People v. Johnson, No. S097600.

• Court: United States State Supreme Court (California)
• Writing for the Court: CHIN, J.
• Citation: 1 Cal.Rptr.3d 1,71 P.3d 270,30 Cal.4th 1302
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jay Shawn JOHNSON, Defendant and Appellant.
• Decision Date: 30 June 2003
• Docket Number: No. S097600.

1 Cal.Rptr.3d 1
30 Cal.4th 1302
71 P.3d 270

The PEOPLE, Plaintiff and Respondent,
v.
Jay Shawn JOHNSON, Defendant and Appellant

No. S097600.

Supreme Court of California.

June 30, 2003.

Certiorari Granted in Part December 1, 2003.

Case Dismissed May 3, 2004.

1 Cal.Rptr.3d 3

Stephen B. Bedrick, under appointment by the Supreme Court, Oakland, for Defendant and Appellant

Bradley A. Bristow, Sacramento, for California Public Defenders Association as Amicus Curiae on behalf of Defendant and Appellant.

Lynne S. Coffin, State Public Defender, Raoul D. Schonemann, Deputy State Public Defender; and Alan L. Schlosser, for Office of the State Public Defender and American Civil Liberties Union of Northern California as Amici Curiae on behalf of Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Martin S. Kaye, Richard Rochman, Ronald S. Matthias, Catherine A. McBrien, Laurence K. Sullivan and Seth K. Schalit, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Granted in Part December 1, 2003. See 124 S.Ct. 817.

Case Dismissed May 3, 2004. See 124 S.Ct. 1833.

1 Cal.Rptr.3d 2

CHIN, J

During jury selection, each party is entitled to a limited number of peremptory challenges. (Code Civ. Proa, § 231.) However, exercising peremptory challenges to remove prospective jurors solely because of group bias, for example, on racial grounds, violates both the California Constitution {People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Wheeler)) and the United States Constitution (Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (Batson).) Both Wheeler and, later, Batson established procedures for courts to follow when one party objects to the other party's peremptory challenges. Defendant contends that California's procedures violate Batson in two respects.

First, although both Wheeler and Batson require the objector to establish a prima facie case of discriminatory use of peremptory challenges before the other party must explain its challenges, Wheeler used two terms—"strong likelihood" and "reasonable inference"—to describe the necessary showing of group bias; Batson used the single term, "an inference of discriminatory purpose." (Batson, supra, 476 U.S. at p. 94, 106 S.Ct. 1712; Wheeler, supra, 22 Cal.3d at pp. 280-281, 148 Cal.Rptr. 890, 583 P.2d 748.) Defendant argues that the "strong likelihood" standard states a different, and higher, requirement for establishing a prima facie case than Batson permits.

Second, we have observed that comparing, for the first time on appeal, the answers of excused jurors with those of jurors not excused to determine whether the trial court erred in denying an objection to the use of peremptory challenges is unreliable and fails to give due deference to the trial court's ruling. (E.g., People v. Box (2000) 23 Cal.4th 1153, 1190, 99 Cal. Rptr.2d 69, 5 P.3d 130; People v. Montiel (1993) 5 Cal.4th 877, 909, 21 Cal.Rptr.2d 705, 855 P.2d 1277; People v. Johnson (1989) 47 Cal.3d 1194, 1220-1222, 255 Cal. Rptr. 569, 767 P.2d 1047.) Defendant contends that this rule against "comparative juror analysis" violates Batson.

We conclude that Wheeler's terms, a "strong likelihood" and a "reasonable inference," refer to the same test, and this test is consistent with Batson. Under both Wheeler and Batson, to state a prima

1 Cal.Rptr.3d 4

facie case, the objector must show that it is more likely than not the other party's peremptory challenges, if unexplained, were based on impermissible group bias. We also conclude that Batson does not require state reviewing courts to engage in comparative juror analysis for the first time on appeal. Finally, applying California's procedures, which satisfy Batson, to this case, we uphold the trial court's finding that defendant failed to establish a prima facie case that the prosecutor used his peremptory challenges improperly

Accordingly, we reverse the judgment of the Court of Appeal, which reached contrary conclusions.

I. FACTS AND PROCEDURAL HISTORY

A jury found defendant guilty of the second degree murder of the 19-month-old daughter of his girlfriend and of assault resulting in the death of a child under the age of eight. (Pen.Code, §§ 187, 273ab.) The issues before us solely involve jury selection, so we focus on that process.

The district attorney exercised 12 peremptory challenges. He used three of them to challenge all three African-American prospective jurors on the jury panel— C.T., S.E., and R.L. After the second of these challenges, defendant made a "Wheeler motion." (Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.) He stated that his motion "[m]ore specifically ... concerns [S.E.], the last individual who was eliminated by the People." He argued the prosecutor had no apparent reason to challenge this prospective juror "other than [her] racial identity." He made no argument regarding C.T. The court responded that "based on the record that's been made, [it] would find that there's not been shown a strong likelihood that the exercise of the peremptory challenges were based upon a group rather than an individual basis. The Court has to start from the position of a premise that the exercises of the peremptory challenges were based on constitutional grounds." The court also told the district attorney, however, that "we are very close."

After the third of these challenges, defendant renewed his Wheeler motion. Focusing this time on the most recent challenge, he based his motion on the circumstance that the district attorney had removed all of the African-American prospective jurors. The court denied the motion in a detailed ruling. Regarding the most recent challenge, the court stated that it had had "concerns with regard to her qualifications in this matter based upon her answers on the questionnaire; specifically, the Court had noted that she had a sister who had had drug charges, although her answers in follow-up verbally were such that the Court would not have found that the issues were such to lead to a challenge for cause. May be sufficient to justify a peremptory challenge by the People. [¶] Also, with regard to her answers generally on the questionnaire itself, there was an indication that she had difficulty understanding some of the issues, and specifically, her last response which was somewhat rambling on the questionnaire indicated that she herself felt that she had difficulty understanding things. Again, her verbal responses here in court were such that I would not have granted a challenge for cause on that basis, but the Court felt that the answers on the questionnaire were sufficient that they certainly would have justified a peremptory challenge by either side, frankly, based upon the concerns about her ability to understand the proceedings."

The court noted the rest of the district attorney's challenges were against "all other types of groups, including white women

1 Cal.Rptr.3d 5

and white men as well." Regarding S.E., the court stated that it had been concerned about her, "including the answer on question thirty that she gave verbally here in court that she had not included in her questionnaire; a parent had a robbery or arrest, even though that was a number of years ago, thirty years ago. Her answers on the record were not as such that I would have granted a challenge for cause. Certainly, they could justify a challenge by the People. [¶] She expressed on the record that she didn't know if she could be fair. Her verbal follow-up responses were not such that I would have granted a challenge for cause. And also based upon the answers with regard to question sixty-three ... her emotions and feelings, again, her answers were such that they may have caused concern for either side. Even though the answers tend to lean in the favor of the prosecution in the case, neither side would want a juror deciding a case based upon emotions, rather than the facts and the evidence." "In summary," the court said, "with regard to the jurors, while the Court would not grant the challenges for cause, there were answers ... at least on the questionnaires themselves such that the Court felt that there was sufficient basis for the peremptory challenge. [¶] Even with the addition of [the most recent challenge], the Court will not find a prima facie case."

The Court of Appeal reversed the judgment. It found that the "strong likelihood" standard the trial court applied violated Batson, supra, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Based primarily on its own comparison of answers the challenged jurors gave with answers of nonchallenged jurors, the court concluded that "a prima facie case of group bias was established and that the judgment must therefore be reversed." Justice Haerle dissented on all points.

We granted the Attorney General's petition for review.

II. DISCUSSION

A. Background

Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution. (Batson, supra, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.) Because Wheeler predated Batson, the Wheeler court obviously did not have the benefit of Batson in establishing the procedures to follow in California. Defendant argues that California's procedures violate Batson in two respects: (1) Wheeler's "strong likelihood" standard, or at least the way it was understood and applied in later cases, is a higher standard than Batson permits; and (2) California law impermissibly restricts comparative juror analysis. We discuss these contentions in order below, then review the trial court's rulings. But first, to fully understand these issues, it is necessary to review Wheeler and Bat...