People v. Allen

• Decision Date: 13 February 1979
• Docket Number: Cr. 19519
• Court: California Supreme Court
• Parties: , 590 P.2d 30 The PEOPLE, Plaintiff and Respondent, v. Eugene ALLEN and Ernest E. Graham, Defendants and Appellants.

Page 454

152 Cal.Rptr. 454

23 Cal.3d 286, 590 P.2d 30

The PEOPLE, Plaintiff and Respondent, v. Eugene ALLEN and Ernest E. Graham, Defendants and Appellants.

Cr. 19519.

Supreme Court of California.

Feb. 13, 1979.

Rehearing Denied March 29, 1979.

Robert D. Carrow, Novato, and John F. Cruikshank, Jr., Stockton, under appointment by the Supreme Court, Robert Y. Bell, Santa Rosa, James Larson, Doron Weinberg and Larson & Weinberg, San Francisco, for defendants and appellants.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Ezra Hendon, Deputy State Public Defender, Jerome B. Falk, Jr., Anthony G. Amsterdam, Stanford, Jack Greenberg, James M. Nabrit, III, Peggy C. Davis, New York City, Linda S. Greene, Boston, Mass., David Evan Kendall, New York City, Lowell Johnston, Charles C. Marson, Margaret C. Crosby, Alan L. Schlosser, San Francisco, Robert Nicco, Public Defender, San Francisco, Sheldon Portman, Public Defender, Santa Clara, Kenneth M. Wells, Public Defender, Sacramento, Ephraim Margolin, San Francisco, and Dennis P. Riordan, Deputy State Public Defender, as amici curiae for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Timothy A. Reardon, William D. Stein and Herbert F. Wilkinson, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

In March 1976, defendants Eugene Allen and Ernest E. Graham were convicted of violating Penal Code section 4500, aggravated assault by a life prisoner. At the time the offense was committed, section 4500 prescribed the death penalty as the automatic, mandatory punishment whenever, as in this case, the assault was directed against a nonprisoner and resulted in the victim's death within a year and a day. Accordingly, the trial court sentenced both defendants to death. The case is now before this court pursuant to the statutorily prescribed automatic appeal. (Cal.Const., art. VI, § 11; Pen.Code, § 1239, subd. (b).)

On appeal, defendants attack their convictions on numerous grounds. In view of this court's recent decision in People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, however, we find it necessary to address only defendants' principal challenge to the verdict of guilt, an attack focusing upon the prosecutorial use of peremptory challenges to exclude all potential jurors who were black from the petit jury. In Wheeler, we concluded that under the California Constitution the prosecution may not exercise its peremptory challenges on the basis of "group bias" to exclude potential jurors from a jury in a criminal case; pursuant to that conclusion, we held that when a defendant makes a prima facie showing that the prosecution has used its peremptory challenges in such a manner in a particular case, the burden shifts to the prosecution to demonstrate that the peremptory challenges in question have not been based on group bias but rather rest on independent, legitimate grounds.

As we shall explain, under the guidelines articulated in Wheeler defendants in the instant case clearly established a prima facie case that the prosecution was exercising its peremptory challenges in an unconstitutional fashion. Inasmuch as the record contains no justification for the prosecution's challenged course of conduct, our Wheeler decision establishes that the trial court erred in rejecting defendants' objections to the jury selection process and in permitting the case to be tried by a jury from which black prospective jurors had been unconstitutionally excluded. Accordingly, we conclude that the judgments must be reversed.

1. The facts and proceedings below.

On November 27, 1973, a state correctional officer was assaulted and stabbed numerous times while on duty in Deuel Vocational Institute, a state prison facility; the officer died the same day as a result of the injuries sustained in the attack. On December 5, 1973, the San Joaquin County Grand Jury returned a two-count indictment against defendants as a result of the incident; the indictment charged both with violation of Penal Code section 187 (murder) and section 4500 (aggravated assault by a life prisoner).

On October 7, 1972, just prior to the first trial in this matter, the superior court dismissed the murder charge against each defendant upon motion of the district attorney; as a consequence, the two defendants went to trial solely on the section 4500 charges. The jury in the initial trial could not agree on a verdict and a mistrial was declared. Thereafter, defendants' motion for change of venue was granted and the case was transferred to the San Francisco Superior Court.

On March 10, 1976, selection of the jury for the second trial began. The record reflects without contradiction that over the course of the jury selection process, the prosecution continually utilized its peremptory challenges to remove black jurors who had been passed for cause. From the outset of the jury voir dire, counsel for both defendants objected to the district attorney's peremptory challenge of black jurors, pointing out that the need for a truly representative jury was particularly great in this case because both defendants are black, the victim of assault was a white prison guard and the majority of the prosecution witnesses, as revealed by the first trial, were white. After a brief argument of the point in chambers, the trial court overruled defense counsel's initial objection.

As the jury selection process progressed and the district attorney continued to exercise his peremptory challenges against each black prospective juror who was seated in the jury box, defense counsel reiterated their objections and noted that the prosecutor was excluding both black jurors to whom he had addressed hardly any questions ¹ and also black jurors to whom he had addressed questions and whose answers revealed backgrounds and family contacts that were similar to white jurors with whom the prosecution was satisfied. ² Defense counsel asserted that the entire pattern of the prosecutor's actions left no doubt that the basis for the district attorney's use of his peremptory challenges was simply the race of the potential juror.

In response, the district attorney made no attempt to justify his use of the peremptory challenge or to proffer an alternative explanation to that suggested by defense counsel. Rather, the district attorney took the position that because defense counsel had not demonstrated that the district attorney's office had routinely utilized peremptory challenges to exclude blacks from juries over a substantial period of time, the defendants had not made out a prima facie case of unconstitutional action and no explanation was necessary. The trial court accepted the district attorney's argument and overruled defendants' objections to the jury selection procedure.

By the conclusion of the jury selection process, the prosecutor had utilized peremptory challenges to remove all 11 black prospective jurors who had been tentatively seated on defendants' petit jury. In addition, the prosecutor, again through the use of his peremptory challenges, had dismissed the three black individuals who had tentatively been seated as alternate jurors. As a consequence, although the venire from which the jury was selected included a broad cross-section of racial and ethnic groups, none of the 12 jurors or the 4 alternate jurors who were ultimately selected to decide defendants' guilt or innocence were black.

On March 31, 1976, the jury returned a verdict finding both defendants guilty of violating Penal Code section 4500. On April 2, 1976, pursuant to the mandatory provisions of section 4500, the trial court sentenced each of the defendants to death. On appeal, defendants challenge both their convictions and their death sentences.

2. Defendants' convictions must be reversed in light of People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.

As noted above, although defendants claim that their convictions are fatally flawed in a substantial number of respects, in view of this court's recent decision in People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 we need only address defendants' principal claim of error, arising from the district attorney's use of peremptory challenges to exclude all blacks from the jury. As we explain, under the circumstances of this case our holding in Wheeler clearly dictates a reversal of the convictions.

In Wheeler, as in the instant matter, defendants in a criminal case maintained that the district attorney had violated defendants' constitutional right to a fair trial by jury by the district attorney's use of peremptory challenges to exclude all qualified blacks from the jury solely on the basis of their race. Grounding our decision on the relevant provision of our state Constitution, we sustained the defendants' claim, holding "that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by jury drawn from a representative cross-section of the community under article 1, section 16 of the California Constitution." (22 Cal.3d at pp. 276-277, 148 Cal.Rptr. at p. 903, 583 P.2d at p. 761.)

Prior to our Wheeler decision, of course, it had long been clear that the federal Constitution prohibits a state from excluding individuals from a jury on the basis of their race. (See, e. g., Strauder v. West Virginia (1879) 100 U.S. 303, 25 L.Ed. 664; Smith v. Texas (1940) 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84.) Wheeler established that under the California Constitution such racial exclusion is no less offensive when it is accomplished under the rubric of a peremptory challenge.

In addition to establishing this fundamental constitutional principle, our Wheeler opinion went on to explain how, in practical terms, this constitutional principle is to be implemented. We reco...