People v. Lenix

*632 BAXTER, J., Concurring.

I concur in the majority opinion. I write separately, however, to emphasize two points. First, the United States Supreme Court appears to have reserved the issue whether reliance on comparative juror analysis may be deemed procedurally defaulted if not raised at trial. Second, if the high court were to subsequently hold that state courts may enforce a procedural default rule as such, nothing in today’s majority opinion would preclude this court from doing so in the future.

In Snyder v. Louisiana (2008) 552 U.S. 472 [ 170 L.Ed.2d 175 , 128 S.Ct. 1203 ] (Snyder), the United States Supreme Court conducted a comparative juror analysis as part of its evaluation of the petitioner’s claim that the prosecution impermissibly used a peremptory challenge to exclude a prospective juror on the basis of race. (Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ] (Batson)] see People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler).) In conducting the analysis, despite the fact that none had been requested or performed at trial, the high court stated in a footnote; “The Louisiana Supreme Court did not hold that petitioner had procedurally defaulted reliance on a comparison of the African-American jurors whom the prosecution struck with white jurors whom the prosecution accepted. On the contrary, the State Supreme Court itself made such a comparison. See [State v. Snyder (La. 2006)] 942 So.2d 484 , 495-496 ....” (Snyder, supra, 552 U.S. at p._, fn. 2 [ 128 S.Ct. at p. 1211, fn. 2 ].)

As the majority observes, the meaning of the Snyder footnote is unclear, and it does not necessarily suggest the United States Supreme Court would honor a state procedural rule requiring that comparative juror analysis be conducted first in the trial court or be deemed defaulted or forfeited. (Maj. opn., ante, at p. 620, fn. 14.) Nonetheless, the footnote may reasonably be viewed as reflecting the high court’s intent to reserve this issue for future decision.

In the event the Supreme Court were to defer to state courts that impose a procedural bar when a defendant relies on comparative juror analysis for the first time on appeal, it bears emphasis that our decision today, which follows the high court’s lead in Snyder, supra, 552 U.S. 472 [ 128 S.Ct. 1203 ], and Miller-El v. Dretke (2005) 545 U.S. 231 [ 162 L.Ed.2d 196 , 125 S.Ct. 2317 ], would not hinder our future consideration and application of a procedural default rule.

In this regard, the majority identifies a number of valid and pragmatic considerations that support application of a procedural default rule in cases *633 where the defendant fails to request a comparative juror analysis at trial. Most notably, “ ‘a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In that situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable.’ ” (Maj. opn., ante, at p. 620, quoting Snyder, supra, 552 U.S. at p._[ 128 S.Ct. at p. 1211 ].) Indeed, even if the trial court happens to conduct a reasonably thorough exploration of the subject matter as to which similarities are alleged, there are a variety of factors and considerations that go into a lawyer’s decision to select certain jurors while challenging others that appear to be similar, for example, “ ‘[T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box.’ ” (Maj. opn., ante, at p. 623, quoting People v. Johnson (1989) 47 Cal.3d 1194, 1220 [ 255 Cal.Rptr. 569 , 767 P.2d 1047 ].) When a comparative juror analysis is undertaken for the first time on appeal, the record is likely to reflect none of these other considerations.

Moreover, requiring a defendant to seek a comparative analysis at trial promotes the policy of judicial economy and fairness in at least two ways. First, if the defendant perceives that certain unchallenged jurors are similarly situated to prospective jurors who were challenged, then alerting the trial court to that state of affairs would permit the court to take immediate curative action and avoid the time and expense of reversal and retrial if it finds the defendant’s complaint meritorious. (See Watkins v. State (Tex.Crim.App. 2008) 245 S.W.3d 444, 457-458 (conc. opn. of Keller, P. J.).) Second, a trial court that is called upon to conduct a comparative analysis could ensure that the prosecution is afforded a fair opportunity both to state its reasons for challenging a prospective juror and to explain its failure to challenge any alleged similarly situated jurors. This minimizes the prospect of appellate speculation in the evaluation of a Wheeler/Batson claim. (See Watkins , at p. 458.)

In sum, the United States Supreme Court has not yet addressed whether a state court may deem a defendant procedurally barred on appeal from relying on juror comparisons to support a Wheeler/Batson third-stage claim, if the defendant did not rely on such comparisons at trial. Given this circumstance, I fully agree that, for the time being, we should view the high court’s recent decisions as requiring reviewing courts to perform comparative juror analysis if requested and if the record is adequate to permit comparisons, even when such an analysis was not conducted at trial.

Chin, J., concurred.