People v. Young

BROWN, J., Concurring.

I write to highlight a doubt I have about our holding in People v. Motion (1985) 39 Cal.3d 596 [ 217 Cal.Rptr. 416 , 704 P.2d 176 ] (Motion). In Motion , at page 605, we held that for purposes of a Wheeler analysis, Black women constitute a “cognizable group.” (See People v. Wheeler (1978) 22 Cal.3d 258, 280 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler); see also Batson v. Kentucky (1986) 476 U.S. 79, 96 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ] (Batson).) We have reaffirmed that holding several times in dictum (People v. Cleveland (2004) 32 Cal.4th 704, 734 [ 11 Cal.Rptr.3d 236 , 86 P.3d 302 ]; People v. Boyette (2002) 29 Cal.4th 381, 422 [ 127 Cal.Rptr.2d 544 , 58 P.3d 391 ]; People v. Garceau (1993) 6 Cal.4th 140, 171 [ 24 Cal.Rptr.2d 664 , 862 P.2d 664 ]; People v. Clair (1992) 2 Cal.4th 629, 652 [ 7 Cal.Rptr.2d 564 , 828 P.2d 705 ]), and relying heavily on Motion, the Court of Appeal has held that Black men also constitute a cognizable group. (People v. Gray (2001) 87 Cal.App.4th 781 , 790 [ 104 Cal.Rptr.2d 848 ]; but see United States v. Dennis (11th Cir. 1986) 804 F.2d 1208, 1210 [rejecting Batson claim for failure to show “that black males . . . have been singled out for different treatment under the laws not simply as blacks, but as black males”].) I believe our analysis in Motion focuses too much on the principle of maximum diversity and loses sight of the underlying purpose of jury selection.

The majority opinion adequately summarizes the law applicable to Batson/Wheeler motions. (See maj. opn., ante, at pp. 1170-1174) Despite the emphasis both Wheeler and Batson placed on the exclusion of members of a “cognizable group,” neither case actually defined that term. (See Wheeler, supra, 22 Cal.3d at p. 280 ; Batson, supra, 476 U.S. at p. 96 [using the term “cognizable racial group”].) We later made some effort to define the term in Rubio v. Superior Court (1979) 24 Cal.3d 93, 97-98 [ 154 Cal.Rptr. 734 , 593 P.2d 595 ] (Rubio), and People v. Fields (1983) 35 Cal.3d 329, 348-349 [197 Cal-Rptr. 803, 673 P.2d 680 ] (Fields), but neither case had a majority opinion. Moreover, depending on whether the exclusion is challenged as a violation of equal protection rights (Batson) or the defendant’s right to an impartial jury drawn from a representative cross-section of the community (Wheeler), or both, the question of what constitutes a cognizable group may be answered in different ways.

*1236 Most of our cases defining “cognizable group” have arisen in. the Wheeler context, and they focus on ensuring that no “perspective” that exists in the community at large be systematically excluded from the jury. ( Rubio, supra, 24 Cal.3d at pp. 97-98; see also Fields, supra, 35 Cal.3d at p. 348 .) Federal cases, on the other hand, applying equal protection law have considered whether the group has been the target of a distinct form of discrimination. In Castaneda v. Partida (1977) 430 U.S. 482, 494 [ 51 L.Ed.2d 498 , 97 S.Ct. 1272 ], for example, the high court held that the group had to be “a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied.” Similarly, in Murchu v. United States (1st Cir. 1991) 926 F.2d 50, 54 (Murchu), the court stated that the moving party “must show that ... the group [is] one the members of which are experiencing unequal, i.e. discriminatory, treatment, and needs protection from community prejudices.” 1

These federal definitions have the merit of narrowing the inquiry. Our cases applying Wheeler are so expansive in their definition of cognizable group that the possibilities are literally endless. Despite our justifiable enthusiasm to include all community perspectives in the judicial process, we must also recognize that at some point this principle clashes with the more fundamental purpose of selecting a fair and impartial jury. If we are increasingly willing to identify groups that share a common perspective and therefore can be the subject of a Wheeler motion, we eventually eclipse peremptory challenges altogether, but in California, peremptory challenges are themselves an important part of the process of ensuring a fair and impartial jury. Therefore, we cannot apply Wheeler so broadly that we effectively turn every peremptory challenge into a challenge for cause.

The problem of an endless proliferation of cognizable groups is exacerbated by the possibility of cross-categories—that is, the subgroups that are constructed from the intersection of two or more cognizable groups. If we recognize cross-categories as distinct cognizable groups, then the number of cognizable groups expands geometrically: two cognizable groups give rise to four possible subgroups, three cognizable groups give rise to eight possible subgroups, four groups give rise to 16, etc. Logic, as well as the unusual *1237 prophylactic remedy that Wheeler and Batson created, dictate that, for a cross-category to constitute a separate cognizable group, there must be some indication that the two categories operate in conjunction, generating a distinct synergy of prejudice or group bias. With that point in mind, the issue in Motion and in this case becomes clear. Before we can find that Black women are a cognizable group, we have to find that, in a sufficient number of cases to justify a Batson/Wheeler remedy, gender is not the basis of group discrimination, nor is ethnicity that basis, but rather “ethno-gender”—the conjunction of a person’s gender and ethnicity—is the basis of group discrimination. In other words, we have to find that, from the perspective of jury selection, being a Black woman is significantly different from being Black and being a woman. Moreover, we have to make that finding in an evidentiary vacuum; declaring it to be so without the benefit of hearings, formal studies, expert testimony, or even anecdotal evidence.

In Motion, supra, 39 Cal.3d at page 605 , we defined a cognizable group as any group that has a “definite composition” and “ ‘a basic similarity in attitudes or ideas or experience. . . .’ ” (See also Rubio, supra, 24 Cal.3d at pp. 97-98; Adams v. Superior Court (1974) 12 Cal.3d 55, 60 [ 115 Cal.Rptr. 247 , 524 P.2d 375 ].) That standard is too broad because in many cases a similarity in attitudes actually justifies the categorical exclusion of a group of jurors-—for example, when the attitudes in question suggest a specific inability to be impartial. (See, e.g., Rubio , at pp. 99-100 [felons are not a cognizable group]; People v. Turner (1984) 37 Cal.3d 302, 313-315 [ 208 Cal.Rptr. 196 , 690 P.2d 669 ], overruled on another ground by People v. Anderson (1987) 43 Cal.3d 1104, 1115 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ] [persons with reservations about capital punishment are not a cognizable group].) Instead, as noted, the standard must focus on the purpose of the inquiry, which is to ensure a fair and impartial jury. (Batson, supra, 476 U.S. at p. 87 ; Wheeler, supra, 22 Cal.3d at pp. 276-277.)

I would not reject, as a matter of law, the possibility that Black women might be the victims of a unique type of group discrimination justifying their designation as a cognizable group, but I see no evidentiary basis in Motion for us to have made a judicial finding to that effect, binding in all jury selection proceedings, and I see no such evidentiary basis in this case either.

The invidious effect of our holding in Motion is that the law now memorializes a pernicious stereotype it is trying to combat, and it does so without anyone even establishing, as a factual matter, that the stereotype *1238 preexisted our holding. In this way, we created the stereotype, pretending to destroy it. Here, of course, we can avoid the issue by finding no purposeful discrimination, but the wisdom and continuing validity of our holding in Motion remain unresolved.

In Murchu, supra, 926 F.2d at page 54 , the court stated the entire test as follows: “To establish membership in a ‘cognizable group’ for Batson purposes, a defendant must show that (1) the group is definable and limited by some clearly identifiable factor, (2) a common thread of attitudes, ideas or experiences runs through the group, and (3) a community of interests exists among the group’s members, such that the group’s interest cannot be adequately represented if the group is excluded from the jury selection process. A further ingredient of cognizability is that the group be one the members of which are experiencing unequal, i.e. discriminatory, treatment, and needs protection from community prejudices.” (See also United States v. DiPasquale (3d Cir. 1988) 864 F.2d 271 , 277; United States v. Sgro (1st Cir. 1987) 816 F.2d 30, 33 .)