People v. Garcia, G022376.
| Citation | 92 Cal.Rptr.2d 339,77 Cal.App.4th 1269 |
| Decision Date | 31 January 2000 |
| Docket Number | No. G022376.,G022376. |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Cano GARCIA, Defendant and Appellant. |
Michael Satris, under appointment by the Court of Appeal, Bolinas, for Defendant and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Carl Horst and Craig S. Nelson, Deputy Attorneys General, for Plaintiff and Respondent.
Cano Garcia was charged with burglary. During his trial, it somehow became known that two members of the jury venire were lesbians. In fact, they both worked for the same gay and lesbian foundation. After the prosecution excused both women, defense counsel made a Wheeler motion.1 There was a discussion at the bench, and the trial court denied the motion, explaining, This is Garcia's sole assignment of error.
I
In 1986, the United States Supreme Court decided Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, holding that the Equal Protection Clause of the United States Constitution prohibits jury selection based upon racial stereotyping. Eight years later, it decided J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89, extending the rationale of Batson to gender discrimination. To date, those are the only two classifications the Supreme Court has recognized as prohibited bases for exclusion of jurors under the Equal Protection Clause. It has not yet dealt with an equal protection challenge which did not involve the "strict" or "heightened" scrutiny applied to race- and gender-based classifications of all sorts (see Reed v. Reed (1971) 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225; Personnel Administrator of Mass. v. Feeney (1979) 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870), so it has not yet been established whether such scrutiny is a sine qua non of Batson error or merely a common characteristic.
Other courts have struggled with classifications as diverse as religion, age, socioeconomic status, union membership and obesity — with varying degrees of success. But in this case we have reached territory which, 13 years after Batson and more than 2 decades after its California predecessor (People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748), is still terra incognita: sexual orientation.2
The terrain before us is as stark as a moonscape and without discernible footprints: Our only issue is whether lesbians — and presumably gay males — constitute a cognizable class whose exclusion resulted in a jury that failed to represent a cross section of the community and thereby violated Garcia's constitutional rights. For reasons we explain here, we are convinced they do. We are convinced they must. But we recognize the fact the court's ruling obviated the prosecution's defense of its peremptories, so we remand the case for a determination by the trial court whether the prosecution's challenges had valid constitutional bases.
Federal authority is sparse on this issue. It was raised in the Ninth Circuit in Johnson v. Campbell (9th Cir.1996) 92 F.3d 951, but the record was so insubstantial the court chose to assume that sexual orientation was a cognizable class yet reject the appeal because it could not be shown that there was purposeful discrimination. In that case, plaintiffs counsel in a civil rights litigation objected to the use of a peremptory challenge by defense counsel against a prospective juror. Plaintiffs counsel asserted he could tell the prospective juror was gay based on, inter alia, "affect" and "mannerisms," and he thought that was why his opponent had exercised a peremptory challenge. He asked the trial judge to inquire into the prospective juror's sexual orientation so as to determine whether a Batson motion was called for. The trial court declined, and the Ninth Circuit affirmed, holding that even assuming sexual orientation to be a prohibited basis for peremptory challenges, and even assuming it could be shown the individual juror was gay, the record was insufficient to suggest the challenge had been based upon purposeful discrimination.
But other than this case, we find nothing discussing the issue in all of federal authority. Which is not surprising. This is not an issue which comes up in the course of ordinary — or even extraordinary — voir dire. Sexual orientation is not something likely to be volunteered, either by heterosexuals or homosexuals, and it is even less likely to be the subject of inquiry by court or counsel. We regret that our record in this case does not clearly reveal how it came up here. But it has come up, and it is our obligation to determine its import in this case of first impression.
As noted, most federal jurisprudence in this area deals with equal protection of the laws and the application of that guarantee to state and local governments through the Fourteenth Amendment. In Batson, the Supreme Court held that exclusion of black jurors on the basis of their race violated the Fourteenth Amendment's guarantee of equal protection of the laws. It based its decision on earlier cases in which it had held that equal protection (Strauder v. West Virginia (1879) 100 U.S. 303, 25 L.Ed. 664) and due process (Duncan v. Louisiana (1968) 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491) required that a criminal jury be drawn from the community and selected by non-discriminatory criteria. (Batson v. Kentucky, supra, 476 U.S. at pp. 83, 85-86, 106 S.Ct. 1712.) Batson provided that to establish a case of impermissible exclusion for equal protection purposes, the defendant must show that he was a member of a "cognizable racial group," and that the prosecution had systematically excluded members of that group from the jury venire. (Id. at p. 96, 106 S.Ct. 1712.) The court's idea of what would qualify a group as cognizable is indicated by its citation to its earlier decision in Castaneda v. Partida (1977) 430 U.S. 482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 498, in which it defined a cognizable group as "one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied."
In 1994, the Supreme Court arrived at the same conclusion with regard to exclusion of women from jury panels. By the time that case, J.E.B. v. Alabama ex tel. T. B., supra, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89, reached it, the court had dealt with several racial exclusion cases and had fleshed out the Batson opinion somewhat. It said, "We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice." (Id. at p. 128, 106 S.Ct. 1712.) Applying this principle, and the "heightened scrutiny afforded distinctions based on gender" (id. at p. 135, 106 S.Ct. 1712), the court held that equal protection prohibited the exclusion of women from juries on the basis of their gender, that "gender, like race, is an unconstitutional proxy for juror competence and impartiality." (Id. at p. 129, 106 S.Ct. 1712.)
But before those two cases, the Supreme Court decided Taylor v. Louisiana (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, in which it did not base its decision on the Equal Protection Clause at all, but instead held that the Sixth Amendment's guarantee of a jury venire representative of the community prohibited exclusion of women from such venires based upon their gender. Taylor was the culmination of the line of decisions upon which the California Supreme Court based its decision in People v. Wheeler. And it is this guarantee, rooted in the Sixth Amendment to the United States Constitution and article I, section 16 of the California Constitution, upon which we base our decision in this case.3
Billy J. Taylor was convicted under a Louisiana system of jury selection which provided that no woman would be called for jury service unless she had first submitted a written declaration of her desire to serve. It was stipulated that under that system, women made up fewer than 10 percent of the jury venires in the parish at issue, although they represented 53 percent of its population. Taylor's jury venire of 175 included no women.
The Supreme Court held, "The unmistakable import of this Court's opinions ... is that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial" (Taylor v. Louisiana, supra, 419 U.S. at p. 528, 95 S.Ct. 692), and that the systematic exclusion of women from the jury venire violated that right. It said: ...
To continue reading
Request your trial