People v. Lenix

MORENO, J., Concurring.

I agree with the majority that appellate courts should, under appropriate circumstances, engage in comparative juror *634 analysis as a means of detecting the discriminatory use of peremptory challenges in violation of People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] and Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ], Miller-El v. Dretke (2005) 545 U.S. 231 [ 162 L.Ed.2d 196 , 125 S.Ct. 2317 ] and Snyder v. Louisiana (2008) 552 U.S. 472 [ 170 L.Ed.2d 175 , 128 S.Ct. 1203 ] (Snyder) teach us implicitly that however problematic it may be to conduct such comparative analysis for the first time on appeal, it is even more problematic to categorically refuse to conduct such analysis, thereby permitting some Wheeler/Batson violations to go undetected. Indeed, because those who discriminate rarely admit to discrimination, comparative analysis has been widely used in a variety of fields to ferret out the unlawful discrimination that hides behind pretext. (See, e.g., Schwemm, Housing Discrimination: Law and Litigation (2007 ed.) § 32.2, pp. 32-4 to 32-5 [noting the common use of Black and White “testers” to determine whether Black renters and home buyers are subject to discrimination].) It is therefore unsurprising the United States Supreme Court has employed the use of such comparative analysis as a means of detecting unlawful exclusion of persons from jury service on the basis of race. I write separately to clarify the circumstances under which such comparative analysis is appropriate.

The United States Supreme Court recently emphasized that the deference appellate courts should accord to trial court decisions regarding Batson challenges “is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike.” ( Snyder, supra, 552 U.S. at p._[ 128 S.Ct. at p. 1209 ].) As the majority convincingly explains, peremptory challenges may turn upon perceptions not available to someone reading the cold record—the tone of voice, facial expression, body language, etc., of the prospective juror. When a trial judge validates a prosecutor’s challenge based on the prospective juror’s demeanor, and makes clear that such demeanor is the primary reason for validating the challenge, then it is difficult to imagine any circumstance under which an appellate court would second-guess that judgment.

On the other hand, when the challenge is made based on factors other than demeanor, or, in the case of Snyder, the challenge is based both on demeanor and nondemeanor considerations, and the trial court does not state or imply on the record that the challenge based on demeanor is credible, then appellate courts may use comparative juror analysis to test the validity of the prosecutor’s proffered challenges, comparing the supposedly objectionable characteristics of the rejected prospective juror with the characteristics of seated jurors. ( Snyder, supra, 552 U.S. at pp. - [128 S.Ct. at pp. 1209-1213].) Such analysis, often in combination with other indications of bias, such as the inherently dubious nature of the explanation for the challenge, or an apparent

*635 pattern of excluding minority jurors, may be a legitimate basis for an appellate court’s conclusion that there was a Wheeler/Batson violation in the court below. (Ibid.)

In the present case, as the majority recounts, one reason the prosecutor gave for peremptorily challenging Prospective Juror C.A. is that her brother-in-law had been tilled 10 or 11 years earlier in a gang-related murder and that this could have meant that her brother-in-law was himself a gang member, although the prosecutor made no inquiry to confirm that. Defendant challenges the inherent dubiousness of this reasoning, buttressing his argument by pointing to the possible gang affiliation of Juror No. 482753’s cousin, who had shot and tilled someone when he was 16 years old. Were it the case that the prosecutor’s only reason for excluding C.A. was her brother-in-law’s possible gang affiliation, I might agree with defendant’s argument. However, as the majority explains, other reasons for excluding C.A., most particularly the fact that she was the only one to raise her hand in response to the question of whether a prospective juror had a hostile, confrontational or adverse contact with law enforcement, provide sufficient justification for the peremptory challenge. Moreover, like the majority, I agree that Juror No. 482753 demonstrated a more positive attitude toward law enforcement, thereby undermining defendant’s argument that he was comparable to C.A. On this basis, I concur in the judgment.

Appellant’s petition for a rehearing was denied September 24, 2008. Corrigan, J., did not participate therein.