People v. Johnson

CourtCalifornia Court of Appeals
Citation105 Cal.Rptr.2d 727
Decision Date05 April 2001
Parties(Cal.App. 1 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. JAY SHAWN JOHNSON, Defendant and Appellant. A085450 Filed

105 Cal.Rptr.2d 727 (Cal.App. 1 Dist. 2001)
THE PEOPLE, Plaintiff and Respondent,
JAY SHAWN JOHNSON, Defendant and Appellant.
Filed 4/5/01

(Contra Costa County Super. Ct. No. 96-0691-4)

Trial Court: Contra Costa County Superior Court, Trial Judge: Honorable Patricia Sepulveda

Attorneys for Appellant: Stephen B. Bedrick 1970 Broadway, Ste. 1200 Oakland, CA 94612

Attorneys for Respondent: Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Martin S. Kaye, Deputy Attorney General, Richard Rochman, Deputy Attorney General, 455 Golden Gate Ave., Ste. 11000 San Francisco, CA 94102



Jay Shawn Johnson was convicted of second degree murder and assault resulting in the death of a child under the age of eight (Pen. Code, 187, 273ab) upon retrial after a partial reversal on his first appeal. The murder victim was Janika Price, the 19-month-old daughter of Jennifer Shelton with whom appellant was romantically involved. In the first appeal, we affirmed appellant's conviction of corporal injury on a cohabitant, Jennifer Shelton (Pen. Code, 273.5), and reversed his convictions of second degree murder and assault on a child leading to death for error in jury instructions on the cause of death. Appellant was retried in December 1998, and was sentenced to 15 years to life imprisonment on the murder conviction to run concurrently with the three-year term for corporal injury on a cohabitant.

Appellant raises a number of evidentiary issues, as well as a claim that the trial court erred when it failed to find a prima facie case of a Wheeler (People v. Wheeler (1978) 22 Cal.3d 258) violation. We conclude a prima facie case of group bias was established and that the judgment must therefore be reversed. In the unpublished portion of this opinion we set forth factual details unrelated to the Wheeler issue that bear upon evidentiary questions that are addressed to provide guidance to the trial court upon retrial.



Appellant, who is African-American, contends the prosecutor improperly used peremptory challenges to excuse three African-American prospective jurors because of their race, which completely eliminated African-Americans from the jury. Appellant made two motions for a mistrial under People v. Wheeler, supra, 22 Cal.3d 258 for racial discrimination in jury selection. Both were denied for failure to present a prima facie case.

The first Wheeler motion was directed to the prosecution's challenges to "three African-American women," namely Clodette T., Sara E., and Bernice L.1 Defense counsel argued there were no valid race-neutral justifications for these challenges. Finding no prima facie case had been established, the court denied the motion, adding: "[h]owever, I would indicate that we are very close, Mr. Brown [prosecutor]."

The second Wheeler motion was made the next day, in response to the prosecutor's peremptory challenge to another African-American woman, Ruby L. Defense counsel maintained that the prosecutor's peremptory challenge of every African-American seated reflected a systematic attempt to exclude African-Americans from the jury panel. In denying the motion, the court noted that it found Ms. L.'s answers sufficient to justify a peremptory challenge in that her answers to the questionnaire raised concerns about her ability to understand the proceedings. As to Sara E., the court noted that she had omitted in her questionnaire the information about a parent's arrest for robbery some 30 years earlier. The court also recalled that Ms. E. had indicated concern about whether she could be fair, even though her "answers tend to lean in favor of the prosecution." The court made no comment about the challenge of Clodette T. In denying the motion the court stated: "Even with the addition of Ms. L., the Court will not find a prima facie case. The People are [not] exercising challenges based on group bias, rather than individual bias." The court then offered the prosecutor the opportunity to make a further record, which he declined.

"The use of peremptory challenges to eliminate prospective jurors because of their race is prohibited by the federal Constitution (Powers v. Ohio (1991) 499 U.S. 400, 409; Batson v. Kentucky (1986) 476 U.S. 79, 89) and by the California Constitution (People v. Wheeler (1978) 22 Cal.3d 258, 276-277)." (People v. Mayfield (1997) 14 Cal.4th 668, 722-723.)


At the time the parties briefed this case, there was a dispute about whether Wheeler required a greater evidentiary showing for a prima facie case than was required under Batson.2 Wheeler states: "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. 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." (Wheeler, at p. 280, italics added.) In the next paragraph of the Wheeler opinion the court describes the types of evidence a party may use to show his opponent is challenging persons from the venire because of their group association. The opinion then goes on to state that "[u]pon presentation of this and similar evidence . . . 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, italics added.) As will be seen, the separate references to "strong likelihood" and "reasonable inference" has created some confusion as to which of the two standards applies, as most courts that have addressed the question have concluded that a "strong likelihood" requires a stronger showing than a mere inference.

There is, however, no such confusion as to which standard applies under Batson, the federal counterpart to Wheeler. To establish a prima face case of discrimination under the United States Constitution, Batson states that a defendant must "raise an inference that the prosecutor used that practice [peremptory challenges] to exclude the veniremen from the petit jury on account of their race." (Batson v. Kentucky, supra, 476 U.S. at p. 96, italics added.) The difference in language between Wheeler ("strong likelihood") and Batson ("raise an inference") led to a dispute about whether Wheeler established a stricter test than Batson. In People v. Fuller (1982) 136 Cal.App.3d 403, 423, which was decided prior to Batson, the court acknowledged that the Wheeler opinion uses both phrases, but concluded "that a fair reading of Wheeler requires only that the court find a reasonable inference of group bias . . . ." (Id. at p. 423.) The Fuller court was "unwilling to believe that our high court intended to create different options for trial judges within one page of each other in so carefully crafted an opinion as the Wheeler opinion." (Id. fn. 25.)

The Fuller view of Wheeler was repudiated in People v. Bernard (1994) 27 Cal.App.4th 458 which rejected the view "that a fair reading of Wheeler requires only that the court find a reasonable inference of group bias." (People v. Fuller, supra, 136 Cal.App.3d at p. 423) According to the Bernard court, "a reduction of the prima facie standard to a 'reasonable inference' test would reduce the trial court's discretion and judgment at a time when it is uniquely situated to observe the nature and extent of voir dire as well as the attitude and awareness of the challenged prospective juror." (27 Cal.App.4th at p. 465) The conclusion of the Bernard court that a "strong likelihood" requires a stronger showing than a "reasonable inference," and that such a stronger showing must be made to establish a prima facie case of violation of the Wheeler rule, has been followed by other appellate courts in this state. (See, e.g., People v. Buckley (1997) 53 Cal.App.4th 658, 665-666; People v. Walker (1998) 64 Cal.App.4th 1062, 1067.)

Recently, in Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190, the Ninth Circuit observed that since the decision in Bernard, "the California state courts have applied a lower standard of scrutiny to peremptory strikes than the federal Constitution permits. [] The California Supreme Court now routinely insists, despite Batson, that a defendant must show 'a strong likelihood' of racial bias. Its consistent practice is to cite Batson and Wheeler together as controlling law but to quote the 'strong likelihood' language from Wheeler rather than the 'raise an inference' language from Batson. [Citations.] Batson is, of course, the law of the land. California law may give greater protection to criminal defendants than is required by the federal Constitution, but it cannot give less. Yet this is precisely what the California courts now do when they follow the Wheeler 'strong likelihood' test in determining whether a prima facie case has been established. [] In our view, the Wheeler 'strong likelihood' test for a successful prima facie showing of bias is impermissibly stringent in comparison to the more generous Batson 'inference' test." (Id. at pp. 1196-1197) Accordingly, the Wade v. Terhune court concluded that "[w]here the California courts follow the 'strong likelihood' language of Wheeler without any indication that they are actually applying a 'reasonable inference' test consonant with Batson, they apply an incorrect legal standard." (Id. at p. 1197.)

Wade v. Terhune also opines "that the Wheeler court...

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  • People v. Johnson, A085450.
    • United States
    • California Court of Appeals
    • April 5, 2001
    ... 105 Cal.Rptr.2d 727 88 Cal.App.4th 318 The PEOPLE, Plaintiff and Respondent, v. Jay Shawn JOHNSON, Defendant and Appellant. No. A085450. Court of Appeal, First District, Division 2. April 5, 2001. Certified for Partial Publication.* Review Granted July 18, 2001. [105 Cal.Rptr.2d 728] Steph......

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