People v. Granillo

• Decision Date: 18 December 1987
• Docket Number: No. F006772,F006772
• Citation: 242 Cal.Rptr. 639,197 Cal.App.3d 110
• Court: California Court of Appeals Court of Appeals
• Parties: , 56 USLW 2391 The PEOPLE, Plaintiff and Respondent, v. Daniel GRANILLO et al., Defendants and Appellants.

Page 639

242 Cal.Rptr. 639

197 Cal.App.3d 110, 56 USLW 2391

The PEOPLE, Plaintiff and Respondent, v. Daniel GRANILLO et al., Defendants and Appellants.

No. F006772.

Court of Appeal, Fifth District, California.

Dec. 18, 1987.

Review Denied March 31, 1988.

Frank O. Bell, State Public Defender, Joan W. Cavanagh, Chief Asst., Sacramento, Cynthia A. Thomas, Atty., Central Cal. Appellate Project, Sacramento, Richard Power, Pleasanton, Eric L. Henrikson, Oakland, for defendants and appellants

John K. Van de Kamp, Atty. Gen., David A. Rhodes, Deputy, Sacramento, for plaintiff and respondent.

OPINION

WOOLPERT, Acting Presiding Justice.

By information filed in Tulare County Superior Court in February of 1985, defendants Gary Granillo, Frank Ruiz, and Daniel Granillo were charged with violation of PENAL CODE SECTION 187¹ (murder). Special allegations further alleged Gary Granillo and Ruiz used a deadly weapon within the meaning of section 12022, subdivision (b) (a knife). At arraignment, all defendants pled not guilty. The special allegations were also denied.

Defendants' motion to set aside the information because of a denial of speedy trial was denied, as was a motion for separate trials. Defendants' motion to dismiss the unsworn jury and bring in a new jury venire based upon under-representation of individuals with Hispanic surnames was denied. A motion by all defendants to dismiss the unsworn petit jury and start jury selection over based upon the prosecution's invalid use of peremptory challenges to preclude Hispanics from being on the jury was also denied.

All defendants were found guilty of first degree murder. The weapons use allegations were also found to be true. Gary Granillo was sentenced to 25 years to life for the murder, plus a consecutive one-year sentence for the weapon use; Frank Ruiz was likewise sentenced to 25 years to life, plus a consecutive one-year sentence for the weapon use; Daniel Granillo was sentenced to 25 years to life. Credits were awarded. All defendants timely appeal.

Because a single issue unrelated to the particular facts of the case is determinative, we summarize the facts accordingly. The three defendants were visiting a residence when a dispute arose among a number of people, leading to the death of one of the men present. Most of the participants and witnesses are Hispanic. During jury selection it appeared to the defendants that the prosecutor was purposely using peremptory challenges to excuse Hispanic jurors. The excuses did not appear to be related to any specific bias of the jurors.

After the question of proper use of peremptory challenges was discussed at length, the court found all but one of the prosecutor's challenges had a proper basis. However, the court did not feel the one improper excuse would affect the representative cross-section of the panel. We will find the court misconstrued People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748. Therefore we are required to reverse the judgment. As a result, discussion of the other issues raised by each defendant is unnecessary.

In Wheeler, the court held the right to trial by a jury drawn from a representative cross-section of the community is guaranteed by the California Constitution (Art. I, § 16). (People v. Wheeler, supra, 22 Cal.3d at p. 272, 148 Cal.Rptr. 890, 583 P.2d 748.)

The court described the three stages at which problems might arise in jury selection and adversely affect the representative cross-sectional guarantee. The third stage involves exercise of each party's statutory challenge (id. at p. 273, 148 Cal.Rptr. 890, 583 P.2d 748; Pen.Code, §§ 1055-1089), specifically the exercise of peremptory challenges. (Pen.Code, §§ 1067, 1069.) Article I, section 16 of the California Constitution was held to be violated in Wheeler by the prosecutor's use of peremptory challenges to remove prospective jurors on the sole ground of group bias. (Id. at pp. 276-277, 148 Cal.Rptr. 890, 583 P.2d 748.) The challenge in the present case is of the same kind.

The Wheeler court set forth a process by which courts might perform their responsibility of making certain "that this guarantee not be reduced to a hollow form of words...." (Ibid.)

Peremptory challenges are presumed to be constitutionally valid. (Id. at pp. 278, 282, 148 Cal.Rptr. 890, 583 P.2d 748.) The Wheeler challenge involves the shifting of this presumption. (Id. at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748.) The court in Wheeler developed a two-part test to use when group bias is alleged as the only basis for a peremptory challenge.

Part I (the prima facie showing requirement) was expressed as follows:

"If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court." (Id. at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)

Part I also had three subparts:

"First, as in the case at bar, 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." (Ibid.)

The court then discussed a number of ways a party might attempt to make such a showing. (Id. at pp. 280-281, 148 Cal.Rptr. 890, 583 P.2d 748.)

After the above evidence has been presented in Part I, the court makes its ruling:

"... the court must determine whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone." (Id. at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.)

Part II is reached only if the requirement in Part I, a prima facie showing, has been satisfied by the party raising the issue. (Id. at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.) In Part II (the justification requirement), "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." (Id. at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748, fns. omitted.)

The showing necessary to demonstrate justification does not rise to the level of a challenge for cause (id. at pp. 281-282, 148 Cal.Rptr. 890, 583 P.2d 748):

"[T]o sustain his burden of justification, the allegedly offending party must satisfy the court that he exercised such peremptories 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." (Id. at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748.)

The justifying party may satisfy this burden by referring to the totality of the circumstances. (Ibid.) The court defined specific bias as "a bias concerning the particular case on trial or the parties or witnesses thereto...." (Id. at pp. 274, 276, 148 Cal.Rptr. 890, 583 P.2d 748.)

Part II concludes with a ruling on the adequacy of the justification:

"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." (Id. at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748, emphasis added.)

When the presumption of validity is rebutted (adequate justification not shown):

"[T]he court must then conclude that the jury as constituted fails to comply with the representative cross-section requirement, and it must dismiss the jurors thus far selected. So too it must quash any remaining venire, since the complaining party is entitled to a random draw from an entire venire--not one that has been partially or totally stripped of members of a cognizable group by the improper use of peremptory challenges. Upon such dismissal a different venire shall be drawn and the jury selection process may begin anew." (Id. at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748, emphasis added.)

Failure to "begin anew" has been described as follows:

"The error is prejudicial per se: 'The right to a fair and impartial jury is one of the most sacred and important of the guaranties of the constitution. Where it has been infringed, no inquiry as to the sufficiency of the evidence to show guilt is indulged and a conviction by a jury so selected must be set aside. [Citations.]" (Id. at p. 283, 148 Cal.Rptr. 890, 583 P.2d 748, emphasis added.)

In the present case, a timely Wheeler motion was made by all defendants after the jurors, including two alternates, were selected, but before they were sworn. (People v. Ortega (1984) 156 Cal.App.3d 63, 69-70, 202 Cal.Rptr. 657.) Defendants alleged the prosecution improperly removed Hispanics from the jury through use of peremptory challenges based upon group bias alone. Hispanics are a cognizable group for purposes of measuring the fair cross-section requirement. (People v. Trevino (1985) 39 Cal.3d 667, 683, 217 Cal.Rptr. 652, 704 P.2d 719; see also People v. Harris (1984) 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433.)

The defense presented the following evidence on Part I of the Wheeler test: 23 peremptory challenges had been used by the prosecution, of those 5 were used to challenge Hispanics. This was particularly significant to the defense in light of the number of Spanish-surname individuals eliminated through actions of the jury commissioner by challenges for cause and hardship. Although one individual with a Spanish surname was left on the jury, and one remained as an alternate juror, the defense argued this amounted to nothing more than a token act by the prosecutor.

The potential jurors who were eliminated were then named: Zamora; Gonzales; Casarez; Eaton; and Moreno. The defense argued that from all the circumstances, these individuals were challenged because of their Hispanic group association. These jurors were described as ...