People v. Fuentes

• Decision Date: 31 October 1991
• Docket Number: No. S004785,No. 26419,S004785,26419
• Court: California Supreme Court
• Parties: , 818 P.2d 75, 60 USLW 2371 The PEOPLE, Plaintiff and Respondent, v. Jose Leon FUENTES, Defendant and Appellant. Crim.

Page 792

286 Cal.Rptr. 792

54 Cal.3d 707, 818 P.2d 75, 60 USLW 2371

The PEOPLE, Plaintiff and Respondent, v. Jose Leon FUENTES, Defendant and Appellant.

No. S004785.

Crim. No. 26419.

Supreme Court of California,

In Bank.

Oct. 31, 1991.

Chris G. Gasparich, Crosby, Heafy, Roach & May, Oakland, under appointment by the Supreme Court, and Michael J. Hassen, Walnut Creek, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Asst. Atty. Gen., Donald E. De Nicola, Susan Lee Frierson and Carol Frederick Jorstad, Deputy Attys. Gen., for plaintiff and respondent.

PANELLI, Justice.

Defendant Jose Leon Fuentes appeals from the sentence of death imposed on retrial after this court reversed the judgment of death in People v. Fuentes (1985) 40 Cal.3d 629, 221 Cal.Rptr. 440, 710 P.2d 240 (Fuentes I ). In Fuentes I a jury had convicted defendant of first degree murder (Pen.Code, §§ 187, 189), ¹ attempted robbery (§§ 664, 211), and automobile theft (Veh.Code, § 10851) and had found true a special circumstance allegation of attempted robbery (§ 190.2, subd. (a)(17)(i)). The special circumstance allegation has been retried and found true, and the jury has reimposed the death penalty. This appeal is automatic (§ 1239, subd. (b)).

We conclude that defendant's constitutional right to trial by a jury drawn from a representative cross-section of the community (Cal. Const., art. I, § 16) was violated by the trial court's failure to carefully evaluate the prosecutor's explanations for peremptory challenges to Black prospective jurors, which it must do in order to determine whether the challenges reflected a constitutionally impermissible group bias. (See People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (hereafter Wheeler ); People v. Hall (1983) 35 Cal.3d 161, 197 Cal.Rptr. 71, 672 P.2d 854.)

The evidence presented on retrial of the special circumstance and penalty phases paralleled that introduced in the first trial: On December 1, 1980, defendant and an accomplice, both of whom were armed, attempted to rob a Brinks guard as he was leaving the cashier's office of a department store. Defendant and the guard fell, wounded, when gunshots were fired. The guard died. The accomplice escaped and was never apprehended. A gun found near defendant proved to be the weapon which had fired the fatal bullets. At the penalty phase, defendant stipulated that he had suffered prior robbery convictions. In mitigation, he presented the testimony of his family members and prison counselor, who noted his exemplary academic and work record while incarcerated. (See Fuentes I, supra, 40 Cal.3d at pp. 633-637, 221 Cal.Rptr. 440, 710 P.2d 240.)

The Voir Dire.

Following Witherspoon voir dire (Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776) and voir dire on challenges for cause, several jurors were excused for cause; thereafter, prospective jurors returned to court for peremptory challenge. ² The prosecutor exercised 19 peremptory challenges. Of the 13 prospective trial jurors challenged, 10 were Black. Of the 6 prospective alternates challenged, 4 were Black. Asfinally constituted, the trial jury included 3 Black jurors and 3 Black alternates.

Defense counsel made the first of several objections on Wheeler grounds after the prosecutor exercised each of his initial four challenges against Black prospective jurors. The trial court asked the prosecutor for an explanation, but the prosecutor was not prepared to give one. He said: "I have only 'yes/no' on my sheet, Your Honor. To be able to answer any challenge, I will need to get the transcripts and the questionnaires and to go over it [sic] in some detail with the court. I would not begin to try and remember at this point all of the reasons which is [sic] necessary for the People to put on the record in order to satisfy the court that the purpose and reason for challenging these jurors has [sic] nothing to do with race but strictly with their answers to the questions and the voir dire itself." The trial court indicated that it would note which prospective jurors were Black and that it would "have the reasons set forth by the People" before trial commenced.

The prosecutor thereafter excused, in this order, two more Black jurors, one juror who was not Black, and then yet another Black juror. When defense counsel again objected on Wheeler grounds, the court stated that it would "consider [counsel's objection] a continuing motion" but did not inquire further into the matter. The prosecutor's next three challenges were also to Black jurors. Finally, the prosecutor excused two jurors who were not Black. In total, the prosecutor exercised 13 peremptory challenges to the trial jury. Ten of his first 11 challenges were to Black jurors. During the ensuing selection of alternates, the prosecutor peremptorily challenged 4 more Black jurors.

At the conclusion of voir dire, the court finally addressed the Wheeler motion. The prosecutor began by arguing that his challenges did not establish a prima facie case of group bias. When defense counsel pointed out that the prosecutor had exercised almost every challenge against Blacks, the prosecutor irrelevantly responded: "And I think that the defense has excused almost all White jurors, your Honor." At this point, the court instructed the prosecutor: "[G]o down and get your records so we can put [your reasons for excusing Blacks] in the record."

More than three hours later, the prosecutor returned with his records. During the ensuing two hours he perused the daily transcripts and the questionnaires, offering a multitude of purported reasons--as many as a dozen or more in most cases--to justify his challenge of each juror. The prosecutor apparently did not have notes on the reasons for his challenges; he sometimes quoted and sometimes paraphrased a juror's response, but without page citation to the transcript or to the questionnaire. Defense counsel complained that the prosecutor was merely reading from the transcripts and was not giving the "reasons" why the juror was excluded, i.e., was not explaining how the juror in question was revealing a possible bias that was relevant to the case. Counsel also expressed concern that the prosecutor was not presenting the context of his quotations and paraphrases.

Following the prosecutor's rambling attempt to explain his challenges, the court took defendant's Wheeler motion under submission. On the following morning, the court ruled that no prima facie showing had been made. Despite this ruling, however, the court examined the prosecutor's purported reasons for excusing the 14 Black jurors. Addressing the challenged jurors as a group, the court found that some of the prosecutor's excuses were "totally unreasonable" and others "very spurious." The court also stated, however, that there were "some good reasons" for the prosecutor's challenges, namely, that certain unidentified prospective jurors or their relatives had been arrested, had leanings against the death penalty, or, in one case, had given responses that "should not be trusted." Except for that one juror, however, identified only as "a gentleman from the navy," the court did not identify any particular juror or indicate which of the purportedly "good reasons" applied to which jurors. In conclusion, the trial court found that the People had not excluded Blacks improperly and denied defendant's motion. Later, after the trial court had gone on to other pretrial matters, the prosecutor interrupted to add that his challenges had not been based solely on "particular questions" but also on "body language." The trial court ignored the interruption.

Defendant assigns as error the trial court's denial of his motion pursuant to Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748. The principles first articulated in that case are now well settled. (See People v. Johnson (1989) 47 Cal.3d 1194, 1215-1216, 255 Cal.Rptr. 569, 767 P.2d 1047; People v. Turner (1986) 42 Cal.3d 711, 715-717, 230 Cal.Rptr. 656, 726 P.2d 102; People v. Hall, supra, 35 Cal.3d 161, 166-167, 197 Cal.Rptr. 71, 672 P.2d 854.) A party may not use peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. (Wheeler, supra, 22 Cal.3d at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748.) In Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the United States Supreme Court held that peremptory challenges based solely on race also violated the federal equal protection clause when the defendant is a member of the race being challenged. Although Batson has no application in this case, ³ the high court has recently extended the Batson holding and given a defendant, regardless of race, standing to object to the racially discriminatory use of peremptory challenges. (Powers v. Ohio (1991) 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411.) Under Wheeler, of course, which is based on the right to trial by a representative jury, a defendant need not be a member of the group to challenge its exclusion. (Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.)

If a party believes an opponent is improperly using peremptory challenges for a discriminatory purpose, that party must make a timely objection and a prima facie showing that the jurors are being excluded on the basis of group bias. (Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.) To establish a prima facie case, the moving party should first make as complete a record as possible; second, the moving party must establish that the persons excluded are members of a cognizable group; and third, the moving party must show a strong likelihood that the persons are being...