Lead Opinion
Opinion
Defendants John Paul Reynoso and Julian Jesus Reynoso were jointly tried and convicted by a jury, of the first degree murder of Mario Martinez and related offenses. The trial court rejected a defense motion challenging the prosecutor’s peremptory excusal of two Hispanic jurors as unconstitutionally based on group bias. (Batson v. Kentucky (1986)
In Wheeler we held that “the use of peremptory challenges to remove prospective jurors on the sole ground of group bias” violates a defendant’s right under the California Constitution to a trial by jury drawn from a representative cross-section of the community. (Wheeler, supra, 22 Cal. 3d at
We granted review to consider whether the Court of Appeal misplaced reliance on this court’s recent decision in People v. Silva (2001)
I. FACTS AND PROCEDURAL HISTORY
Defendant John Reynoso and his brother Julian were at a residence with several others, including the murder victim, Mario Martinez. John Reynoso and Martinez got into an argument, which culminated in Reynoso fatally shooting Martinez in the chest at point-blank range with a shotgun. Reynoso admitted shooting Martinez, but claimed he did so because he was in fear for his brother Julian’s life. Julian’s defense was that he did not aid or abet his brother and had no prior knowledge that John was going to shoot Martinez. Julian himself was armed with a handgun and threatened one of those present with it as the two brothers fled. Both defendants were convicted of first degree murder. John Reynoso was found to have used a firearm and inflicted great bodily injury during the commission of the murder within the meaning of Penal Code section 12022.53, subdivision (d). Julian Reynoso was also convicted of assault with a firearm, knowingly and maliciously dissuading a witness, and being an accessory after the fact.
The facts relevant to the Batson/Wheeler claim are as follows. Jury selection lasted less than one day. At the start of voir dire, the trial court excused a total of 53 prospective jurors on the basis of claims of hardship, without objection from the defense. More than one-quarter of those excused for claimed hardship (at least 14 prospective jurors, and perhaps as many as 17) were of Hispanic ancestry. The People exercised a total of four peremptory challenges, the last two of which were to Hispanic Prospective Jurors Mary L. and Elizabeth G. Defendants are Hispanic. So, too, was the murder victim. The final jury sworn to hear defendants’ case contained no Hispanic jurors.
The trial court conducted the voir dire and initially asked each prospective juror to answer nine questions posted on a board in the courtroom, which asked for his or her name, general address, occupation and length of occupation, spouse’s occupation and length of occupation, marital status, prior jury service, if any (type of case, how long ago, whether a verdict was reached), past involvement in a criminal case (as a charged suspect, victim, or witness to a crime), legal or medical training, if any, past involvement in law enforcement, if applicable, and whether they had any close friends or relatives in law enforcement.
Mary L. gave the following response to the court’s general inquiry: “My name’s [Mary L.]. I live in Earlimart, California. I’ve lived there most of my life. I’m a case manager for at-risk youth. My husband is a foreman for farm labor. I’ve never been selected for jury. I’ve never been involved in a criminal charge or victim. I have no legal or medical training. Never been involved in law enforcement. And I do have relatives that are in law enforcement.”
Elizabeth G. gave the following response to the court’s general inquiry: “My name is [Elizabeth G.]. I just moved to Porterville for four months. My occupation Pm a customer service rep. I’ve been there for eight and a half years. My spouse, he’s a construction supervisor. And he’s been that for over 18 years. I’ve never served on a jury before. I’ve never been involved in any criminal [sic] or been a victim. I don’t have any legal or medical training. Never been involved in any law enforcement. As far as a friend, I have a friend who’s an officer in Porterville. As far as the relative, he’s a brother who is a correctional officer.”
Elizabeth G. was thereafter excused as a result of the prosecutor’s exercise of his fourth and final peremptory challenge, after he had passed and accepted the jury 14 times while she was seated in the jury box.
After jury selection was completed but before the jury and alternates were sworn, defendant Julian Reynoso made a Batson/Wheeler motion, arguing that the peremptory challenges to Mary L. and Elizabeth G. were made solely out of group bias, i.e., on racial grounds, in violation of his constitutional rights, rather than for proper reasons specific to the challenged prospective jurors. (Batson, supra, 476 U.S. at pp. 84—89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)
Counsel articulated the basis for his motion as follows: “The [prosecutor] kept passing and passing and passing and saying that they were happy with the jury, happy with the jury. [][] Of the only juror they excused initially was the one gentleman who knew me from [a local tennis club], and then after that the only two other jurors that were dismissed [by the prosecutor] were Hispanics, [Elizabeth G.] and [Mary L.] [(][] I would take note of the fact that the jury as it’s constituted now has twelve Whites as the twelve jurors and three white alternates. I think it was a deliberate attempt by the prosecution to eliminate the two Hispanics that made it to the jury panel [sic: box] from the jury panel. The two defendants in this case are both Hispanic. I believe that’s a violation of Wheeler, your Honor.” Codefendant John Reynoso joined in the motion.
The trial court indicated that “because the People did only exercise . . . four [peremptory] challenges and two of those were Hispanic, I’m going to ask that the People give their reasons why they excused those two.” The prosecutor sought clarification as to whether the court was ruling that a prima
The prosecutor’s reasons for exercising his third peremptory challenge to excuse Prospective Juror Mary L. were these: “Your Honor, the People dismissed [Mary L.] based upon her being a counselor for at-risk youth. The People feel that [Mary L.] would have an undue sympathy for both defendants in this case because they are young and definitely if not at risk, past risk. [1] The People feel that she would associate with the people she works with and she would probably would have pity on them.”
The prosecutor’s reasons for exercising his fourth peremptory challenge to excuse Prospective Juror Elizabeth G. were as follows: “In terms of [Elizabeth G.], the People dismissed [Elizabeth G.] because she was [a] customer service representative. In terms of that, we felt that she did not have enough educational experience. It seemed like she was not paying attention to the proceedings and the People felt that she was not involved in the process. The People felt she would not be a good juror.”
The trial court responded, “And I accept those reasons as being not based upon race or ethnicity. And I don’t find that there has been a violation of Wheeler and that the—there was not a systematic exclusion of a recognized ethnic group, i.e., Hispanics in this case. So the motion is denied.”
Counsel for defendant Julian Reynoso asked if he could make a couple of points for the record, and the court permitted him to do so. The following colloquy then took place:
“[Counsel for Julian]: And a couple points for the record is that counsel for the People passed on [Elizabeth G.] about seven or eight times. Then when I think he sensed that the defense was getting ready to pass, then it [sic: he] excused [Elizabeth G.] There’s nothing about what [Elizabeth G.] said in terms of her background that would make her be sympathetic to the defendants in this case. When she said she was a customer service rep. Her husband is a construction supervisor. [][] She’s got friends in the Porterville [Police Department], her brother or brother-in-law works for the California Department of Corrections. There was nothing in her responses or her demeanor that would justify just excusing her other than it being a race-based exclusion is our position.
“The Court: And I believe that there was another Hispanic that was excused not by the People, but by the defense, and that was [Carolyn G.].
“[Counsel for Julian]: That was a legitimate reason. I didn’t excuse her.
*912 “The Court: I’m not saying it wasn’t legitimate. You just brought up—I’m not arguing with you, but I want the record to be clear, you argued that even a person who the People should want to have on, namely law enforcement background, may still kick off [sic: be kicked off] because of being Hispanic. I’m just pointing out that [Carolyn G.] was another person that is [of] Hispanic background but they did not kick [her] off and I believe her background was that she had been the one who had been kidnapped.
“[Counsel for Julian]: Right. I would say she would want to be kept on by the People because she’s been a victim of a violent crime at gunpoint.
“The Court: But your argument was that so should the other person[2 ] because they had law enforcement background.
“[Counsel for Julian]: I didn’t say she was law enforcement background.
“The Court: I thought you said—
“[Counsel for Julian]: I was looking over my notes in terms of what she[3 ] said in answer to the nine questions that are up on the little poster. She responded that she has friends in the Porterville [Police Department].
“The Court: Right. Law enforcement people.
“[Counsel for Julian]: And a brother who works for California Department of Corrections. So I’m just saying that based on those responses, there’s no legitimate reason to exclude her based on those responses other than the fact that she has her—she’s Hispanic. I’m trying to make that for the record. [][] [The prosecutor] argued that [Mary L.] would be sympathetic because she works with at risk youth. That’s his reason for excusing her. But for the record also the reason [Carolyn G.] was excused, as I understand it from [counsel for John Reynoso,] is because she was a victim of violent crime where guns were involved. That’s what we have here.
“The Court: Okay. Thank you.
“[The Prosecutor]: I’d like the record to reflect that defense counsel also had a challenge to [Mrs. T.], [who] seemed and looked Hispanic to me and I think they exercised or kicked off her as well.
“The Court: All right. We’ll see you tomorrow morning at 9:45.”
The Court of Appeal concluded that this court’s decision in Silva, supra, 25 Cal.4th 345, required reversal of the judgments. The court focused solely on the prosecutor’s peremptory challenge of Elizabeth G., and, more specifically, on the second race-neutral reason he gave for excusing her—that “[she] was not paying attention and was not involved in the process.” The court believed that the fact that the trial court “did not respond to or even acknowledge defendant’s [statement] that there was nothing in [Elizabeth G.’s] demeanor that would justify excusing her,” even though defendant’s statement “demonstrated his disagreement with the prosecutor’s assessment” of that prospective juror, was a significant transgression of this court’s holding in Silva.
The Court of Appeal acknowledged that “[t]he reasons given by the prosecutor in People v. Silva, supra,
We granted the Attorney General’s petition for review.
II. DISCUSSION
A. Wheeler
In Wheeler we held that “the use of peremptory challenges to remove prospective jurors on the sole ground of group bias” violates a defendant’s
We then explained how a defendant would go about making the necessary showing to perfect a Wheeler motion: “[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.” (Wheeler, supra, 22 Cal.3d at pp. 280-281, fn. omitted; People v. Johnson, supra,
Lastly, Wheeler discusses how a trial court should rule on the motion:
“Upon presentation of this and similar evidence—in the absence, of course, of the jury—the court must determine whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone.*915 We recognize that such a ruling ‘requires trial judges to make difficult and often close judgments. They are in a good position to make such determinations, however, on the basis of their knowledge of local conditions and of local prosecutors.’ [Citation.] They are also well situated to bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience. We are confident of their ability to distinguish a true case of group discrimination by peremptory challenges from a spurious claim interposed simply for purposes of harassment or delay.
“If the court finds that a prima facie case has been made, the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone. The showing need not rise to the level of a challenge for cause. But to sustain his burden of justification, the allegedly offending party must satisfy the court that he exercised such peremptori.es on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses—i.e., for reasons of specific bias as defined herein. He, too, may support his showing by reference to the totality of the circumstances; for example, it will be relevant if he can demonstrate that in the course of this same voir dire he also challenged similarly situated members of the majority group on identical or comparable grounds. And again we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.
“If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted.” (Wheeler, supra, 22 Cal.3d at pp. 281-282, fn. omitted; People v. Johnson, supra, 30 Cal.4th at pp. 1309-1310.)
B. Batson
The high court has devised a similar test for determining when the discriminatory exercise of peremptory challenges violates the equal protection clause of the federal Constitution: “[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. Hernandez v. New York
The court went on to explain that the intermediate appellate court in that case had “erred by combining Batson’s second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, i.e., a ‘plausible’ basis for believing that ‘the person’s ability to perform his or her duties as a juror’ will be affected. [Citation.] It is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. Batson, supra, at 98; Hernandez, supra, at 359 (plurality opinion). At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Cf. St. Mary’s Honor Center v. Hicks,
The high court in Purkett then pointed to language in Batson that may have been misconstrued; “The Court of Appeals appears to have seized on our admonition in Batson that to rebut a prima facie case, the proponent of a strike ‘must give a “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges,’ Batson, supra, at 98, n. 20 (quoting Texas Dept. of Community Affairs v. Burdine,
C. Peremptory Challenges
It is well settled that “[peremptory challenges based on counsel’s personal observations are not improper.” (People v. Perez (1994)
In Perez, the prosecutor noted she had personally observed a venireperson (Torres) “laughing at an inappropriate point during voir dire.” (Perez, supra,
In Fuentes, supra,
Finally, in Johnson, supra,
“It is also common knowledge among trial lawyers that the same factors used in evaluating a juror may be given different weight depending on the number of peremptory challenges the lawyer has at the time of the exercise of the particular challenge and the number of challenges remaining with the
“It should be apparent, therefore, that the very dynamics of the jury selection process make it difficult, if not impossible, on a cold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror which on paper appears to be substantially similar .... It is therefore with good reason that we and the United States Supreme Court give great deference to the trial court’s determination that the use of peremptory challenges was not for an improper or class bias purpose.” (Johnson, supra, 47 Cal.3d at pp. 1220-1221.)
Johnson reaffirmed that when ruling on a Wheeler motion, the trial court “must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .’ (People v. Hall (1983)
One might have concluded otherwise when reading this court’s opinion in People v. Trevino (1985)
Johnson further faulted the majority in Trevino for unreasonably expecting trial judges to make “detailed comparisons mid-trial” of a prosecutor’s “stated reasons for challenged excusals with similar characteristics of nonmembers of the group who were not challenged by the prosecutor.” (Johnson, supra,
The Court of Appeal in this case acknowledged that the prosecutor’s demeanor-based reasons for excusing Prospective Juror Elizabeth G.—that she was not paying attention to the proceedings and was not involved in the voir dire process—were not too general or too vague and could validly support the peremptory excusal of Elizabeth G. if the reasons were shown to be sincere and genuine. The court further acknowledged that “a somewhat inattentive prospective juror would be an appropriate concern, especially in a [murder] case of this magnitude. These particular reasons, if supported by the record, would be valid. The critical question becomes whether the record supports this reasoning.” (Italics added.)
The Court of Appeal, however, went on to conclude that the record on appeal would not support the prosecutor’s demeanor-based reasons for excusing Elizabeth G. because “[the trial court] did not respond to or even acknowledge defendant’s comment that there was nothing in [her] demeanor that would justify excusing her. Defendant’s statement demonstrated his disagreement with the prosecutor’s assessment that Elizabeth G. was not paying attention and was not involved in the process. Neither the trial court’s initial comments nor its subsequent comments contain any particularized assessment of the prosecution’s justifications.” (Italics added.)
In support of its conclusion that the trial court was required to make a record that included a “particularized assessment of the prosecution’s justifications” for peremptorily challenging Elizabeth G., the Court of Appeal placed principal reliance on our holding in Silva, supra,
The Wheeler motion in Silva arose in the context of a retrial of the penalty phase of a capital murder prosecution. “Early in the jury selection process for the penalty retrial, the prosecutor revealed an acute sensitivity to the presence of Hispanics on the jury panel and an evident belief that Hispanics would not be favorable jurors for the prosecution. The first penalty phase had resulted in a hung jury, with the final vote seven for a sentence of death and five for a sentence of life imprisonment without parole. Before the penalty retrial, the defense challenged the jury panels as not providing a fair cross-section of the community, and the prosecutor said this: T also believe that [defense counsel] has only made a record on Hispanic surnames and has not included any other races, creeds, or colors such as black, oriental because the first trial hung up on racial grounds. [Defense counsel] is well aware that four of the five people in the first trial were Mexican-Americans or at least had those surnames that voted for life without possibility of parole. And I believe that [defense counsel] is trying to influence this court, at this time, so that he gets the same type of a panel he got on the first trial.’ (Italics added.)
“Some days later, the prosecutor again said he believed the hung jury in the first penalty trial ‘was based on race.’ Eventually the prosecutor explained: ‘When I was speaking to the jurors that voted for life without parole, four of those jurors were in fact Hispanic . . . [and] one of the Hispanic jurors turned to the only Hispanic juror who voted for death and said, “You let us down,” meaning “You are Hispanic. We are Hispanic. We are a group.” And “You let us down because you didn’t vote for life without parole.” That’s what I based my comment on.’ Despite his stated belief that the hung jury during the first penalty trial was attributable to the racial or ethnic bias of Hispanic jurors, the prosecutor denied that he would exercise any peremptory challenge ‘on the basis of race, creed or color.’ But the implausible explanations that the prosecutor later gave for exercising peremptory challenges to exclude every Hispanic from the jury at the retrial of penalty raise grave doubts about the sincerity of this statement.” (Silva, supra, 25 Cal.4th at pp. 375-376.)
The defense in Silva made its first Batson/Wheeler motion to dismiss the panel and begin jury selection anew after the prosecutor had exercised peremptory challenges against three prospective jurors with Hispanic ancestry or surnames. The trial court found a prima facie case and asked the prosecutor to explain the reasons for the challenges. During the brief hearing, at which the prosecutor gave his reasons for exercising the three challenges, “the trial court did not ask the prosecutor any questions and did not remark on any discrepancies between the prosecutor’s stated reasons and the prospective jurors’ responses on voir dire or on their questionnaires. When proceedings resumed in the presence of defendant and defense counsel, the trial court
As the penalty phase jury voir dire proceeded in Silva, the defense renewed its Batson/Wheeler motion after the prosecutor had exercised peremptory challenges against two more Hispanic prospective jurors. Once again, the trial court required the prosecutor to give his reasons for the challenges. (Silva, supra, 25 Cal.4th at pp. 382-383.) The transcript of that second hearing comprised a single page. Again the trial court failed to question the prosecutor “or remark on the apparent disparity between [his] stated reasons and what the record shows to have occurred during voir dire. When proceedings resumed in the presence of defendant and defense counsel, the court said only this: T did hear the explanations presented by the prosecutor with regard to peremptory challenges exercised against Rosalinda [R.] and Ernestina [R.], and they appear to be very valid reasons for those excuses.’ As a result of the prosecutor’s peremptory challenges and the trial court’s rulings, no Hispanic served on the jury that returned the verdict selecting the penalty of death.” (Id. at p. 383.)
On appeal, the defendant in Silva challenged the denial of his Batson/Wheeler motion. We focused in particular on the voir dire of one prospective juror, Jose M. We reviewed the record of the voir dire proceedings and found that the prosecutor’s reasons for peremptorily excusing Jose M. were contradicted by the record. We then explained, “[W]e agree with defendant that the court erred in denying the motion as to Prospective Juror Jose M. Nothing in the transcript of voir dire supports the prosecutor’s assertions that M. would be reluctant to return a death verdict or that he was ‘an extremely aggressive person.’ . . . [H]ere, the record of voir dire provides no support for the prosecutor’s stated reasons for exercising a peremptory challenge against M., and the trial court has failed to probe the issue [citations]. We find nothing in the trial court’s remarks indicating it was aware of, or attached any significance to, the obvious gap between the prosecutor’s claimed reasons for exercising a peremptory challenge against M. and the facts as disclosed by the transcripts of M.’s voir dire responses. On this record, we are unable to conclude that the trial court met its obligations to make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation’ (People v. Hall (1983)
We concluded in Silva that “the trial court’s ultimate determination—that defendant failed to meet his burden of proving intentional discrimination with
E. The Peremptory Challenge of Elizabeth G.
Returning to the facts of this case, we agree with the observation of the Court of Appeal below that “[t]he reasons given by the prosecutor in Silva, supra,
Here, the prosecutor first indicated, in response to the finding of a prima facie case below, that he had excused Elizabeth G. because she was a
The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. (Purkett, supra,
We acknowledge that, when viewed objectively, the notion that all persons employed as customer service representatives would have insufficient “educational experience” to effectively serve on juries is of questionable persuasiveness. But the proper function of the reviewing court in a case such as this is not to objectively validate or invalidate such a broadly stated premise. The proper function on review in this case was to determine whether the trial court’s conclusion—that the prosecutor’s subjective race-neutral reasons for exercising the peremptory challenges at issue here were sincere, and that the defendants failed to sustain their burden of showing “from all the circumstances of the case” (Wheeler, supra,
Here, at a bare minimum, Elizabeth G.’s occupation as a customer service representative was confirmed by her answers to the general questions, as were the additional circumstances that she had no prior jury experience and no past contact with the criminal justice system in any capacity. If a prosecutor can lawfully peremptorily excuse a potential juror based on a hunch or suspicion, or because he does not like the potential juror’s hairstyle, or because he observed the potential juror glare at him, or smile at the defendant
The trial court was obligated to evaluate “all the circumstances of the case” in the step three evaluation of whether the prosecutor’s race-neutral reasons for peremptorily excusing Hispanic Potential Jurors Mary L. and Elizabeth G. were sincere and credible, or whether the defendants instead had sustained their burden of proving unlawful discriminatory intent in the exercise of the peremptory challenges. (Wheeler, supra,
The prosecutor also gave as his second, demeanor-based reason for excusing Elizabeth G., that it appeared to him she was not paying attention to the proceedings, and that he felt she was not sufficiently involved in the jury selection process to make a good juror. Here again, at a bare minimum, the record of Elizabeth G.’s answers to the questions posed to all the prospective jurors reflects that she had no prior jury experience and no prior contact with the criminal justice system in any capacity. Unlike the reasons given by the
The Court of Appeal focused, in particular, on this second, demeanor-based justification given for the excusal of Elizabeth G., and found it significant that the trial court made no attempt to clarify or probe the prosecutor’s reasons for finding Elizabeth G.’s demeanor while in the jury box unsuited to jury service. But the trial court did expressly accept the prosecutor’s race-neutral reasons for the peremptory challenge to Elizabeth G., finding them sincere and genuine. Since the trial court was in the best position to observe the prospective jurors’ demeanor and the manner in which the prosecutor exercised his peremptory challenges, the implied finding, that the prosecutor’s reasons for excusing Elizabeth G., including the demeanor-based reason, were sincere and genuine, is entitled to “great deference” on appeal. (Batson, supra,
It is of course settled that “the propriety of the prosecutor’s peremptory challenges must be determined without regard to the validity of defendant’s own challenges.” (People v. Snow, supra,
The relevant segment of the record is quoted above. (Ante, at pp. 911-912.) Defendant Julian Reynoso’s counsel urged the court to conclude that because the prosecution would be expected to want a juror with law enforcement contacts to serve on the jury, the peremptory excusal of Elizabeth G., who had a Mend in the Porterville Police Department and a brother who worked for the Department of Corrections, must have been motivated by improper racial or group bias. The trial court responded that Prospective Juror Carolyn G. likewise had law enforcement contacts (a brother-in-law in the Merced Police Department) and was not peremptorily challenged by the prosecutor, even though she was also of Hispanic ancestry. It is true that Carolyn G. was ultimately excused by the defense, but that was not the court’s focus. The court’s point was simply this: if defense counsel’s threshold premise was true,
We are confident the trial court’s intended point was not that the defense had also excused Carolyn G., a Hispanic prospective juror, which might constitute error under People v. Snow, supra,
Where, as here, the trial court is fully apprised of the nature of the defense challenge to the prosecutor’s exercise of a particular peremptory challenge, where the prosecutor’s reasons for excusing the juror are neither contradicted by the record nor inherently implausible (Silva, supra,
Having considered all the circumstances of this case (Wheeler, supra,
III. CONCLUSION
The judgments of the Court of Appeal are reversed and these matters remanded to that court for further proceedings consistent with the views expressed herein.
George, C. J., Chin, J., and Brown, J., concurred.
Notes
Since these codefendants were jointly tried and convicted, and all of the facts and arguments relevant to the Batson/Wheeler issue that led to reversal were one and the same in the trial court, the Court of Appeal, and now in this court, we consolidated these matters for purposes of oral argument and opinion.
In context, it is clear that “the other person” the court was now referring to was Elizabeth G., whom the People had excused with their final peremptory challenge.
Again, in context, it is clear counsel is here referring to Elizabeth G.
“Typically, an appellate court has only a cold transcript, exhibits, and papers from the trial court’s file to go on. Even when a videotape is available we cannot experience what the trial judge experienced—the nuances, the inflections, the body language which traditionally form part of the basis on which credibility is evaluated by triers of fact. Despite technology, credibility determinations require a personal presence that a cold transcript cannot convey.” (Abbott v. Mandiola (1999)
The genuineness of the prosecutor’s peremptory challenge to the second Hispanic prospective juror, Mary L., was accepted by the Court of Appeal and did not appear to play a part in the reversals below: “In contrast [to Elizabeth G.’s excusal,] the prosecutor’s reasons for excluding [Mary L.] [she was a counselor for at-risk youth and would have undue sympathy for both defendants because they are young and at risk] included ‘a neutral explanation related to the particular case to be tried.’ (Batson v. Kentucky (1986)
Indeed, an attorney could peremptorily excuse a potential juror because he or she feels the potential juror’s occupation reflects too much education, and that a juror with that particularly high a level of education would likely be specifically biased against their witnesses, or their client’s position in the case. As long as such a peremptory challenge was nondiscriminatory and “legitimate” in the sense that it does not deny equal protection of the law (Purkett, supra,
Recently, in People v. Johnson, supra,
Here, in contrast, both the defendants and the murder victim were of Hispanic ancestry, a circumstance that might be viewed as neutralizing any suspected untoward belief on the prosecutor’s part that Hispanic jurors would tend to be biased in favor of, and thereby be more inclined to vote to acquit, the Hispanic defendants.
Justice Kennard also assails the trial court for using the term “systematic exclusion” in denying the Batson/Wheeler motion, suggesting the court thereby applied a wrong or outdated standard. (Dis. opn. of Kennard, J., post, at pp. 933-934.) Not so. Since the day the seminal decisions in Wheeler and Batson were each decided, it has been clearly understood that the unconstitutional exclusion of even a single juror on improper grounds of racial or group bias requires the commencement of jury selection anew, or reversal of the judgment where such error is established on appeal. (Batson, supra,
Our dissenting colleagues urge that it cannot be known with certainty whether the prosecutor would in fact not have peremptorily challenged Hispanic Prospective Juror Carolyn G., had the defense not itself first peremptorily excused her. The point merely echoes the Court of Appeal’s inappropriate speculation when that court noted that “[w]hether the People would have challenged [Carolyn G.] cannot be known because she was eliminated from the jury pool by the defense and at the time the Wheeler motion was made there were no Hispanic jurors remaining.” An appellate court’s proper role in reviewing a Batson/Wheeler claim is not to engage in speculation, but to instead draw appropriate inferences from the record under the deferential standard made applicable by this court in Wheeler, and by the high court in Batson. What is clearly established by this record is that the prosecutor passed and accepted the jury with Carolyn G. seated in the jury box four times before the defense elected to peremptorily excuse her. The record lends no support to the insinuation that the prosecutor “might” have challenged Hispanic Prospective Juror Carolyn G., had the defense not first done so. It does unequivocally establish that the prosecutor repeatedly passed and accepted the jury in this case with each of the three Hispanic prospective jurors in question seated in the jury box, and on four occasions, passed and accepted the jury with both Hispanic Prospective Jurors Elizabeth G. and Carolyn G. seated on the jury. That state of the record in turn lends support to an
Dissenting Opinion
I dissent. I would affirm the Court of Appeal’s judgment, which found that the trial court committed reversible error when it denied a
The majority’s decision reversing the Court of Appeal undermines the right of Hispanics to sit on juries in California state courts and the right of criminal defendants to jury-selection procedures free of purposeful discrimination against Hispanic prospective jurors. Here, the prosecutor said he struck a Hispanic woman from the jury because she was insufficiently educated and because she was not paying attention. Although the defense disputed both of these factual assertions, the trial court denied the defendants’ Batson/Wheeler motion without questioning the prosecutor, without making particularized findings, and by misstating the proper legal standard. Brushing all this aside, the majority indulges a presumption that both the prosecutor and the trial court acted properly, thereby adopting a standard of appellate review that effectively insulates discriminatory strikes from meaningful scrutiny at both the trial and appellate stages. For the reasons that follow, I disagree.
The use of peremptory challenges to eliminate prospective jurors because of group bias—that is, bias based on the juror’s race, gender, ethnic background, or similar cognizable characteristic—is prohibited by the federal Constitution (Powers v. Ohio (1991)
The United States Supreme Court has explained the three-step procedure a trial court must follow in ruling on a Batson motion; “[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.” (Purkett v. Elem (1995)
The issue here concerns step three, whether the defense “proved purposeful racial discrimination.” (Purkett v. Elem, supra,
As the majority admits, the prosecutor’s explanation that he challenged Elizabeth G. because her occupation as a sales representative showed inadequate education is “of questionable persuasiveness” (maj. opn., ante, at p. 924) and “a dubious notion” (id. at p. 925). But the majority refuses to acknowledge that by offering this implausible justification, the prosecutor triggered specific duties that this court has imposed on trial courts: first, to question the prosecutor to determine whether the offered justification, though implausible, was genuine rather than a pretext for purposeful discrimination, and, second, to make particularized findings resolving this credibility issue.
As this court explained in People v. Fuentes (1991)
The prosecutor’s second reason for striking Elizabeth G.—that she was not paying attention—is equally problematic. As the Court of Appeal correctly observed, and as the majority does not dispute, nothing in Elizabeth G.’s responses, nor anything else in the appellate record, indicated she was not paying attention. Of course, her demeanor could have conveyed the impression that she was not paying attention, and body language of that sort can be a proper basis for peremptory challenge. (Fuentes, supra, 54 Cal.3d at pp. 714-715.) But in the trial court the defense directly challenged the prosecutor’s assertion, saying “[t]here was nothing in her responses or her demeanor that justified] just excusing her . . . .” This contrary assertion created a factual dispute for the trial court to resolve. The court could easily have done so by saying whether its own observations of Elizabeth G. confirmed or refuted the prosecutor’s claim that she had not been paying attention. But the trial court did not resolve the dispute in this way, nor did the court question the prosecutor to determine, if possible, what particular aspect of Elizabeth G.’s demeanor may have caused the prosecutor to conclude, if he actually did, that she was not paying attention.
Rather than resolving the factual dispute by an express finding or by a focused inquiry, the trial court attempted to respond to another aspect of the defense argument. Defense counsel had asserted that because Elizabeth G. had ties to persons in law enforcement (specifically, friends in the Porterville Police Department and a brother who worked for the California Department of Corrections), she had characteristics normally considered favorable to the prosecution. Noting that the defense itself had exercised a peremptory challenge against a Hispanic juror named Carolyn G., the trial court addressed defense counsel with these words: “[Yjou argued that even a person who the People should want to have on, namely law enforcement background may still kick off because of being Hispanic. I’m just pointing out that
The majority asserts: “We are confident the trial court’s intended point was not that the defense had also excused Carolyn G., a Hispanic prospective juror, which might constitute error under People v. Snow [1987] 44 Cal.3d [216], 225 [
Here again, an appellate court cannot indulge a presumption, belied by the record, that the trial court discharged its duty to make a sincere and reasoned effort to evaluate the credibility of the prosecutor’s explanation. (See Silva, supra,
Another of the trial court’s comments supplies yet another reason not to presume that the court correctly applied the teachings of this court and the United States Supreme Court. In denying the defense Batson/Wheeler motion, the trial court said: “I don’t find that there has been a violation of Wheeler and that the—there was not a systematic exclusion of a recognized ethnic group, i.e., Hispanics in this case.” (Italics added.)
But as this court has explained, a showing of systematic exclusion is not required to establish a Batson/Wheeler violation. “California law makes clear that a constitutional violation may arise even when only one of several members of a ‘cognizable’ group was improperly excluded.” (People v. Montiel (1993)
The United States Supreme Court has also expressly rejected the notion that the defense must show systematic exclusion to establish a claim that the
Here, the trial court’s invocation of the long-abandoned “systematic exclusion” standard raises serious doubts that the trial court correctly understood and applied the analysis required by Batson, supra,
Citing a footnote in Fuentes, the majority asserts that, in the Batson/Wheeler context, the term “systematic exclusion,” although “somewhat of a misnomer,” is “an acceptable shorthand phrase for denoting Wheeler error.” (Maj. opn., ante, at p. 927, fn. 8.) Fuentes says nothing of the sort. What this court said was that “[t]he term [systematic exclusion] is not apposite in the Wheeler context, for a single discriminatory exclusion may violate a defendant’s right to a representative jury.” (Fuentes, supra,
Both this court and the United States Supreme Court have established safeguards to prevent parties from using peremptory challenges to remove prospective jurors on the basis of group bias—that is, bias based on the juror’s race, gender, ethnic background, or similar cognizable characteristic. These safeguards include procedures at both the trial and appellate level. The majority’s holding here substantially weakens these safeguards and misapplies controlling precedent. Therefore, I dissent.
Werdegar, J., and Moreno, J., concurred.
Dissenting Opinion
“[R]acial discrimination in the selection of jurors ‘casts doubt on the integrity of the judicial process,’ [citation] and places the fairness of a criminal proceeding in doubt. [][] The jury acts as a vital check against the wrongful exercise of power by the State and its prosecutors. [Citation.] The intrusion of racial discrimination into the jury selection process damages both the fact and the perception of this guarantee. ‘Jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice ....’” (Powers v. Ohio (1991)
In People v. Silva (2001)
PROCEEDINGS BELOW
At the step two hearing, the prosecutor asserted that he challenged Hispanic Prospective Juror Elizabeth G. because she was a “customer service representative” and “[i]n terms of that, we felt that she did not have enough educational experience.” He added, “It seemed she was not paying attention to the proceedings and the People felt that she was not involved in the process.” The trial court did not afford the defense an opportunity to respond to this proffer and instead issued a global finding: “I accept those reasons as being not based upon race or ethnicity. ... So the motion is denied.”
Counsel for Julian Reynoso then asked if he could “make a couple [of] points for the record” and the court consented.
*937 “[Counsel for Julian]: And a couple [of] points for the record is that [the prosecutor] passed on [Elizabeth G.] about seven or eight times. Then when I think he sensed that the defense was getting ready to pass, then it excused [Elizabeth G.]. There’s nothing about what [Elizabeth G.] said in terms of her background that would make her be sympathetic to the defendants in this case, when she said she was a customer service rep. Her husband is a construction supervisor. []Q She’s got friends in the Porterville [Police Department], her brother or brother-in-law works for the California Department of Corrections. There was nothing in her responses or her demeanor that would justify just excusing her other than it being a race-based exclusion is our position.
“The Court: And I believe that there was another Hispanic that was excused not by the People, but by the defense, and that was [Carolyn G.].
“[Counsel for Julian]: That was a legitimate reason. I didn’t excuse her.
“The Court: I’m not saying it wasn’t legitimate. You just brought up—I’m not arguing with you, but I want the record to be clear, you argued that even a person who the People should want to have on, namely law enforcement background, may still kick off because of being Hispanic. I’m just pointing out that [Carolyn G.] was another person that is Hispanic background but they did not kick off and I believe her background was that she had been the one who had been kidnapped.
“[Counsel for Julian]: Right. I would say she would want to be kept on by the People because she’s been a victim of a violent crime at gunpoint.
“The Court: But your argument was that so should the other person [Elizabeth G.] because they had law enforcement background.
“[Counsel for Julian]: I didn’t say she was law enforcement background.
“The Court: I thought you said—
“[Counsel for Julian]: I was looking over my notes in terms of what [Elizabeth G.] said in answer to the nine questions that are up on the little poster. She responded that she has friends in the Porterville [Police Department].
*938 “The Court: Right. Law enforcement people.
“[Counsel for Julian]: And a brother who works for California Department of Corrections. So I’m just saying that based on those responses, there’s no legitimate reason to exclude her based on those responses other than the fact that she has her—she’s Hispanic. I’m trying to make that for the record. [][] [The prosecutor] argued that [Mary L.] would be sympathetic because she works with at risk youth. That’s his reason for excusing her. But for the record also the reason [Carolyn G.] was excused, as I understand it from [counsel for John Reynoso], is because she was a victim of violent crime where guns were involved. That’s what we have here.
“The Court: Okay. Thank you.
“[The Prosecutor]: I’d like the record to reflect that defense counsel also had a challenge to [Mrs. T] [who] seemed and looked Hispanic to me and I think they exercised or kicked off her as well.[2 ]
“The Court: All right. We’ll see you tomorrow morning at 9:45.”
The transcript reflects counsel’s argument that there was nothing in Elizabeth G.’s background (law enforcement ties) or in her occupation as a customer service representative that would make her sympathetic to the defense; to the contrary, her law enforcement ties would, if anything, make her sympathetic to the prosecution. Counsel added that nothing in Elizabeth G.’s responses or demeanor would justify excusing her. Counsel asserted that the prosecutor’s stated race-neutral reasons for excusing Elizabeth G. were not legitimate and that she was excused because she was Hispanic.
Rather than respond directly to these claims, the trial court instead noted that defense counsel had excused a Hispanic juror (Carolyn G.). When counsel argued that the reasons for excusing Carolyn G. were legitimate, the court conclusorily replied that a Hispanic juror with law enforcement ties may still be peremptorily excused by the People, and a Hispanic juror who had been kidnapped had not been excused by the People. Counsel then made it clear that Carolyn G. was excused precisely because she was the victim of a violent crime (kidnapping and attempted rape) at gunpoint, which might make her sympathetic to the prosecution. Unquestionably, this is a legitimate race-neutral reason for excusing a prospective juror. (See, e.g., People v. Johnson (1989)
Counsel again explained that Carolyn G. was excused by the defense for the legitimate race-neutral reason that she was the victim of a kidnapping at gunpoint and might be considered sympathetic to the prosecution. He added that Mary L., the other Hispanic juror, was excused by the prosecution for the legitimate race-neutral reason that she worked with at-risk youth and might be considered sympathetic to the defense. In contrast, stated counsel, there was no legitimate race-neutral reason for excusing Elizabeth G. The court ignored counsel’s argument. Then the prosecutor spoke, and instead of justifying his stated reasons for excusing Elizabeth G., he reminded the court that defense counsel had challenged another prospective juror (Mrs. T.) who appeared to be Hispanic. Again, the trial judge did not respond, nor did he affirmatively state that the court’s prior ruling would stand. Instead, the judge simply dismissed the parties for the day.
THE MAJORITY’S ASSERTIONS
From this record, the majority makes two unfounded assertions: (1) the trial court was not required to make a sincere and reasoned attempt to evaluate the prosecutor’s explanation and clearly express its findings (Silva, supra, 25 Cal.4th at p. 386); and (2) there was no error under People v. Snow (1987)
UNDERMINING SILVA
Silva was a unanimous opinion decided just two years ago. We held that the trial court erred in denying a Wheeler motion as to a prospective Hispanic juror because “[n]othing in the transcript of voir dire supports the prosecutor’s assertions that [the juror] would be reluctant to return a death verdict or that he was ‘an extremely aggressive person.’ ” (Silva, supra, 25 Cal.4th at p. 385, italics added.) We then held that “when the
Yet today, without a sound basis in logic or law, a majority of this court elevates Silva’s “unsupported by the record” standard to a much stricter “contradicted by the record” standard: “Unlike the reasons given by the prosecutor in Silva, the prosecutor’s reasons given in this case for peremptorily excusing Elizabeth G. were neither inherently implausible, nor affirmatively contradicted by anything in the record.” (Maj. opn., ante, at pp. 925-926, italics added.) The majority also states: “Nor have we found anything in the record to directly contradict the trial court’s express findings to that effect, in contrast to the facts of Silva.” (Id. at p. 926, italics added.)
The effect of the majority’s ruling, as noted by Justice Kennard, is to insulate prosecutors and others who improperly discriminate against jurors for reasons of group bias. (Dis. opn. of Kennard, J., ante, at p. 930.) Here, the prosecutor’s first purported race-neutral reason for excusing Elizabeth G. was that, as a customer service representative, “she did not have enough educational experience.” I agree with the majority’s assertion that this reason is of “questionable persuasiveness” (maj. opn., ante, at p. 924) and “a dubious notion when viewed in isolation.” (Id. at p. 925.) However, I disagree that this reason, without further explanation, is “subjectively] genuine[]” (id. at p. 924, italics added) and “legitimate in the sense that it would not deny defendants equal protection of law.” (Id. at p. 925.) Simply stated, there is nothing in the record to suggest that customer service representatives generally, or this particular juror, lacked educational experience.
The majority, however, reasons that “If a prosecutor can lawfully peremptorily excuse a potential juror based on a hunch or suspicion, or because he does not like the potential juror’s hairstyle, or because he observed the potential juror glare at him, or smile at the defendant or defense counsel, then surely he can challenge a potential juror whose occupation, in the prosecutor’s
Moreover, the prosecutor’s first unsupported excuse was followed by a second excuse that was further disputed by defendant. Specifically, after the prosecutor stated “[i]t seemed like [Elizabeth G.] was not paying attention to the proceedings and [he] felt that she was not involved in the process,” the defense attorney replied, “[t]here was nothing in her responses or demeanor that would justify excusing her other than it being a race-based exclusion.” In other words, defense counsel argued to the court that the prosecutor’s stated race-neutral reason for excusing Elizabeth G. was unsupported by the record and contradicted by his own observations. Yet the trial court did not attempt to resolve this factual dispute by stating its own observations of the juror’s alleged inattentiveness. Instead, the trial court completely ignored the defense attorney’s observations and argument.
The majority argues that the prosecutor’s demeanor-based reason is supported by the record because Elizabeth G. stated during voir dire that “she had no prior jury experience and no past contact with the criminal justice system in any capacity.” (Maj. opn., ante, at p. 924.) But the prosecutor did not rely upon this statement and, as noted, Batson requires that we examine the prosecutor’s stated excuse. The prosecutor stated that Elizabeth G. “was not paying attention.” Obviously, not paying attention is logically unrelated to prior jury service or prior contact with the criminal justice system. More importantly, the prosecutor’s assertion that Elizabeth G. “was not paying attention” was directly contradicted by the defense. As noted by Justice
Thus, in the present case, we have one race-neutral reason (education) that is unsupported by the record and belied by common knowledge and common sense, and a second race-neutral reason (demeanor) that was contradicted by defense counsel.
SNOW VIOLATION
In Wheeler, “[i]nstead of justifying his own conduct, the prosecutor simply retorted that defense counsel seemed in their turn to be striking from the jury . . . most of those with Spanish surnames.” (Wheeler, supra,
Here, defense counsel contested the prosecutor’s purported race-neutral reasons for challenging Juror Elizabeth G. As noted above, the trial court, in violation of Silva, failed to sincerely evaluate the prosecutor’s explanation and failed to make particularized findings. (Silva, supra,
The majority attempts to justify the court’s actions by stating: “The court’s point was simply this: if defense counsel’s threshold premise was true, then the prosecutor, consistent with that premise, had indeed not excused Carolyn G. given her favorable law enforcement contacts, notwithstanding her Hispanic ancestry. In context, the point the trial court was obviously trying to make was that the prosecutor did seek to retain jurors with law enforcement contacts who would normally be deemed favorable to the prosecution,
The majority’s assertion is unfounded.
The majority today turns a blind eye to our recent precedent and effectively allows prosecutors to improperly discriminate against prospective Hispanic, African-American and other cognizable group jurors with impunity. The majority opinion signals a significant retreat in the evolution of our Wheeler jurisprudence and strikes a major blow against a defendant’s constitutional right to a fair, impartial, and representative jury. Therefore I dissent.
Kennard, J., and Werdegar, J., concurred.
Appellant’s petition for a rehearing was denied October 29, 2003.
In People v. Johnson (2003)
The prospective juror that the prosecutor was referring to was excused by the defense during the selection of alternate jurors.
This last statement is factually incorrect. The trial court made no express findings as to Prospective Juror Elizabeth G.’s education or demeanor.
See also Hernandez v. New York (1991)
The majority attempts to bolster its position by pointing out that an attorney could legitimately “excuse a potential juror because he or she feels the potential juror’s occupation reflects too much education.” (Maj. opn., ante, at p. 925, fn. 6.) While common knowledge and common sense might suggest that doctors, mathematicians and engineers, for example, are highly educated and therefore might have “too much education” to sit on a particular jury, there is no basis upon which to conclude that customer service representatives do not have enough educational experience to sit on a particular jury.
The majority attempts to support its claim that the prosecutor’s reasons for challenging Elizabeth G. were not pretextual by pointing out that he accepted “the jury 14 times with Elizabeth G. seated in the jury box” before challenging her. (Maj. opn., ante, at p. 926.) This assertion is misleading because it neglects two factors: (1) because this was a two-defendant case, each side had 30 peremptory challenges in selecting the jury (Code Civ. Proc. § 231, subd. (a)) and the two defense attorneys were alternating their 20 joint challenges; this allowed the prosecutor to wait before exercising his peremptory challenges; and (2) the trial court used the “six pack” method of jury selection, which also allows attorneys to manage their peremptory challenges since they know in advance which six prospective jurors will replace the prospective jurors in the jury box who are challenged. Specifically, the court called the names of 18 prospective jurors: 12 prospective jurors were placed in the jury box (one of whom was Elizabeth G.), and an additional six prospective jurors were seated outside the jury box (the six-pack). The court then posed questions to the 18 prospective jurors and once this process was completed, seven peremptory challenges were exercised, leaving 11 prospective jurors in the jury box and leaving no prospective jurors in the six-pack. At this juncture, seven additional prospective jurors were called by the court; one prospective juror was placed in the jury box, and the remaining six prospective jurors were placed in the six-pack. Once the questioning of these seven prospective jurors was completed (the second round of questioning), the above process was repeated. Jury selection was completed after three rounds of questioning. As noted, Elizabeth G. was one of the original 12 prospective jurors placed in the jury box. The prosecutor challenged one juror (who knew defense counsel) after the first round of questioning and the defense challenged six jurors. Seven new names were called, including Mary L. and Joe S. After the defense had challenged four jurors following the second round of questioning, the prosecutor challenged Joe S., a prospective juror who worked in a law office. The defense then passed. The prosecutor then challenged the first Hispanic prospective juror, Mary L. After defense challenged a juror, seven new names were called, including Carolyn G. Carolyn G. was the fourth prospective juror challenged by the defense after the third round of questioning. The prosecutor then excused Elizabeth G. The defense and prosecutor then accepted the jury. Two events stand out: (1) the prosecutor’s challenge of the first Hispanic juror (Mary L.) immediately after defense counsel had accepted the jury (voir dire would have otherwise ended); and (2) the prosecutor’s challenge of Elizabeth G. two rounds subsequent to her name being called (he exercised his three other peremptory challenges in the same round those jurors’ names were called). Standing alone, these two events are arguably innocuous; but viewed in the context of the other evidence of the prosecutor’s discriminatory intent, his peremptory challenge strategy is consistent with an intent to remove Hispanics from the jury.
See also People v. Fuentes (1991)
The majority’s premise is also flawed because “there [is] no way to determine whether the prosecutor would have challenged Carolyn G. had the defense not done so first.” (Dis. opn., Kennard, J., ante, at p. 933.) The majority accuses the dissenting justices of “engag[ing] in speculation” on this point because the “record lends no support to the insinuation that the prosecutor ‘might’ have challenged” Carolyn G. because “the prosecutor passed and accepted the jury with Carolyn G. seated in the jury box four times before the defense elected to peremptorily excuse her.” (Maj. opn., ante, at pp. 928-929, fn. 9.) This is the sheerest conjecture and is completely undermined by the record. As pointed out by the majority on three occasions, the prosecutor accepted Elizabeth G. “14 times” before he peremptorily excused her. (Maj. opn., ante, at pp. 909, 926.) It is disingenuous to now claim there is “no support” in the record that the prosecutor would not have excused Carolyn G. where only four opportunities for a peremptory challenge had passed.