People v. Davis

*1202 JOHNSON, J,

Concurring and Dissenting.—I concur in the judgment in all respects and in the disposition of all issues in this appeal, save one. That issue is “whether a prima facie showing of discriminatory exclusion is rebutted where the reasons articulated, which adequately demonstrate specific bias, are predicated on mistaken, but good faith, assumptions about that prospective juror’s conduct, comments or answers to questions.” (Majority opn. p. 1177 ante.) The majority opinion answers this in the affirmative. I respectfully disagree. However, I also am convinced appellant failed to establish a prima facie showing of discriminatory exclusion. Consequently, I still support affirmance of the conviction.

In seeking to probe the prosecutor’s motives for exercising peremptory challenges the courts are embarked on a difficult enough enterprise. The trial court must determine the prosecutor’s state of mind at the time he or she decided to challenge a given juror. Did the prosecutor exclude a juror because the juror was of a minority race or did he do so because of other, legitimate reasons? The appellate court, in turn, must review the prosecutor’s explanation and the trial court’s ruling on this question from a cold, hard record. We should not compound our problem by having to speculate about the prosecutor’s state of mind at the time he or she was justifying an earlier state of mind.

When the record reflects a prosecutor gave a clearly erroneous justification it is seldom possible for us to ascertain from that record—that is, from the words the prosecutor used—whether he or she erred in good faith or not. Only in the most extreme and unusual case will there be enough in the record to allow an appellate court to fix a bad faith label on a prosecutor. In essence, to do so means calling a particular prosecutor a deliberate liar. Yet consider what happens if we automatically assume, as the majority opinion appears to do, that the prosecutor acted in good faith. We essentially sanction any explanation no matter how careless the prosecutor may be with the truth or how unbiased and otherwise qualified the excluded minority juror or jurors may have been.

This is not to say convictions should be reversed every time a prosecutor makes a mistake in explaining why he or she challenged a given juror. But here there is nothing substantial remaining in the explanation itself which would support a contention this prosecutor challenged this juror for permissible, nondiscriminatory reasons. If the defense had established a prima facie case of discriminatory motive I would hold this erroneous explanation insufficient to justify the peremptory challenge of this juror. I would remand for a posttrial hearing at which the prosecutor was given the opportunity to demonstrate through accurate information about the actual juror involved that he had nondiscriminatory reasons for excusing that juror. If the prose *1203 cutor failed to do so, the conviction would be vacated and the case remanded for retrial before a jury untainted by a constitutionally infirm pattern of jury selection.

This procedure rather than a rule excusing “good faith error” is the one best calculated to insure prosecutors “consult their notes” and are thorough in reconstructing their own motives and thought processes. Care instead of carelessness on the part of prosecutors, in turn, should give trial judges a sounder basis for deciding these motions. Thus, this approach rather than the position urged in the majority opinion seems best calculated to advance the policies promoted by Wheeler and its progeny.

In the instant case, however, the prosecutor’s faulty explanation does not become relevant. The evidence independent of the explanation about this particular juror showed this prosecutor was not striking minority jurors for racially motivated reasons. The prima facie case of discriminatory exclusion was lacking. Consequently, I support the judgment of affirmance despite my reservations about the “good faith error” rule announced by my colleagues.

Appellant’s petition for review by the Supreme Court was denied June 18, 1987. Mosk, J., was of the opinion that the petition should be granted.