noting the trial court correctly concluded that it had discretion to deny the jury's request to playback summation and "expressed appropriate concern over diverting the jury's attention from proper consideration of the evidence and instructions"
How later courts described this case
- noting the trial court correctly concluded that it had discretion to deny the jury's request to playback summation and "expressed appropriate concern over diverting the jury's attention from proper consideration of the evidence and instructions"
- holding that unanimity was not required on the sexual assault or attempted sexual assault underlying the defendant's felony murder conviction
- declining to follow Hidalgo “[i]n light of the clear terms of 5 the sentencing guidelines and the fact that Hidalgo has been discredited even in the Ninth 6 Circuit.”
- California does generally recognize a defendant's right to be present at a readback, but also states “that counsel has discretion to consent to a reading of testimony outside the presence of the court, counsel, and/or defendant.”
Written by the judges who cited it.
Later courts went against this
Questioned by United States v. Alfonso Hayden, 255 F.3d 768 (2001)
3 Cal.4th 195, 10 Cal.Rptr.2d 636, 833 P.2d 643 (1992) (in bank), may undermine the continuing validity of our decision in
Distinguished
Distinguished by People v. Memro, 11 Cal. 4th 786 (1995)
We reach that conclusion notwithstanding defendant’s argument, in his reply brief, that Pride is distinguishable because this case was retried following a court finding that a felony-murder special-circumstance allegation was not true.
The opinion
*270 MOSK, J.
I dissent
This case is but another example of the reluctance of many trial courts to conform to the letter and spirit of People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ], and the subsequently decided Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ]. (See, e.g., People v. Johnson (1989) 47 Cal.3d 1194 [ 255 Cal.Rptr. 569 , 767 P.2d 1047 ], in which all Black, Jewish, and Asian prospective jurors were peremptorily challenged on invidious grounds; see also People v. Howard (1992) 1 Cal.4th 1132, 1202-1210 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ] (dis. opn. of Kennard, J.).)
Here, defendant, a Black man, was charged with killing two White women. The prosecutor peremptorily challenged six Black prospective jurors, including the last two on the panel. The result was that defendant was convicted and condemned to death by an all-White jury. As a matter of pure statistical probabilities, it would appear unlikely that in one of the most populous counties in the state, with more than a million residents and many of them members of minority groups, each and every one of the Black jurors could properly have been struck.
The prosecutor stated that he exercised peremptory challenges against the six Black prospective jurors because of what he perceived to be their reservations about the death penalty. I suggest that such a considered attitude on the part of Black jurors is altogether understandable in view of incontrovertible evidence that Blacks are more likely to be capitally prosecuted and to receive the ultimate sanction than persons of other races. 1
In February 1990, the United States General Accounting Office submitted a report to the Senate and House Committees on the Judiciary, entitled “Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities.” Undoubtedly, most of the findings are implicitly known in minority communities and by minority group members called for jury duty. I cite only a few of the findings. 2
“In 82 percent of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death *271 penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. . . .
“The race of victim influence was found at all stages of the criminal justice system process ....
“Legally relevant variables, such as aggravating circumstances, were influential but did not explain fully the racial disparities researchers found. . . . The analyses show that after controlling statistically for legally relevant variables and other factors thought to influence death penalty sentencing (e.g., region, jurisdiction) differences remain in the likelihood of receiving the death penalty based on race of victim.
“. . . In a few studies, analyses revealed that the black defendant/white victim combination was the most likely to receive the death penalty. . . .
“Finally, more than three-fourths of the studies that identified a race of defendant effect found that black defendants were more likely to receive the death penalty.” (U.S. General Accounting Office, Rep. to the Sen. and House Corns, on the Judiciary, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (Feb. 1990) pp. 5-6.)
Thus, when a Black prospective juror expresses suspicion of the death penalty and reluctance to enthusiastically impose that punishment in a case in which the defendant is Black and the victim White, his or her words should be viewed with some tolerance and understanding. As we made plain in Wheeler , such suspicion and reluctance may not “stem from individual biases related to the peculiar facts or the particular parties] at trial, but from [a] differing attitudef] toward the administration of justice and the nature of criminal offenses.” ( 22 Cal.3d at p. 277, fn. 17 , internal quotation marks omitted.) Perhaps the Black juror’s perspective may be somewhat different from that of members of other groups. But it simply does not bar him or her from service on an equal footing. (See, e.g., People v. Sanders (1990) 51 Cal.3d 471, 543 [273 CaL.Rptr. 537, 797 P.2d 561 ] (dis. opn. of Broussard, J.).) Indeed, in Wheeler we emphasized that “[t]he representation on juries of [such] differences in juror attitudes is precisely what the representative cross-section standard ... is designed to foster.” ( 22 Cal.3d at p. 277, fn. 17 , internal quotation marks omitted.)
I must admit a certain reluctance to conclude that reversal is required here in view of the apparently strong inculpatory evidence. Nevertheless, as *272 Justice Frankfurter reminded us in Offutt v. United States (1954) 348 U.S. 11, 14 [ 99 L.Ed. 11, 13 , 75 S.Ct. 11 ], “justice must satisfy the appearance of justice.” Regrettably, in the selection of the jury in this case, the appearance of justice was not satisfied.
Appellant’s petition for a rehearing was denied September 30, 1992, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the petition should be granted.
Although the California Department of Justice report entitled “Adult Felony Arrest Dispositions in California, 1981-1990,” does not distinguish between death cases and felony convictions, it concludes that “The proportion of blacks among the convicted population was about four times as great as the proportion of blacks in the general population (26.2 versus 6.7 percent, respectively).” (Cal. Dept. Justice, Div. of Law Enforcement, Adult Felony Arrest Dispositions in California 1981-1990 (1992) p. 38.)
Contrary to usage in my text, “black” and “white” are not capitalized in the General Accounting Office and the California Department of Justice reports.