People v. Fuller

ELKINGTON, J.

I respectfully dissent.

Relying on People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ], People v. Johnson (1978) 22 Cal.3d 296 [ 148 Cal.Rptr. 915 , 583 P.2d 774 ], and People v. Allen (1979) 23 Cal.3d 286 [ 152 Cal.Rptr. 454 , 590 P.2d 30 ], my esteemed colleagues have, I believe, given those authorities a meaning clearly unintended by their authors. Further, as foreseen by the Chief Justice in her qualified concurrence in Wheeler (22 Cal.3d p. 287), in their attempt to stop a vicious unconstitutional practice they have overreacted, and abridged, perhaps destroyed, the peremptory jury challenge which has come to us “from the common law with the trial by jury itself, and has always been held essential to the fairness of trial by jury.” (Lewis v. United States (1892) 146 U.S. 370, 376 [ 36 L.Ed. 1011, 1014 , 13 S.Ct. 136 ].)

*425 “Although ‘[t]here is nothing in the Constitution of the United States which requires the Congress [or the States] to grant peremptory challenges,’ . . . nonetheless the challenge is ‘one of the most important of the rights secured to the accused,’ . . . The denial or impairment of the right is reversible error without a showing of prejudice, .... ‘For it is, as Blackstone says, an arbitrary and capricious right, and it must be exercised with full freedom, or it fails of its full purpose.’ ...[!] The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise. . . . [T]he view in this country has been that the system should guarantee ‘not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.' ” (Swain v. Alabama (1965) 380 U.S. 202, 219-220 [ 13 L.Ed.2d 759, 772 , 85 S.Ct. 824 ]; italics added.)

Wheeler, Johnson, and Allen , as pointed out by my colleagues, concerned conflicts between the defendants’ “right to trial by an impartial jury guaranteed by the California Constitution,” and the lesser but nevertheless “important right” long assured to both parties of a criminal action. By Wheeler, Johnson, and Allen , the state’s high court resolved the issue by ‘ ‘evenly holding the scales. ’ ’

Facing the problem in Wheeler (which must reasonably be deemed the leading case), and stating—“we do not underestimate its difficulty”—the high court announced the apposite rules, upon a charge by a party that his opponent is “using his peremptory challenges to strike jurors on the ground of group bias alone. ’ ’

The rules, as pertinent here, follow:

(1) The person so charging must show, “from all the circumstances of the case ... a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.” (22 Cal.3d at p. 280.)

(2) “Upon 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. ...”

(3) “If the court finds that a prima facie case has been made, the burden shifts to the other party to show if he can that the peremptory *426 challenges in question were not predicated on group bias alone.” (22 Cal.3datp. 281.)

(4) “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.” (22 Cal.3d at p. 282.)

I believe my colleagues have erred in respect of the intent of the above rule numbered (2).

Following the pertinent evidentiary showing and argument of defendant Fuller, the trial court ruled as follows: “The Court: The matter is submitted. [¶] Pursuant to Wheeler, it is now the court’s responsibility to determine whether a reasonable inference arises that peremptory challenges are being used on the grounds 'of group bias alone, and. it is the court’s determination that such a reasonable inference has not arisen in this proceeding, [¶] A number of different inferences can be drawn, but I don’t believe a reasonable inference has arisen that peremptory challenges are being used on the grounds of group bias alone. [¶] Accordingly, the motion for mistrial is denied.” (Italics added.)

My colleagues say, as I read their opinion, that the trial court’s (above unemphasized) clause, “A number of different inferences can be drawn,” constitutes the finding of a reasonable inference of “group bias alone” which, although the court chose not to draw it, under Wheeler shifted to the prosecution the burden of proving the absence of “group bias alone.”

Thus, a novel procedure is about to be grafted upon our criminal law.

It does violence to the long existent rule of criminal and civil law that: “When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Grainger v. Antoyan (1957) 48 Cal.2d 805, 807 [ 313 P.2d 848 ].)

No complaint is observed that the trial court’s determination was not supported by substantial evidence. Indeed defendant Fuller concedes that “the district attorney may have excused the three Blacks for constitutionally permissible grounds.”

*427 There is a presumption that “a party exercising a peremptory challenge is doing so on a constitutionally permissible ground.” {Wheeler, 22 Cal.3d p. 278.)

Moreover, we note that the trial court found only that “different inferences [not reasonable inferences] can be drawn.” By no test of logic may such inferences, not found reasonable, apply under our law.

But more important, such a conclusion is squarely contrary to Wheeler’s command. On this subject that court said: “Upon presentation of [the defendant’s] evidence—in the absence, of course, of the jury—the court must determine whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone.” (22 Cal.3d p. 281.) The language manifestly requires the trial court’s, not our, determination of the applicable reasonable inference’s existence.

Then, as a sort of emphasis to the point, the Wheeler court declared: “We recognize that such a ruling ‘requires trial judges to make difficult and often close judgments. They are in a good position to make such determinations, however, on the basis of their knowledge of local conditions and of local prosecutors.’ . . . They are also well situated to bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience. We are confident of their ability to distinguish a true case of group discrimination by peremptory challenges from a spurious claim interposed simply for purposes of harassment or delay.” (22 Cal.3d p. 281.)

I am accordingly of the opinion that it was not the trial court, but instead this court, which has misapplied Wheeler and its companion cases.

Although, as pointed out, no contention is made by Fuller that the trial court’s criticized ruling was without substantial evidentiary support, it seems proper to briefly analyze the evidence vis-a-vis that of Wheeler, Johnson, and Allen .

In Wheeler the defendant was black and his claimed victim, white. The prosecutor’s examination of some blacks was perfunctory and as to the others, no questions were asked at all; it was apparent that he proposed at the start to challenge all black members of the venire. Johnson also concerned a black defendant and white victim; and the prosecutor on the record stated: “As long as I had peremptory challenges I intended to *428 excuse black jurors in this case.” In Allen also, the defendant was black and his alleged victim white. The white veniremen were questioned at length, and the blacks (14 in all) were simply asked “if their answers would differ, ’ ’ and then excused.

In the case at bench, defendant Fuller, the alleged victim, and the prosecution’s percipient witnesses were all black. The obvious purpose of such a claimed prosecutorial group bias did not exist. My colleagues find it “not essential that the objecting party prove desultory questioning,” but nevertheless state that in “our view the questioning [of blacks] was desultory.” I disagree; my reading of the record indicates the examination of the three blacks who were peremptorily excused (one man and two women) was at least as extensive and probing, as that of their white counterparts.

It is significant, and appropriate, to here point out that Wheeler expressly recognized and emphasized two relevant indicia of group bias: (1) the excessive peremptory challenges of members of the same race of the defendant but a different race from the complaining witness.; and (2) the “desultory questioning” indicating no intent to impanel members of the minority race. Neither, it is respectfiilly opined, was present here.

There was patently substantial evidence, and reasonable inferences therefrom, supportive of the trial court’s questioned ruling. Fuller agrees, by his above-noted appellate concession that “the district attorney may have excused the three Blacks for constitutionally permissible grounds.” This can mean only that such a “reasonable inference” might have been drawn by the trial court.

Should this court’s opinion become the law of the state, a sort of inverse discrimination would, I think, result. For it would be a rare prosecutor who would jeopardize a verdict by exercising peremptory challenges against minority persons, lest as here á reviewing court, overruling the trial court, shall find an inference of group bias alone.

I would affirm the judgment.

A petition for a rehearing was denied November 5, 1982, and the opinion was modified to read as printed above. Elkington, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied December 1, 1982. Newman, J., and Broussard, J., did not participate therein.