People v. Johnson

KENNARD, J., Dissenting.

A peremptory challenge is presumed to have been based on valid grounds. If a defendant seeks to rebut this presumption, claiming that a prosecutor is improperly using peremptory challenges to remove prospective jurors solely because of group bias, the defendant must first establish a prima facie showing of discriminatory use. 1 (Batson v. Kentucky (1986) 476 U.S. 79 [ 106 S.Ct. 1712 , 90 L.Ed.2d 69 ] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler).) If the trial court finds that a prima facie case has been established, it will ask the prosecutor to explain the basis for the peremptory challenges. If, after hearing the explanations, “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 . . . and it must dismiss the jurors thus far selected.” (Wheeler, supra, at p. 282 .)

This case presents two issues concerning motions based on Wheeler and Batson objecting to prosecutorial peremptory challenges: (1) Should this court use comparative juror analysis—comparing the challenged jurors with others who were not challenged—in reviewing the trial court decision that defendant had failed to establish a prima facie showing that the prosecutor’s challenges had a discriminatory purpose? (2) What must a defendant prove to make that initial prima facie showing of discriminatory purpose? On the first question, the majority relies on People v. Johnson (1989) 47 Cal.3d 1194 [ 255 Cal.Rptr. 569 , 767 P.2d 1047 ], to hold that an appellate court ordinarily should not use comparative juror analysis in reviewing a trial court’s denial of a Wheeler-Batson motion if the defendant has not raised that analysis in the trial court. I agree with that result, but would reach it by a different route. On the second question, the majority upholds the trial court’s ruling finding no prima facie case on the ground that defendant failed to show that it is more likely than not that the peremptory challenges had a discriminatory purpose. I disagree with this standard, and would hold that a defendant need only prove facts that, if unexplained, permit a reasonable inference of discriminatory purpose. Even without using comparative juror analysis, the record here shows that defendant met that standard.

*1330 I

Comparative juror analysis involves comparing the challenged jurors to jurors who were not challenged to determine whether a proffered reason for a challenge is genuine or pretextual. For example, if the prosecution says it challenged juror A for not having a high school education, it would be of interest whether the prosecution challenged jurors B and C who also lack that education. If the prosecutor did, that would suggest that the proffered ground for challenge was genuine; if not, it would suggest there was probably some other reason for the challenge to juror A. Here, the trial court found defendant had not established a prima facie showing that the prosecutor’s challenges had a discriminatory purpose because, in the court’s view, the record showed neutral reasons why the prosecutor might have challenged the jurors in question. The defense could have used comparative juror analysis to question those reasons, but it did not do so. By failing to use comparative juror analysis in the trial court, the defense not only deprived the prosecution of the opportunity to explain the pattern of its preemptive challenges to the trial court, but it also deprived the trial court of the opportunity to evaluate that explanation in the context of the voir dire the court observed.

It is well settled that ordinarily an appellate court will not consider a theory not raised at trial. (See generally 1 Appeals & Writs in Criminal Cases (Cont.Ed.Bar 2d ed. 2000) § 1.165, pp. 164.2-165, and cases there cited; Erwin et al., Cal.. Criminal Defense Practice (2002) § 101.35, pp. 108-112, and cases there cited.) “The general rule confining the parties on appeal to the theory advanced below is based on the rationale that the opposing party should not be required to defend for the first time on appeal against a new theory that ‘contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial.’ [Citation.]” (Ward v. Taggart (1959) 51 Cal.2d 736, 742 [ 336 P.2d 534 ].) There are many examples. (See, e.g., People v. Carrera (1989) 49 Cal.3d 291, 324 [ 261 Cal.Rptr. 348 , 777 P.2d 121 ] [appellant cannot raise new ground for claiming evidence was inadmissible]; People v. Raley (1992) 2 Cal.4th 870, 898 [ 8 Cal.Rptr.2d 678 , 830 P.2d 712 ] [constitutional contention cannot be raised on appeal when issue was argued only on statutory grounds in the trial court].) Because defendant here failed to use comparative jury analysis in the trial court, this rule precludes defendant from arguing that theory on appeal.

The majority reaches the same conclusion, but instead of basing that conclusion on well-settled principles' of appellate review, it relies on a *1331 special California rule barring appellate courts from undertaking comparative juror analysis. This rule derives from People v. Johnson, supra, 47 Cal.3d 1194 (Johnson). Although the recitation of facts in Johnson suggests that the defendant did not use a comparative juror analysis in arguing his Wheeler motion at trial, the reasoning of this court did not rest on that fact. Instead, the Johnson majority gave three reasons for eschewing use of comparative juror analysis: (1) that a trial judge could not reasonably be expected to make detailed comparisons of jurors midtrial; (2) that comparative juror analysis does not properly take into account the variety of factors and considerations that influence the decision whom to challenge; and (3) that a comparative juror analysis by an appellate court on a cold record is less reliable than the decision of the trial court, which can observe the jurors and appreciate the setting of the challenges. (Id. at pp. 1220-1221.)

Because those reasons apply whether or not the defendant argues comparative juror analysis in the trial court, the more reasonable reading of Johnson is that it barred the use of comparative juror analysis on appeal whether or not that approach was urged before the trial court. Later decisions of this court followed Johnson and without exception rejected comparative juror analysis. None says that the reason for not engaging in comparative juror analysis was that the defendant did not raise the matter at trial; many do not even indicate whether the defendant urged comparative juror analysis in support of the motion in the trial court. (See, e.g., People v. Catlin (2001) 26 Cal.4th 81, 119, fn. 5 [ 109 Cal.Rptr.2d 31 , 26 P.3d 357 ]; People v. Ayala (2000) 24 Cal.4th 243, 270 [ 99 Cal.Rptr.2d 532 , 6 P.3d 193 ]; People v. Jones (1998) 17 Cal.4th 279, 295 [ 70 Cal.Rptr.2d 793 , 949 P.2d 890 ]; People v. Turner (1994) 8 Cal.4th 137, 164 [ 32 Cal.Rptr.2d 762 , 878 P.2d 521 ].) 2 In People v. Montiel (1993) 5 Cal.4th 877, 911 [ 21 Cal.Rptr.2d 705 , 855 P.2d 1277 ], this court refused to use comparative juror analysis on appeal, even though the prosecutor had used that analytic technique at trial to justify his peremptory challenges.

But a unique California rule barring comparative juror analysis on appeal, even if that technique were used in the trial court, would be constitutionally suspect under the recent United States Supreme Court decision in Miller-El *1332 v. Cockrell (2003) 537 U.S. 322 [ 123 S.Ct. 1029 , 154 L.Ed.2d 931 ] (Miller-El). 3 In Miller-El , the question before the Supreme Court was whether the defendant’s Batson claim was an appealable issue under 28 United States Code section 2253 (c)(2), which requires that the appellant demonstrate “a substantial showing of the denial of a constitutional right.” The majority used comparative juror analysis to conclude that the defendant should have been given a certificate of appeal. (Miller-El, supra, 537 U.S. at p. 342 [123 S.Ct. at pp. 1042-1043].) Justice Scalia, concurring, also applied comparative juror analysis. ( 537 U.S. at p. 352 [123 S.Ct. at pp. 1047-1048] (cone, opn. of Scalia, J.).) In dissenting, Justice Thomas disagreed with conclusions of the majority’s comparative juror analysis, but not with the appropriateness of the technique. ( 537 U.S. at p. 362 [ 123 S.Ct. at p. 1053 ] (dis. opn. of Thomas, J.).)

The United States Supreme Court ruling in Miller-El, supra, 537 U.S. 322 [ 123 S.Ct. 1029 ], was made on what could be termed a “chilly,” if not a “cold,” record. When the jury was selected, the defendant objected to its composition but did not use comparative juror analysis. Two years later, after the high court’s intervening decision in Batson, supra, 476 U.S. 79 , the case was remanded to the trial court. The original prospective jurors were not present, and it is open to question how much the trial court could recall of the demeanor and body language of prospective jurors or the circumstances of the challenges. The trial court’s ruling on remand was based on a cold record—the written questionnaires and the transcript of the voir dire— plus new testimony offered by the prosecutors to explain their challenges. Yet the United States Supreme Court noted no difficulty in using comparative juror analysis under those circumstances. The unhesitating use of comparative juror analysis by all Supreme Court justices in Miller-El is a striking contrast to the language of People v. Arias (1996) 13 Cal.4th 92, 136 , footnote 16 [ 51 Cal.Rptr.2d 770 , 913 P.2d 980 ], where this court declared that comparative juror “analysis is largely beside the point, because it ignores the legitimate subjective concerns ‘that go into a lawyer’s decision to select certain jurors while challenging others that appear to be similar [on the cold record].’ ” Miller-El shows that comparative juror analysis is very much on point when the trial court or the appellate court analyzes the prosecution’s explanations for its peremptory challenges. Although the majority here reinterprets Johnson, supra, 47 Cal.3d 1194 , to permit appellate consideration of comparative juror analysis when that issue was raised at *1333 trial, it does not repudiate language from Johnson, Arias, at page 136, and other cases denigrating that technique—language which is not in harmony with the United States Supreme Court opinions in Miller-El .

The rules of appellate review are clear and simple: With certain exceptions, none applicable here, a party cannot raise on appeal an issue the party neglected to raise at trial. There is no reason to go beyond those rules to perpetuate a separate doctrine that bars a party from raising comparative juror analysis on appeal when it has not been raised at trial.

II

In Wheeler, supra, 22 Cal.3d 258 , we used two different phrases to describe the standard for a prima facie case. We first said that the moving party “must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.” (Id. at p. 280, italics added.) We also said, however, that upon the presentation of the moving party’s 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.) Later cases have debated whether these two phrases state the same standard or two different standards. (Compare People v. Box (2000) 23 Cal.4th 1153, 1188 [ 99 Cal.Rptr.2d 69 , 5 P.3d 130 ] [same standard] with Cooperwood v. Cambra (9th Cir. 2001) 245 F.3d 1042, 1047 , and Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190, 1196-1197 [two different standards].)

The majority here reaffirms People v. Box, supra, 23 Cal.4th 1153 , and holds that Wheeler's “strong likelihood” and “reasonable inference” language states the same standard. But it then goes beyond Box to describe the standard as requiring a defendant seeking to establish a prima facie case to persuade the trial court that it is more likely than not that the prosecution’s challenges had a discriminatory purpose. The correct standard, however, is that the defendant must present facts that support a reasonable inference of discriminatory purpose. The distinction is subtle but crucial. A defendant will often be able to present facts, such as a pattern of prosecution challenges, from which a reasonable person can infer discriminatory purpose, but it is only at the next stage, when the prosecutor explains or fails to explain the challenges, that the trial court can determine whether the challenges actually were improper. Requiring a defendant to persuade the trial court of the prosecutor’s discriminatory purpose at the first Wheeler-Batson stage short-circuits the process, and provides inadequate protection for the defendant’s right to a fair trial under the equal protection clause of the federal Constitution ( Batson, supra, 476 U.S. at pp. 84-89 [106 S.Ct. at pp. 1718-1719]) and his right to a representative jury under the state Constitution ( Wheeler, supra, 22 Cal.3d at pp. 276-277).

*1334 Wheeler , as I noted, used two terms—“reasonable inference” and “strong likelihood”—to define a party’s initial burden. “Inference” is defined by statute; it is “a deduction of a fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” (Evid. Code, § 600.) It is presumed that the Legislature, when it enacts a law that uses a term defined in another statute, is aware of the statutory definition. (Colmenares v. Braemer Country Club, Inc. (2003) 29 Cal.4th 1019, 1030 [ 130 Cal.Rptr.2d 662 , 63 P.3d 220 ]; People v. Broussard (1993) 5 Cal.4th 1067, 1080 [ 22 Cal.Rptr.2d 278 , 856 P.2d 1134 ].) By the same reasoning, it should be presumed that the Wheeler court was cognizant of the statutory definition of “inference” when it used that term to describe the standard of proof of a prima facie case. California cases elucidate this definition: an inference “is more than a surmise or a conjecture” (Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 800 [ 286 Cal.Rptr. 57 ]) and must be based on probabilities, not possibilities (ibid.); “it is a reasonable deduction from the facts proved and, of course, must be logical” (Estate of Braycovich (1957) 153 Cal.App.2d 505, 512 [ 314 P.2d 767 ]). An inference, however, is permissive, and often a single set of facts can support multiple, conflicting inferences. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 337 [ 100 Cal.Rptr.2d 352 , 8 P.3d 1089 ] [“If such evidence logically permits conflicting inferences . . .”]; People v. Cooper (1991) 53 Cal.3d 771, 809 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ] [“if the prospective juror’s responses are equivocal, i.e., capable of multiple inferences . . .”]; Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314 [ 142 Cal.Rptr. 439 , 572 P.2d 53 ] [“When more than one inference can be reasonably deduced from the facts . . .”].)

“Likelihood,” on the other hand, has no statutory definition. In People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 [ 119 Cal.Rptr.2d 1 , 44 P.3d 949 ], this court said it did not necessarily mean “more likely than not.” (Id. at p. 916.) We then construed that term to describe a standard less demanding than preponderance of the evidence, holding that, consistent with the purpose of the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.), a sexual offender should be considered to be “likely” to reoffend “if he or she presents a substantial danger—that is, a serious and well-founded risk —of reoffending.” (Ghilotti, supra, 27 Cal.4th at p. 916 , italics omitted.)

If we merge the two concepts—reasonable inference and strong likelihood —we emerge with the conclusion that the defendant must show facts from which one could logically deduce that there was a substantial danger that the prosecutor’s challenges were based on improper grounds. Such a test is less demanding than the majority’s requirement of persuading the trial court that discriminatory purpose is more likely than not.

*1335 Although past California cases have referred to both the “reasonable inference” and “strong likelihood” standards, none required the defendant to persuade the trial court, at the first stage of a Wheeler-Batson proceeding, that the challenges more likely than not had a discriminatory purpose. The vast majority of decisions from other jurisdictions permit the defendant to establish a prima facie case by raising a reasonable inference of discriminatory purpose; they do not require the defendant to persuade the trial court that discriminatory intent is more likely than not. 4 The majority here cites only two decisions from other states as supporting the standard it adopts. Both offer only weak and uncertain support.

The majority first cites State v. Gonzalez (1988) 206 Conn. 391 [ 538 A.2d 210, 213 ], where the court said that “a defendant must establish by a preponderance of the evidence a prima facie case of purposeful discrimination.” But Connecticut adhered to that rule for only a year. In 1989 the Connecticut Supreme Court, under its authority to supervise the administration of justice, abolished the prima facie case requirement and established a one-stage procedure. (State v. Holloway (1989) 209 Conn. 636 [ 553 A.2d 166, 171-172 ].) Quoting a decision of the South Carolina Supreme Court, the Connecticut Supreme Court said: “ ‘Rather than deciding on a case by case basis whether the defendant is entitled to a hearing based upon a prima facie showing of purposeful discrimination under the vague guidelines set forth by the United States Supreme Court, the better course to follow would be to hold a Batson hearing on the defendant’s request whenever the defendant is a member of a cognizable racial group and the prosecutor exercises peremptory challenges to remove members of defendant’s race from the venire.’” (State v. Holloway, supra, 553 A.2d at p. 172, fn. 4 , quoting State v. Jones (1987) 293 S.C. 54 [ 358 S.E.2d 701, 703 ].)

The majority also cites Stanley v. State (1988) 313 Md. 50 [ 542 A.2d 1267 ], which said that the defendant must “prove by a preponderance of the evidence that the peremptory challenges were exercised in a way that shifts the burden of production to the State.” (Id. at p. 1277.) But Stanley goes on to quote a decision of the Florida Supreme Court that in evaluating a defendant’s showing, “ ‘any doubt as to whether the complaining party has met its initial burden should be resolved in that party’s favor.’ ” (Ibid., *1336 quoting State v. Slappy (Fla. 1988) 522 So.2d 18, 22 .) Finally, Stanley established a bright-line rule that the exclusion of every member of defendant’s racial group established a prima facie case. (Stanley, at p. 1284.)

The majority derives its standard not from lower court decisions that directly address the burden of establishing a prima facie case under Wheeler or Batson , but from references in Miller-El, supra, 537 U.S. 322 [ 123 S.Ct. 1029 ], and Batson, supra, 476 U.S. 79 , to cases under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) involving alleged invidious discrimination in connection with employment. Although neither Miller-El nor Batson involved the standard for proof of a prima facie case, the majority views the high court’s references as a general endorsement of title VII standards and procedures for use in evaluating Batson motions. And the majority asserts that in a title VII case, to establish a prima facie case, the plaintiff must prove that unlawful discrimination is more likely than not. (See maj. opn., ante, at pp. 1314-1315.)

The majority’s analysis, however, oversimplifies and misunderstands title VII procedure. A title VII plaintiff has the ultimate burden of proving discrimination by a preponderance of the evidence, but whether a plaintiff has met that burden is assessed at the last stage in the procedure. To establish a prima facie case in the first stage, a title VII plaintiff is not required to show it is more likely than not that the defendant engaged in illegal discrimination. Instead, the title VII plaintiff is required to prove facts from which one can infer illegal discrimination.

In McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [ 93 S.Ct. 1817 , 36 L.Ed.2d 668 ] and later cases, the high court said that a plaintiff alleging unlawful discrimination must, to establish a prima facie case, prove certain specific facts and actions 5 “from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a discriminatory criterion illegal under the Act.’” (Furnco Construction Corp. v. Waters (1978) 438 U.S. 567, 576 [ 98 S.Ct. 2943, 2949 , 57 L.Ed.2d 957 ], quoting Teamsters v. United States (1977) 431 U.S. 324, 358 [ 97 S.Ct. 1843, 1866 , 52 L.Ed.2d 396 ].)

Texas Dept, of Community Affairs v. Burdine (1981) 450 U.S. 248 [ 101 S.Ct. 1089 , 67 L.Ed.2d 207 ], a title VII case, further explained this same *1337 standard. It said: “The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.” (Burdine, supra, 450 U.S. at p. 253 [ 101 S.Ct. at p. 1094 ], italics added, fn. omitted.)

The next major decision, St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502 [ 113 S.Ct. 2742 , 125 L.Ed.2d 407 ], addressed the question whether the trial court in a title VII action must give summary judgment for the plaintiff if the court had found a prima facie case and determined that the employer’s explanation of its action was pretextual. The United States Supreme Court held that the trial court need not give judgment for the plaintiff under those circumstances. The court explained that once a plaintiff has proved facts that give rise to a prima facie case, a presumption of discriminatory purpose arises. The presumption serves the practical function of inducing the defendant to offer an explanation for its actions. (Id. at p. 510, fn. 3 [113 S.Ct. at pp. 2748-2749].) Once the defendant offers the explanation, the presumption disappears, and the trial court must decide whether a preponderance of the evidence shows that the employer acted with a discriminatory purpose. (Id. at pp. 509-510 and fn. 3 [113 S.Ct. at pp. 2748-2749].)

In Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133 [ 120 S.Ct. 2097 , 147 L.Ed.2d 105 ] (Reeves) the high court again explained title VII procedure. At issue in Reeves was whether the trial court must give judgment for the defendant if the plaintiff presented no additional evidence to rebut the defendant’s explanation of its actions. The court said the defendant was not automatically entitled to judgment under these circumstances; instead, the trier of fact still had the duty to determine at the last stage of the procedure whether the plaintiff had proved discriminatory purpose by a preponderance of the evidence. (Id. at pp. 142-143 [120 S.Ct. at pp. 2105-2106].) That decision should take into account “the strength of the plaintiffs prima facie case, the probative value of the proof that the employer’s explanation is false,” and the other evidence, if any, presented by the parties. (Id. at pp. 148-149 [ 120 S.Ct. at p. 2109 ].)

The high court’s insistence that the trial court determine whether a defendant acted with discriminatory purpose at the last stage, regardless of the falsity or weakness of the defendant’s explanation of its actions, is consistent with its language asserting that at the first stage the plaintiff need only prove facts from which discriminatory purpose can be inferred. It would, however, be difficult to reconcile the United States Supreme Court’s *1338 position with the view of the majority here. Under the majority’s view, when the trial court finds a prima facie case it necessarily finds that the plaintiff has shown it is more likely than not. that the employer had a discriminatory purpose. If the employer offers no persuasive explanation, then the trial court, having already found that the plaintiff has met the burden of proof, would have to find for the plaintiff. That indeed is what.the Eighth Circuit Court of Appeals held in Hicks v. St. Mary’s Honor Center (8th Cir. 1992) 970 F.2d 487 , and the high court’s decision reversing the circuit court’s decision (St. Mary’s Honor Center v. Hides, supra, 509 U.S. 502 ) shows that the Supreme Court does not consider a finding of a prima facie case the equivalent of a finding that the plaintiff has proved discriminatory purpose.

Gay v. Waiters’ and Dairy Lunchmen’s Union (9th Cir. 1982) 694 F.2d 531 , a title VII case, explains in more detail the proof of a prima facie case under McDonnell Douglas: “. . . McDonnell Douglas says nothing directly about the need to prove discriminatory intent. ‘[T]he evident thought was that proof of the four elements warranted an inference of such intent unless the defendant presented at least some evidence in rebuttal.’ Lieberman v. Gant, 630 F.2d 60, 63 (2d Cir. 1980) (footnote omitted). . . . [f] Viewed in this light, the role of the McDonnell Douglas prima facie case is closely analogous to its role in general civil litigation: it presents the legal question whether the plaintiff has met his burden of production, coming forward with sufficient probative evidence to permit a rational jury, or court, to find the material facts in his favor, thus avoiding a directed verdict or motion for judgment as a matter of law. A prima facie case of intentional discrimination is established if the plaintiff proves facts ‘from which one can infer, if such actions remain unexplained, this it is more likely than not’ that the defendant’s conduct was racially motivated. Furnco Construction Corp. v. Waters, [supra,] 438 U.S. 567, 576 [ 98 S.Ct. 2943, 2949 ] .... As an inference, it can but need not result in an ultimate judgment for the plaintiff. In other words, a prima facie case under McDonnell Douglas is one in which the plaintiff has met his immediate burden of production, but not necessarily his ultimate burden of persuasion.” (Gay v. Waiters’ and Dairy Lunchmen’s Union, supra, 694 F.2d at p. 543, fn. 10 .)

Tompkins v. State (Tex.Crim.App. 1987) 774 S.W.2d 195, 201 , a Batson case, relied on title VII cases for the principle that: “A prima facie case represents the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.”

Guz v. Bechtel National, Inc. (2000) 24.Cal.4th 317 [ 100 Cal.Rptr.2d 352 , 8 P.3d 1089 ] also described the title VII procedure. This court said that the purpose of the prima facie case requirement was “to eliminate at the outset *1339 the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified . . . (Guz, at p. 354.) “While the plaintiffs prima facie burden is ‘not onerous’ [citation], he must at least show ‘ “actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a [prohibited] discriminatory criterion . . . [Citations.]” {Id. at p. 355.) What actions, when proved by a preponderance of the evidence, give rise to an inference of unlawful discrimination under title VII procedure? The cases answer this question; they are those actions that, if unexplained, permit a reasonable inference of an improper purpose or motive. (Texas Dept, of Community Affairs v. Burdine, supra, 450 U.S. at p. 254 [ 101 S.Ct. at p. 1094 ]; Furnco Construction Corp. v. Waters, supra, 438 U.S. at p. 576 [ 98 S.Ct. at p. 2949 ].) I focus on the italicized phrase, because it is here that the trial court went wrong in the case before us.

The ultimate issue raised by a Wheeler-Batson motion is not whether the trial judge, or an appellate court, can find a possible neutral reason why a prosecutor might want to challenge a juror, but whether the prosecutor’s actual reason for the challenge was based on group bias. “[T]he trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutor’s exercise of the particular peremptory challenge.” (People v. Fuentes (1991) 54 Cal.3d 707, 720 [ 286 Cal.Rptr. 792 , 818 P.2d 75 ]; People v. Turner (1986) 42 Cal.3d 711, 721 [ 230 Cal.Rptr. 656 , 726 P.2d 102 ].) 6

The threshold for establishing a prima facie case should be relatively low, so that close cases are not decided at the first stage of the inquiry, but only after the trial judge has heard the prosecutor’s explanations and is in a better position to determine the propriety of the challenges. In fact, this may be the common practice. This court frequently encounters cases in which the pattern of challenges suggests but does not prove discriminatory purpose and the trial judge asks for an explanation without expressly finding a strong likelihood that the challenges were improper. (See, e.g., People v. Arias, supra, 13 Cal.4th 92, 136 ; People v. Jackson (1996) 13 Cal.4th 1164, 1197 [ 56 Cal.Rptr.2d 49 , 920 P.2d 1254 ].) At times prosecutors even volunteer an explanation without being asked. (See, e.g., People v. Williams (1997) 16 Cal.4th 635, 664 [ 66 Cal.Rptr.2d 573 , 941 P.2d 752 ]; People v. Howard (1992) 1 Cal.4th 1132, 1153, fn. 3 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ].) *1340 Establishing a low threshold for a prima facie case recognizes that the prosecutor’s explanation is often critical to the decision whether the challenge was proper: just as a reasonable explanation will dispel the suspicion of group bias, “[pjroof that [an] explanation is unworthy of credence is . . . probative of intentional discrimination, and it may be quite persuasive.” (Reeves, supra, 530 U.S. at p. 147 [ 120 S.Ct. at p. 2108 ] [title VII case].) The approach set out by the majority would, by contrast, compel trial judges to make decisions when they can only speculate as to the basis for the challenges.

Here defendant showed that the prosecutor challenged all three Blacks on the jury panel, used a disproportionate number of his peremptory challenges against members of that racial group, and failed to engage in any questioning whatever of any these prospective jurors notwithstanding invitations to do so by the trial court. With respect to two of the three jurors, there is nothing in their oral or written responses that stands out to show they would be unacceptable jurors.

Of course there still may be neutral explanations for the challenges, and if it is apparent that the prosecutor had neutral reasons for the challenges, then the pattern of challenges would not give rise to an inference of discriminatory purpose. In such cases the trial court need not find a prima facie case. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1092 [ 259 Cal.Rptr. 630,774 P.2d 659 ]; People v. Howard, supra, 1 Cal.4th 1132, 1205 (dis. opn. of Kennard, J.).) But that rule should' not apply when the trial court can only speculate on the basis for the challenges. ( Howard, supra, at p. 1207 .) The prosecutor does not need to have reasonable grounds for challenging a juror; the challenge passes constitutional scrutiny if it is based on any nondiscriminatory ground. (See Purkett v. Elem (1995) 514 U.S. 765, 768 [ 115 S.Ct. 1769, 1771 , 131 L.Ed.2d 834 ] [prosecutor did not like juror’s haircut].) The ability of the trial court to find such a neutral explanation should not defeat the defendant’s prima facie case when it is not apparent that the explanation was the true reason for the challenge. In the case before us, for example, the trial court said one reason for the prosecution’s challenge of Prospective Juror S.E. could have been her answer to question No. 63 on the juror questionnaire. In that answer, S.E. expressed sympathy for the victim. Such sympathy would have been a neutral basis for a challenge, but was not an obvious basis for a prosecution challenge because a prosecutor would generally view a juror who expressed sympathy for the victim as a favorable juror. The other explanations for the prosecutor’s challenges suggested by the trial court are also implausible. Thus, the pattern of prosecution challenges here created a reasonable inference of discriminatory purpose, which in the absence of any explanation from the prosecutor is not overcome by the possibility that the challenges could have been based on neutral grounds.

*1341 The trial court should have found a prima facie case and asked the prosecutor to explain the basis for the challenges. The court’s failure to do so is error, and reversible per se. (See People v. Fuentes, supra, 54 Cal.3d at p. 715 ; People v. Snow (1987) 44 Cal.3d 216, 226-227 [ 242 Cal.Rptr. 477 , 746 P.2d 452 ]; People v. Turner, supra, 42 Cal.3d at p. 728 .)

I speak of a prosecutor’s use of peremptory challenges and a defendant’s objection because this case, like both Wheeler and Batson , arose in that factual setting. The principles of those decisions, however, also apply to peremptory challenges by a criminal defendant (Georgia v. McCollum (1992) 505 U.S. 42 [ 112 S.Ct. 2348 , 120 L.Ed.2d 33 ]) and to challenges by parties to civil cases (Edmonson v. Leesville Concrete Co., Inc. (1991) 500 U.S. 614 [ 111 S.Ct. 2077 , 114 L.Ed.2d 660 ]).

People v. Crittenden (1994) 9 Cal.4th 83 [ 36 Cal.Rptr.2d 474 , 885 P.2d 887 ] is not necessarily an exception to this pattern. The defendant there did raise comparative juror analysis at trial. On appeal, this court did not review the defendant’s analysis and compare individual jurors, but said that the analysis was inapplicable because the defendant was comparing the challenged Black jurors to other jurors who had also been removed by peremptory challenge.

I was not yet on the court in February of 1989 when it decided Johnson, supra, 47 Cal.3d 1194 , but I followed that precedent and concurred in post -Johnson decisions rejecting comparative juror analysis. The United States Supreme Court’s 2003 decision in Miller-El, supra, 537 U.S. 322 [ 123 S.Ct. 1029 ], has led me to reconsider the basis for this court’s rejection of comparative juror analysis on appeal.

See Cooperwood v. Cambra, supra, 245 F.3d at page 1046 ; Jordan v. Lefevre (2d Cir. 2000) 206 F.3d 196, 200 ; Wade v. Terhune, supra, 202 F.3d at page 1197 ; Cent. Ala. Fair Housing Center v. Lowder Realty (11th Cir. 2000) 236 F.3d 629, 636-637 ; Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 679 ; Tankleff v. Senkowski (2d Cir. 1998) 135 F.3d 235, 249 ; Mahaffey v. Page (7th Cir. 1998) 162 F.3d 481, 485 ; Burks v. Borg (9th Cir. 1994) 27 F.3d 1424, 1428 ; U.S. v. Johnson (8th Cir. 1989) 873 F.2d 1137, 1140 ; U.S. v. Chinchilla (9th Cir. 1989) 874 F.2d 695, 698 ; U.S v. Chalan (10th Cir. 1987) 812 F.2d 1302, 1314 ; Valdez v. People (Colo. 1998) 966 P.2d 587, 590 .

The specific facts and actions the plaintiff must prove to establish a prima facie case of discriminatory purpose under McDonnell Douglas are: “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” (McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p. 802 [ 93 S.Ct. at p. 1824 ].)

In title VII cases, the trial court may find for the employer defendant even if the reason it gave was a sham, if the evidence shows that the defendant gave the false explanation to conceal something other than discrimination, and had a nondiscriminatory reason for its action. (See Reeves, supra, 530 U.S. at p. 148 [ 120 S.Ct. at p. 2108 ].) But the nondiscriminatory reason must be the defendant’s reason.