not constitute a that the statement facie prima showing. Allen,
Hence, Johnson and our high found facie case of bias had been made out as a matter of law that, case, in each the trial erred judge overruling defense apparently relying upon concepts 3The derived from Swain v. 824], (See, (1965) 380 L.Ed.2d 85 S.Ct. example, Alabama U.S. [13 664].) L.Ed.2d Duren v. Missouri 439 U.S. S.Ct.
411 did the in Rousseau decision in the Court Appeal Only objections. showing.4 make a sufficient counsel fail to defense objecting and heard the case, prosecutor’s invited the trial judge the instant occasions, thus two separate objections defendant’s response and the constitutional burden had shifted that perhaps suggesting However, defendant’s denying in finally in its second phase. inquiry facie case had not found that motion, prima court clearly mistrial whether the with question thus presented We are established. been been established constituted facie case had find a failure court’s error. reversible case, of the Wheeler we evaluate importance the procedural
In view of it from certain rationale and distinguish its underlying some of in detail concepts. other be the same as that basic to a host seems not to Wheeler rationale
The
or “affirmative action”
legislation
“civil rights”
well known
not
under a traditional
it does
proceed
decisions. For example,
judicial
or due
analysis
protection
process
providing
or state equal
federal
on account of
to discrimination
historically subject
to persons
protection
sex,
race,
It does not
religion.
national origin
require
as
such factors
of “a
or
systematic
civil
exclusion
rights dogma
pattern
utilize the
“action.”
It
from federal or state
does not
resulting
discrimination”
of the excluded
or as a
as a member
groups
“standing”
require
Nor is it limited
Sixth Amendment
denied equal opportunities.
persons
Swain
following
court decisions
from federal and state
arising
concepts
Alabama,
merely
is
focus apparently
education, condition, residence, economic occupation, place affiliation; that it is to unrealistic to be political expect devoid of or even deep-rooted biases derived opinions, preconceptions, from their life in such and hence that the experiences groups; only practical way achieve an overall is to impartiality encourage the of a representation of such the so that the variety groups jury respective biases of their members, extent they antagonistic, the will tend cancel each Wheeler, (People supra, v. 22 266-267, other out.” at pp. fns. omitted.) Wheeler in federal5 state decisions analyzed opinion rule in service of “other representative the cross-section
following
in our
judgments
essential
functions
the
Of
society,
legitimating
courts,
in
the
citizen
government,
preventing
promoting
participation
267,
(22 Cal.3d,
6.)
further
at
fn.
stigmatizing
minority groups.”
p.
84,
[blacks],
(1940) 311
L.Ed.
61
v.
U.S. 128
S.Ct.
[85
164]
5Smith
Texas
language
proved
court in
has
to be
Black wrote
a unanimous
that
wherein Justice
juries
of the
in the
as instruments of
part
“It
is
established tradition
use
seminal:
(Id.,
community.”
jury
body truly representative
be a
at
public justice that the
of the
Wheeler,
267.)
86];
(Glasser
supra,
p.
p.
People v.
22
at
p. 130
L.Ed. at
[85
680,
(1942)
L.Ed.
White failed to establish the error of was complained prejudicial and inclusion of businessmen and club (exclusion working people that the list the commissioner used women) jury but the court found so as cross-section of the weighted prevent having good “improperly ” (Id., community jurors. at p. prospective “ ‘The American an drawn from a system requires impartial jury the entire must be community recognition cross-section of given are to be found in stratum of every society. the fact that eligible truly jury lists selecting representative panel, membership used, clubs and be but may they various should organizations properly Wheeler, 270, 8, People supra, page 22 footnote wherein Justice 6See representative cross-section concepts respect with to which the Mosk treated various rule was enunciated. source of not be relied as nor principle prospective jurors should used to the exclusion of other complete general be sources more they a cross-section population, likely represent telephone directories, lists, directories. city Any or voting system method of fundamentals, which fails to adhere to selection these democratic jury a cross-section of encompass which is not designed or community classes, seeks to favor limited social economic is not in which keeping American tradition and will not be (See with the condoned this court.’ 549, (1961) v. Carter 56 Cal.2d 568-570 People also Cal.Rptr. 645, 477].)” (People 364 P.2d at pp. 271-272; (1974) 55, Superior cf. Adams v. Court 12 Cal.3d 59-60 [115 247, 375]; (1973) 524 P.2d v. Jones People 9 Cal.3d Cal.Rptr. P.2d]; v. Hines 12 Cal.2d *11 P.2d 92].)
539 [86 concluded, court The Wheeler we now “Accordingly, make White, in what was hold that in this state implicit the explicit right drawn from a cross-section representative trial a of the section of by jury equally the is the Sixth community guaranteed independently by I, to the federal Constitution and article section Amendment of the case, however, of Constitution. express holding California is [The California founded upon Constitution.] of our
“It therefore becomes courts to responsibility insure that words, be to a hollow form reduced of but this remain a guarantee of the liberties of safeguard vital and effective California citizens.” Wheeler, , 272.) v. Cal.3d supra, at p. (People a law that be recogizes peremptory challenge may “[T]he of on a broad evidence spectrum suggestive juror partiality. predicated from the serious to the range obviously The evidence may apparently trivial, certain to the virtually highly speculative.” (People from the Wheeler, 275; added.) italics The term supra, p. than either the “actual more inclusive bias” or “implied “partiality” (Penal Code, for as statutory grounds challenge. bias” authorized Wheeler court insists that upon proper §§ foundation, counsel) or defense an be attorney (prosecutor may for certain disclose reasons so that exercising compelled whether constitutional determine for presumably challenges, court may fact, reasons, have not been made improperly asserted whatever bias. group the purpose facts in the instant and undertake to appeal now turn to the
We Fuller is black as is the principles. in the light applicable them evaluate Diana, victim, a assault with involving in this sex case intent to charge All three of the black in the entire jurors venire rape. prospective commit excused There pursuant prosecutor’s peremptory challenges. were first, or whether in the briefs as to arguments is no dispute made a a record timely circumstances through objection,7 complete second, established that the is feasible peremptorily challenged of defendant’s members of subject objection—were jurors—the within the meaning cross-section group representative cognizable focus may we the third Accordingly, solely rule.8 element of the upon from all the facie case: whether circumstances he case likelihood that such were showed strong persons being challenged of their association rather than because of because group any specific (People bias.
The Wheeler for illustrative set forth certain means purposes, one his might which show has opponent challenged jurors because of a bias: Thus has struck may show that his most party opponent venire, all of the members or has used of the identified from the his number of peremptories He disproportionate against group. may demonstrate also share question only this one characteristic—their in the membership all group—and other *12 whole.[*] are they Next, as as the as heterogeneous community a respects be showing when may supplemented appropriate circumstances as the failure of his to these same in opponent engage jurors more than dire, voir to desultory or indeed ask them at all.” v. any questions (People Wheeler, 280-281.) 22 supra, at pp. this and
“Upon absence, similar presentation evidence—in the course, of the court must jury—the determine whether a reasonable arises that peremptory used on the challenges being ground inference bias alone. . . . made, “If court finds that a facie been case has the burden to shifts the other show if he to can that party the peremptory challenges were not question alone.” predicated v. (People Wheeler, 281, 22 added, supra, at p. omitted.) italics fn.
When the that “no need be a statutory provision given” reason Code, (Pen. 1069) into peremptory challenge comes conflict with § challenged 7After the second a juror, black asked for and the expressly right preserve conference reserved his record. defendant’s long cognizable 8Blacks have in similar group. circumstances been held to be a example, alleged ground may significant in a exclusion on the of race it be *“For case of black, persons challenged, although all include men and women and are of a if the both ’’ variety ages, occupations or economic and social conditions. 416 an right impartial jury
the constitutional representative rule, “must give way the statute constitutional cross-section face, is invalid on its but in statute these limited imperative; be if it were to it would invalid insulate from applied circumstances right denial of the an That impartial jury, a inquiry presumptive [f] challenge because is not a peremptory right paramount but statutory (People a necessity privilege.” constitutional 28; fn. also see People King at p. Cal.3d 706], A.L.R.3d 399-400 where Cal.App.2d established have no Justice Sullivan peremptory in Presiding constitutional origins.)9 federal or state challenged by jurors peremptorily prosecution black
The three T), P), R) (Mrs. (Mr. and ninth (Mrs. fifth his were second T, an resident for 14 was a married years, Oakland Mrs. challenges. teacher of third fourth children. She had grade Richmond school School for 13 Her Oakland-Richmond District years. in the taught the Oakland office. She a mother of post employed husband was children, was a at San 13 and 19. older student aged female two State. Francisco P, resident, 4½ was for technician years psychiatric Hayward
Mrs.
in San Francisco who counselled adolescents
Hospital
at St. Mary’s
Some
assaultive.
of 12 and 18.
were
Her training
the ages
between
secretarial,
She had
counselling
medical and
work.
earlier been
included
counselor, she
20 or 30
As
saw
Chicago.
people daily,
counselor in
holds. She was married
an insurance
custody
or on
custody
some
and 18
and has 2
months old.
daughters,
years
underwriter
company
resident,
R,
was a married General Motors employee.
Mr.
an Oakland
*13
He
lived in the
had
Area for
daughter.
Bay
had an
He
eight-month-old
data
for the Clorox
His wife was a
years.
processor
Company.
about
Tribune,
Chronicle,
San
Oakland
Francisco
Sports
read the
He
Illustrated,
and
basketball
the Oakland
Ebony
played
through
Jet and
with
Fresno and San Jose
Berkeley,
policemen.
Recreation Department
for seven and one-half
as an
years
General Motors
He worked at
laid off
and a half and thereafter returned
year
was
for a
assembler. He
His voir dire took
on
place
February
in November.
work there
for
been
to work
two or three
He was
after he had
back
months.
who the
asked whether he would
prosecutor
only
juror
the
prospective
part
common
California as
9Query
they
adopted
were
of the
law of
from
whether
England
abolished
in
right
peremptory challenges was
England
the Crown’s
since
(4th
(33
[1305],
par.
Halsbury’s
England,
Laws of
vol.
ed.
No was Mrs. T. objection P, However, the of Mrs. defense counsel challenge after an requested into chambers for brief discussion which step occurred opportunity later, before us. voir dire Fifty later in the record the transcript pages Mr. R Defendant moved challenged peremptorily. for a prosecutor for a new based on mistrial and asked the exclusion of jury all three The black in the court asked for a jurors panel. prosecutor response. The that of responded by contending the black potential two were female and excused last was male and four white women defense counsel and thus challenged systematically white women tried to exclude from jury, only two excluding white his males. He also denied established “a challenges strong likelihood that because of I have are challenged association rather persons group than bias on The any my court denied the motion specific part.” and said, systematic “I do not see exclusion. I see his exercising eight ’’ them three five of Caucasians and of them challenges, Negro. of the day, the afternoon after the following sworn jury and
excused, with the court by prearrangement who allowed the orally defense counsel both through procedure, typed memorandum motion and requested renewed his Wheeler a mistrial in reliance upon The Wheeler and Johnson. discloses what then transcript occurred.10 10“The Yes, Court: Mr. Mr. Smith (Deputy Smith? Attorney): District [¶] Your regard yesterday Honor. I would the record in supplement previous some from and the knows, case, higher motion. As the Court the Wheeler court defers to the local they courts in that are here and seated and can observe happening. what is The court [¶] point does out in the Wheeler case that the court and the moving party in the Wheeler totality motion also must and the look circumstances the case itself that is before excluded, just reality being the court and not of the that is point [¶] Additionally, court, of the case. says test is the circumstances that the local Attorney requiring before the District to offer the court his for excluding reasons jurors, the court find there is a reasonable inference peremptory challenges must alone, being grounds on the and the local used court must also select and distinguish part part true on the of those discrimination of a motion moving distinguishing this claim party interposed purposes from the from case, out, point delay harassment or I would and I believe point don’t we did [t] *14 case, yesterday, particular that in out in the record this it is true the that defendant is of However, percipient black race. the victim and all the witnesses in this case are black. If all, at any my there are witnesses to be called it would be belief they white would probably probably offense, police be defense witnesses and officers who not percipient are to the That is one concern that the court addressed in the Wheeler case. It would [t] me, my belief that there are no racial seem to and it is overtones in this case whatsoever. would, face, case, my knowledge not a that and, on its and from It is case of have fact, in prejudice jury in it issue on selection would to be seem more of
418 intended, the court as a merely inviting response, in
Evidently, have the usual to be that courtesy, opprtunity traditional contentions.11 The district to his opponent’s heard opposition touched the critical of question specific never upon attorney’s responses bias. of the trial court’s observations of the significance recognition stated, the Wheeler area, court “We that such a recognize [prima
this often to make difficult close judges trial ruling ‘requires facie] determinations, to make such are in a position They good judgements. however, of their of local conditions and of local knowledge on the basis The Discrimination: Next Phase [Jury (Kuhn, prosecutors.’ 295.) are supra, fn. at also well op.cit. So.Cal,L.Rev.] p. They observation, on this their of to bear question powers to bring situated broad trial and their techniques, judicial understanding their of their true case of ability distinguish are confident We .a experience. from a claim by spurious peremptory discrimination group Cal.3d, (22 of harassment or delay.” simply purposes interposed 281.) p. (but it not urged by Attorney contended attorney district
The five that the defendant peremptorily challenged in the appeal) General statement Justice Mosk analogy, following women. By white not “A does sustain his burden party to apply: would seem to cast a different burden on his opponent.” attempting justification Wheeler, fn. at p. (Peoples. regard, woman who was assaulted. In that as I women for another [¶] concerned and, fact, excused white women now there has Mr. Powell yesterday, out pointed women, group, and it would seem that that is a more definable white five been excluded five men and five women. I think people. I excluded his type of [¶] in number and both type people numbers and from the standpoint recognizable from is more group (Assistant Powell? Powell response, Mr. Mr. they The Court: Your are. [¶] [¶] any challenges having to do with Defender): comments I move to strike his Public Yes. defendant, the Court’s consideration totally irrelevant to They are by the [¶] exercised regarding of in that I am aware this state any legal decisions and irrelevant here, The matter is submitted. Pursuant Court: issues particular [¶] [¶] whether a responsibility to determine reasonable inference the Court’s it is now Wheeler alone, being grounds challenges used on peremptory that arises reasonable inference has not arisen in this determination the Court’s it is drawn, I inferences can be but don’t believe a number of different A proceeding, [¶] being grounds challenges are used on the peremptory arisen that has inference reasonable alone, motion for mistrial is denied.” Accordingly, the group bias [¶] record, earlier, conclude, despite certain we said We murkiness.in that the prosecution show did not shift the burden believed supra, 22 (People v. bias. predicated
challenges were *15 his statement that involved The prosecutor’s male, one to a but be contention more appears two females for, “in a of to the defendant’s case exclusion position alleged favorable be it if may significant race ground persons challenged, black, men women a all include both and are of although variety, (People social or economic conditions.” v. occupations, ages, Wheeler, Cal.3d, fn. supra,.22 at p. indicated, the district at attorney we earlier trial that there argued
As in no racial overtones his case because the black defendant’s were victim not but was instead black. The same contention in white is footnoted General’s brief. Both from contentions result what be a Attorney may Wheeler.12 Since the cross-section misreading rule representative not the defendant does even that and the excluded be require of the fortiori, a it seem same would there can be no group, that requirement white, victim of a majority be or of group any particular other essential It that be is there group.13 “group overtones.” illustrate, Wheeler court made to the reference to point simply as applied case, instant if a defendant is black and the victim is white in significant facts be especially totality circumstances such would in bias. establishing group is,
As it before the denied, mistrial motion was the record disclosed with,, “race factors.” To significant begin black male defendant with assault with charged intent commit and the rape trial jury was all white.14 The district attorney stated that all of his witnesses were motions, From the black. it pretrial was evident the defense would be misidentification with its usual accompanying alibi. circumstances, it is not unusual the defendant to testify (unless inhibited by relatives, impeachment priors) backed up by neighbors or illustratively listing “compendium” 12In ways of relevant which facie made, may supplementing be case significance those with the desultory jurors, stated, questioning of the excluded lastly, happens be t/the group, may a member of the excluded that fact also be called the court’s attention ‘ ‘arid,especially addition his alleged victim a is member group which the if Wheeler, (People majority remaining jurors belong . . . .” supra, added.) italics noted, 13As earlier a “defendant need not be member of the excluded to complain representative order of a violation of the cross-section rule . . . .” (People p. 281.) 14The record presence, does not disclose the number or identification of the jurors as other than they nonblack. We must therefore assume were all white rather than some combination of whites and party No nonwhites. or counsel contends one of them was black. *16 in the instant have been inferred reasonably It could
acquaintances.15 some, all, be black. Such if not would those witnesses among case that analysis among in the foregoing been discussed as have factors Wheeler.16 evaluation under to trial judge open circumstances voir dire of the black attorney’s jurors that the district urged It is also who than that of the other nonblack desultory jurors more not any we observe that it is not again, Once challenged. were peremptorily desultory questioning. Desultory the objecting party prove that essential merely showing objecting supplements apparently, questioning, Wheeler facie the third of the test make under prong seeks to party case, circumstances of the were excluded jurors all the that from case, In a an rather than bias.17 close specific basis of group could be to the trial helpful judge. consideration additional Wheeler is the fact that the does not opinion further significance Of arises from a desultory questioning the conclusion suggest excused jurors by to the group confined comparison examined the district The record attorney. the jurors to all even black the district voir dire of jurors, attorney’s of the three discloses P, R, of Mrs. four and of Mr. two pages of two pages; Mrs. T consisted were most asked standard and routine. part questions For the pages. failed to show that of the three jurors was The answers provided Instead, be biased against prosecution. reasonably likely specifically characteristic, race, their “in one were all sharing single they except as the as a whole.” community ... as heterogeneous other respects Indeed, 22 Cal.3d all three of the p. v. {People ante, married, (See and had at least one daughter. were employed bias, to elicit were not asked. In our specific Probing questions, was desultory. the questioning view P called to our attention that Mrs. worked with
The prosecution
adolescents,
of whom were in
and some involved in
custody
some
It is also
that Mr. R had suffered
emphasized
crimes.
assault-type
contentions are that the
unemployment.
specific
period
previous
P
have concluded that Mrs.
have formed
might
“may
attorney
district
R,
(and its
and that Mr.
as the
representatives)”
the system
bias against
charged
prison prior rape
year enhancing parole
15Fuller admitted a
state
and a one
offense with which he could
be impeached
violation on account of
instant
in this
(See
Beagle
him.
trial once admitted
17People
But even assumed that Mrs. P arguendo and Mr. R been have excused the might through exercise of a properly peremptory there remains for consideration challenge, challenged Mrs. T. The juror to General does not seek in Attorney fashion the justify any challenge earlier,19 her. As indicated she was a against teacher with 13- and The voir dire of 19-year-old daughters. two-page her by the district contained neither an answer attorney evidencing bias nor even specific from the as to any prosecutor inviting speculation question existence bias. It is stated in Wheeler “If that: the court specific finds that the burden is not sustained to justification as the questioned of their challenges, presumption is peremptory validity (22 rebutted.” added.) rule, at italics p. This as applicable to any stated in Wheeler juror, is with reference challenged to second stage the court has found a already wherein facie case to prima have been it seem to established. would to the first Logically, apply stage [prima in order for the second stage] facie stage [justification rule to stage] have any validity.
With to contentions respect foregoing made the Attorney justify General to two we seeking note challenges, initially that Wheeler criticized as “virtually the burden of impossible” proof on pattern criminal imposed defendants by [historic discrimination] Alabama, 380 U.S. supra, Swain v. and the federal and California it: decisions “It demeans the following Constitution to declare a fundamental under charter and at personal right the same time make it for an to citizen exercise that virtually impossible aggrieved For right. stated, the rule of Swain v. Alabama to reasons is not be followed in Wheeler, 18Here, prosecutor give any declined to reason. It true that is Wheeler the court affirmed the prosecutor’s “right” give not to a reason. In the instant attorney give case the district was never to he respond, asked a reason. When did he at gave suspecting partiality no time reason for specific bias. “Because the reason, give any speculate declined to we shall not on he whether could have done (Wheeler, supra, 283.) so.” Cal.3d 30 at p. fn. 19Ante at page 416. (22 cases it are to and the that extent.” applying disapproved
our courts Also, would be unrealistic contrary “[i]t ... upon the burden of impose principles applicable explanations all excluding permissible possible underrepresenta Missouri, 439 U.S. (Duren v. L.Ed.2d supra, pp. 368-369 tion. Wheeler, 589-590]; 286-287.)” 22 Cal.3d at pp. at pp. Buford, supra, Cal.App.3d 288, (People that the General instant case controlled Attorney urges than rather Johnson and Allen cases.20 We Rousseau case Rousseau, attempt satisfy “appellant’s required disagree. limited his statement that ‘there were two blacks case was facie the; were they both the district challenged by whole panel, *18 Thus, attorney.’”21 is insufficient. Obviously, such a statement alone is in to Rousseau a case which the defendant failed distinguishable as even as to the under the showing a sufficient first Wheeler that rung make as a “make record of the promptly complete defendant must case, shown, In the as is feasible.”22 instant we have circumstances to raised as defendant’s made a showing no is sufficient having question the rungs. first and second It is third with rung under Wheeler’s Wheeler here. The we concerned. controls failure of which are the is, any the instant case volunteer reasons in practical in prosecutor effect, refusal to give to the Wheeler reason. prosecutor’s any analogous did not seek show his were based challenges
Since prosecutor bias, we examine the comments of the trial When judge. specific upon existed, facie case it that that no stated a court concluded were that used on peremptory challenges being inference reasonable stated, not The court bias alone had arisen. then “A of group grounds drawn, can be but I believe don’t number inferences of different has that alone, are used challenges being inference arisen reasonable the motion for Accordingly, of bias group the grounds [¶] on added.) The (Italics court is to state the required is denied.” mistrial and, case, this the court did not do so. No doubt finding; for its reason which aided it in its but neither made finding; trial court observations about, for, or comments nor bases them any appear observations these us. record before Wheeler, “from all the party, court stated that complaining In must show a likelihood that such strong the case . . . of circumstances Johnson, 258; Wheeler, supra, 22 Cal.3d People v. Cal.3d 20People Allen, 296; 286. supra, 23 Cal.3d People v. (1982) Cal.App.3d 21People 892]. Rousseau page supra, 22 280. 22People v. are because of their association being rather persons challenged group of of bias.”23 Within a than because that specific page quotation, said, “the it was court must determine whether a reasonable inference used on the being arises peremptory challenges ground group alone.”24 bias believe that a fair Wheeler reading
We that the court requires only once reasonable inference an find foundation appropriate in the first of the two stages.25 laid no
We find for the “independent ground” in the entire Hence, we record of this conclude proceeding. the record in the case, Fuller made' a than instant more sufficient showing a prima facie (1) He objected case. made the promptly best record (2) possible; showed that excluded were cognizable group; established from all the circumstances that there arose a reasonable inference of bias rather than bias. specific absence of a matter law sufficient evidence as trial support the finding case, determine we that it was this error not to require and to allegation deny appellant’s motion for respond mistrial *19 a rebuttal showing by without each prosecutor that challenge of on bias. grounds The error is predicated specific prejudicial se per under Wheeler. we must reverse and
Accordingly, remand the judgment cause for view our a new trial. In of of disposition peremptory challenge issue page 23 22 at 280. page
24 22
281.
example,
25For
the word “alone”
quoted phrase
in
second
logically must be
consistently
interpreted
phrase
quotation,
with the
in the first
“rather
than
of
because
any specific
the Supreme
bias.” Otherwise
must
Court
be deemed to
required
have
complaining party
showing
that,
place
one
to make a
which is different
from
which,
Thus,
viewed,
the trial court must
existence
determine in another.
properly
Wheeler
rung
trial court must determine under the third
“persons
being
whether
are
challenged
because
their
association
than
any specific
rather
because of
bias”
is,
be,
and must
identical
which
to “whether
a reasonable
inference arises
that
being
are
on the ground
used
bias alone.” We are
unwilling
high
to believe that our
court
intended to create
options
different
for trial
judges
page
carefully
within
of each other
so
opinion
one
crafted an
as the Wheeler
Moreover,
phrase
opinion.
“reasonable
inference” is more familiar to bench and bar
E.g.,
a
“strong
than
likelihood.”
reasonable
“The
must determine
whether
” (22 Cal.3d,
. . . .
arises
p.
inference
rule,
follows the Wheeler
high
which
A Massachusetts
court decision
upon
based
a
provision,
requires
showing
state constitutional
of “a likelihood.”
{Com.
499, 517],
Note,
(1979)
discuss altered have may significantly the Wheeler opinion We are mindful bar before that decision. of the bench and dire practices usual voir And, that in Wheeler our high be a palliative it not may rules of the of its applicability did not reach the question court expressly cases, course, involve trials public state that criminal civil cases the state and has a high duty, actually represents which the prosecutor merely to seek convictions.26 justice, in appearance, course, we, follow the Nevertheless, obliged procedure Sales, (Auto Inc. Superior a binding Equity precedent. Wheeler case 321, 937].) 369 P.2d Cal.Rptr. Cal.2d 450 (1962) 57 Court [20 reversed. judgment J., Racanelli, P. concurred.
ELKINGTON, dissent. I respectfully J. (1978) v. Wheeler 22 Cal.3d People
Relying
Cal.Rptr.
[148
748],
(1978)
v. Johnson
Cal.3d 296
People
P.2d
[148
774],
P.2d
v. Allen
(2) “Upon presentation a reasonable inference arises that whether peremptory determine must of bias alone. ...” on the ground group are used being challenges made, that a facie case has been the court finds (3) “If to show if he can that to the other party peremptory burden shifts (22 bias alone.” were not predicated group challenges question Cal.3datp. sustained is not that the burden of
(4) justification “If the court finds challenges, presumption questioned peremptory as to (22 is rebutted.” Cal.3d validity their above the intent of the have erred in
I believe my colleagues respect (2). rule numbered evidentiary showing
Following pertinent argument Fuller, ruled follows: “The the trial court Court: The Wheeler, it Pursuant is now the court’s is submitted. matter [¶] whether a reasonable arises to determine responsibility inference used on the being grounds are bias challenges peremptory 'of alone, that such a reasonable it is the court’s determination and. inference A in this number of different proceeding, not arisen inferences has [¶] drawn, I don’t believe a reasonable has arisen that be but can inference used on the bias being grounds motion for (Italics mistrial is denied.” Accordingly, alone. [¶] added.) (above their that the trial court’s as I read say, opinion,
My colleagues clause, inferences be “A number of different can unemphasized) inference of bias drawn,” of a reasonable finding “group constitutes the it, which, not to draw under Wheeler the court chose although alone” the burden absence proving “group shifted prosecution alone.” Thus, is about to be our criminal law. grafted a novel procedure upon existent rule of criminal and civil law that: to the long It does violence inferences from the can be deduced reasonably or more “When two without to substitute its deductions for facts, court is power a reviewing Cal.2d Antoyan (Grainger court.” of the trial those 848].) P.2d 807 [313 the trial court’s determination was not is observed
No complaint defendant Fuller concedes that evidence. Indeed substantial supported have excused the three Blacks attorney may district “the grounds.” constitutionally permissible *22 “a exercising party a presumption
There is constitutionally ground.” on a permissible so doing challenge 22 Cal.3d {Wheeler, p. that “different
Moreover, the trial court found only we note that can be drawn.” no test of By reasonable inferences inferences] [not reasonable, under our law. inferences, found apply not such may logic to a conclusion is squarely contrary more important, But said: this that court subject “Upon presentation command. On Wheeler’s course, absence, of evidence—in the defendant’s] [the a reasonable inference arises determine whether court must jury—the on the are used being ground challenges that peremptory the trial 281.) The (22 language manifestly requires Cal.3d p. alone.” court’s, our, reasonable inference’s determination of applicable existence.
Then, the Wheeler court declared: a sort of emphasis point, as trial to make difficult ruling judges that such ‘requires “We recognize are in a to make such good They position often close judgments. however, determinations, on the basis of their of local knowledge . . . well They and of local are also situated prosecutors.’ conditions observation, their their to bear on this question powers bring of trial their broad We techniques, judicial experience. understanding a true case of ability distinguish confident of their from a claim by peremptory spurious discrimination (22 of harassment or Cal.3d simply purposes delay.” interposed court, that it not the am was trial but accordingly opinion I court, which Wheeler and this has its misapplied companion instead cases. out, contention is made Fuller no that the trial
Although, pointed criticized was without substantial it ruling evidentiary support, court’s the evidence vis-a-vis that of briefly analyze seems proper Johnson, and Allen. victim, defendant was black and his claimed white. The
In Wheeler the examination of some blacks was and as to the perfunctory prosecutor’s all; others, it that he no were asked apparent proposed questions members of the venire. Johnson all black also challenge the start victim; a black defendant and white on the concerned “As as I had I intended to long peremptory challenges record stated: *23 also, In Allen the defendant was black in this case.” black excuse The white veniremen were victim white. questioned alleged his and all) (14 were asked “if their answers simply blacks and the length, ’’ differ, and then excused. would victim, bench, Fuller, and the the alleged the case obvious were all black. The purpose witnesses prosecution’s percipient bias did not exist. find My colleagues group prosecutorial a claimed desultory the objecting party prove questioning,” “not essential it in “our view the was questioning state that [of blacks] but nevertheless the record indicates my reading I disagree; desultory.” (one who were three blacks excused peremptorily examination women) least as extensive and as that of probing, was at two man and counterparts. their white to here out and that Wheeler appropriate, point
It is significant, two relevant indicia of bias: and recognized emphasized expressly of members of the same race of challenges (1) the excessive peremptory witness.; race from the but a different complaining the defendant no intent to indicating members of impanel “desultory questioning” Neither, it is was here. respectfiilly opined, present race. the minority evidence, substantial and reasonable inferences There patently therefrom, of the trial court’s Fuller questioned ruling. supportive concession that “the district above-noted appellate attorney his agrees, the three Blacks constitutionally permissible have excused may mean that such “reasonable inference” might This can grounds.” trial court. drawn have been state, become the law of the a sort of opinion this court’s
Should would, think, I For result. it would be a rare discrimination inverse a verdict by exercising who would jeopardize court, lest as here á minority persons, reviewing against court, find an inference of bias alone. trial shall overruling I would affirm judgment. 5, 1982, November opinion
A for a was denied rehearing petition J., was of the Elkington, opinion to read as above. printed was modified for a hearing by petition should be granted. Respondent’s that the petition J., Newman, 1982. Court was denied December the Supreme J., Broussard, did not therein. participate