People v. Fuller

• Decision Date: 08 October 1982
• Docket Number: Cr. 22634
• Citation: 186 Cal.Rptr. 283,136 Cal.App.3d 403
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Alonzo FULLER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 283

186 Cal.Rptr. 283

136 Cal.App.3d 403

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Alonzo FULLER, Defendant and Appellant.

Cr. 22634.

Court of Appeal, First District, Division 1, California.

Oct. 8, 1982.

As modified on Denial of Rehearing Nov. 5, 1982.

Hearing Denied December 1, 1982.

Paul W. Comiskey, William M. Robinson, Comiskey & Robinson, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Herbert F. Wilkinson, Donna B. Chew, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

BANCROFT, Associate Justice. ^*

Defendant Fuller appeals from a judgment convicting him of assaulting Diana with intent to commit rape while on parole from a previous conviction of rape. (Pen.Code, §§ 220, 1203.085, 667.5, subd. (b).)

Shortly after Diana alighted from a bus at Foothill and 55th in Oakland and commenced walking home at approximately 10 p. m., October 21, 1980, she was accosted by a black male she had observed following her. He jumped in front of her grabbing her arms. She screamed and struggled as he tried to pull her toward some bushes and trees. He demanded: "Give me some pussy" and "Drop your clothes right here."

The struggle proceeded to the street where a passing motorist (Mr. "H") stopped, exited his vehicle and inquired whether Diana knew her assailant. When she answered "No. He tried to rape me," the assailant released her, threatened to kill her, hit her on the head, kicked her in the leg and ran away. Additional facts, as necessary, will be mentioned in the course of this opinion.

Before the jury, the defense was alibi and the critical question was one of identification. On appeal, Fuller claims reversible error in that the jury selection process was invalid, the prosecution improperly withheld discovery pertinent to identification and the court failed to give instructions defining rape.

At the outset, we confront Fuller's contention that the prosecution used peremptory challenges to remove three black prospective jurors on the sole ground of group bias in violation of the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. ¹ Since we conclude that the case must be reversed and remanded for a new trial on account of the prosecution's improper use of peremptory challenges, we need not discuss other defense contentions.

In the case of People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (referred to hereafter as "Wheeler"), our high court concluded that, "the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution. This does not mean that the members of such a group are immune from peremptory challenges: individual members thereof may still be struck on grounds of specific bias, as defined herein. Nor does it mean that a party will be entitled to a petit jury that proportionately represents every group in the community: we adhere to the long-settled rule that no litigant has the right to a jury that mirrors the demographic composition of the population, or necessarily includes members of his own group, or indeed is composed of any particular individuals. [Citations.]

"What it does mean, however, is that a party is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits." (22 Cal.3d, at pp. 276-277, 148 Cal.Rptr. 890, 583 P.2d 748.)

Section 1069 of the Penal Code defines a peremptory challenge as "an objection to a juror for which no reason need be given ...." The Wheeler majority adopted the presumption that a party exercising a peremptory challenge is doing so on a constitutionally permissible ground and declared that presumption to be rebuttable. (22 Cal.3d, at p. 278, 148 Cal.Rptr. 890, 583 P.2d 748.)

In fashioning a remedy, the court stated that the objecting party "must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, ... he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias." (22 Cal.3d, at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748, fn. omitted.)

The trial judge must determine, based upon the showing made by objecting counsel and the court's observations of the voir dire process, whether a prima facie case of group bias has been made out. In making that determination the court "must determine whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone." (People v. Wheeler, supra, 22 Cal.3d, at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.) "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." (Ibid, fn. omitted.)

In the Wheeler case the prosecution apparently ² used seven peremptory challenges to excuse black jurors called to the jury box in a case in which there were two black defendants accused of the murder of a white grocery store owner in the course of a robbery. When defense counsel moved for a mistrial, the court asked the prosecutor whether there would be a response but also indicated that he was not required to respond. There was no response and the court denied the motion for mistrial without comment. So far as appears, the case was tried before an all white jury. Our high court reversed the judgment ostensibly because the trial judge assumed that the defendant had no rights he could assert respecting the use of peremptory challenges in that case.

People v. Johnson (1978) 22 Cal.3d 296, 148 Cal.Rptr. 915, 583 P.2d 774, is a companion case to Wheeler which was decided on the same day. In Johnson, the defendant was a black male charged with the rape of a white female. During voir dire defense counsel stated that the prosecutor had used a peremptory challenge against one of only two black jurors and that he would object to the use of another such challenge against the other black juror.

The prosecutor admitted he intended to use his peremptory challenges " 'As long as I have the ability on any black juror that is called to sit in this case.' " (People v. Johnson, supra, 22 Cal.3d, at p. 298, 148 Cal.Rptr. 915, 583 P.2d 774.) He stated certain of his witnesses made racially prejudicial statements [nigger] that might be disclosed to the jury, " 'which I would think would make it very difficult for any black person to be totally objective about it ... either consciously or subconsciously." (Id., at p. 299, 148 Cal.Rptr. 915, 583 P.2d 774.)

After the jury was sworn, defendant moved for a mistrial on the peremptory challenge grounds set forth in Wheeler. After hearing the prosecutor expand upon his earlier comments, the court denied the motion without comment and the case was heard before an all white jury. Our high court reversed because the prosecutor's reasons were "insufficient as a matter of law." (People v. Johnson, supra, 22 Cal.3d, at p. 299, 148 Cal.Rptr. 915, 583 P.2d 774.)

In People v. Allen (1979) 23 Cal.3d 286, 152 Cal.Rptr. 454, 590 P.2d 30, two black defendants were convicted of aggravated assault by a life prisoner (Pen.Code, § 4500) and were sentenced to death. The victim was a white state correctional officer who had been stabbed to death. The prosecutor over defense objections, used 14 peremptory challenges against 11 black potential regular jurors passed for cause and seated in the jury box plus three black potential alternate jurors passed for cause.

In response to defense objections, the prosecutor simply stated 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. ³

The defendant's motion was denied and the case was tried before an all white jury. Our high court reversed on the basis that on the record before the trial court, a prima facie case was made and the court erred in not requiring the prosecutor to rebut that showing. (People v. Allen, supra, 23 Cal.3d, at p. 294, 152 Cal.Rptr. 454, 590 P.2d 30.)

In People v. Rousseau (1982) 129 Cal.App.3d 526, 179 Cal.Rptr. 892, the prosecutor used two peremptory challenges against the only two black jurors on the panel. The race of defendant was not shown in that decision wherein a case in which the charges were two counts of grand theft (Pen.Code, §§ 484, 487); conspiracy to commit theft (Pen.Code, § 182, subd. (4)); and a failure to remit unemployment taxes (Rev. & Tax.Code, § 19408). "The prosecution ... exercised two peremptory challenges against black jurors. The trial court took judicial notice that these jurors were the only blacks on the panel." (Id., at p. 536, 179 Cal.Rptr. 892.) The court's opinion disclosed that Rousseau's showing consisted solely of defense counsel's statement that the excused black jurors were the only two blacks on the whole panel. On that showing, the court determined that the statement did not constitute a prima facie showing.

Hence, in Wheeler, Johnson and Allen, our high court found that a prima facie case of group bias had been made out...