# People v. Carasi > California Supreme Court · August 25, 2008 · 44 Cal. 4th 1263 URL: https://www.frixlaw.com/law-library/cases/9797965 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. PAUL JOE CARASI, Defendant and Appellant - **Court:** California Supreme Court - **Decided:** August 25, 2008 - **Citations:** 44 Cal. 4th 1263; 82 Cal. Rptr. 3d 265; 190 P.3d 616; 2008 Cal. LEXIS 10355 - **Precedential status:** Published - **Opinion:** Concurring in part by Kennard - **Judges:** Baxter, Werdegar - **Cited by:** 162 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9797965 ## How later opinions describe it (automated extraction) - holding that the jury could reasonably “conclude that defendant sought to benefit financially” from the victim’s death by eliminating his monthly child support obligation, given the fact defendant had limited financial resources and he “perceived his child support obligation t… - observing that voir dire seeks to uncover jurors views in the abstract to ensure that they consider the facts with an open mind and that this aim is undermined by overly specific questions that expose the facts of the case - recognizing that district courts err in categorically limiting inquiry into case-specific issues ## Opinion text *1318 KENNARD, J., Concurring and Dissenting. I join the majority in affirming defendant’s two murder convictions and the special circumstances of multiple murder, murder for financial gain, and lying in wait. For the reasons given in Justice Werdegar’s concurring and dissenting opinion, however, I would reverse the judgment of death, based on the trial court’s refusal to ask prospective jurors whether the circumstances that defendant killed his mother and the mother of his child would cause them automatically to vote for death, without consideration of the mitigating circumstances presented at the penalty phase. I write separately to explain my views on another issue: Whether defendant made a prima facie showing that the prosecution’s peremptory challenges against prospective women jurors were motivated by group bias. On this issue, as explained below, I disagree with the majority’s reasoning underlying its conclusion (with which I agree) that defendant failed to make a prima facie case. I During jury selection, the prosecutor exercised 23 peremptory challenges, 20 of them against women. At the end of voir dire, counsel for codefendant Donna Lee moved to strike the jury panel on the ground that the prosecutor had impermissibly exercised sex-based peremptory challenges. Defendant joined in codefendant Lee’s motion. The trial court, commenting that the percentage of the prosecution’s challenges against women was “eyebrow-raising, to say the least,” took the motion under submission to determine whether the defense had made a prima facie showing that the challenges were motivated by group bias. More than a month later, long after the evidentiary portion of the trial had started, the court denied the motion without asking the prosecution to give its reasons for the challenges, explaining that it had considered “the background of the jurors who were excused,” the gender of the persons selected to serve as jurors, and the circumstance that the majority of the panel consisted of women. II Peremptory challenges against prospective jurors may not be based on impermissible group bias, such as race or sex. (Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ]; J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S. 127, 129 [ 128 L.Ed.2d 89 , 114 S.Ct. 1419 ]; People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler).) The party objecting to the challenges must establish a prima facie case of group bias *1319 “ ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” (Johnson v. California (2005) 545 U.S. 162, 168 [ 162 L.Ed.2d 129 , 125 S.Ct. 2410 ].) The challenger must then offer a justification for the strikes, after which the trial court must decide whether the party objecting to the peremptory challenges has shown that they were motivated by group bias. (Ibid.) Ordinarily, this court reviews for substantial evidence a trial court’s determination that the defendant failed to make the requisite prima facie showing of impermissible group bias. (People v. Bonilla (2007) 41 Cal.4th 313, 341 [ 60 Cal.Rptr.3d 209 , 160 P.3d 84 ]; People v. Jones (1998) 17 Cal.4th 279, 293 [ 70 Cal.Rptr.2d 793 , 949 P.2d 890 ].) But here, as the majority explains, we must “independently determine whether the record permits an inference that the prosecutor excused jurors on prohibited discriminatory grounds.” (Maj. opn., ante, at p. 1293; see also People v. Kelly (2007) 42 Cal.4th 763, 779 [ 68 Cal.Rptr.3d 531 , 171 P.3d 548 ].) In Wheeler , this court gave examples of evidence relevant to establish a prima facie showing of bias: “[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire .... Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.” ( Wheeler, supra, 22 Cal.3d at pp. 280-281, italics added, fn. omitted; see also People v. Kelly, supra, 42 Cal.4th at pp. 779-780.) Here, the prosecution exercised a disproportionate number of its peremptory challenges—20 out of 23 challenges, or 87 percent—against women. Also belonging to that group was codefendant Lee, against whom the prosecutor was seeking the death penalty. Because the evidence of guilt as to both defendant and codefendant Lee was overwhelming, the primary issue at trial was likely to be that of penalty, and the prosecutor may have feared that women would, out of sympathy for Lee, not vote for death. 1 *1320 These facts, according to the majority, do not give rise to an inference of discriminatory purpose. (Johnson v. California, supra, 545 U.S. 162, 168 .) The majority explains: “[A]fter initially accepting the panel without exercising any peremptory challenges at all, the prosecutor accepted the panel eight additional times with seeming disregard for the number of females or the ratio of female to male jurors. On two such occasions, the prosecution was willing to have defendant tried by a jury of eight women and four men. Two other times, there were six men and six women in the jury box—another split suggesting men were not being favored over women. The prosecution chose, on two more occasions, to peremptorily excuse a man when the panel consisted of seven or more women.” (Maj. opn., ante, at p. 1294.) This “pattern of excusáis and acceptances” (ibid.), the majority concludes, demonstrates that the prosecutor’s peremptory challenges were not sex-based. The majority’s reasoning is unpersuasive in light of the tactical realities of jury selection in a multidefendant capital case. True, the prosecutor here twice accepted jury panels that included eight women. But this occurred very early in the jury selection process, when defendant and codefendant Lee had many peremptory challenges remaining and it was highly unlikely that both would accept the jury panel as then constituted. Understanding this, an experienced prosecutor might well perceive a tactical advantage in declining to exercise a peremptory challenge at that stage. By conserving peremptory challenges early in the jury selection process, the prosecutor could expect to have more remaining challenges than the defense as jury selection neared its conclusion. In particular, a prosecutor wanting to reduce the number of women on the final jury panel might well accept a panel containing a high ratio of women to men early in the selection process, with the expectation that peremptory challenges could more effectively be used to reduce this ratio later, after the two defendants had exhausted their peremptory challenges. The majority points out that the prosecutor several times accepted jury panels of six men and six women. (Maj. opn., ante, at p. 1294.) True. But in a case where a majority of the prospective jurors under consideration were women, a prosecutor biased against women could reasonably have regarded such a panel as acceptable. Nor is it significant that here the prosecutor excused two men when the panel contained a majority of women. A prosecutor biased against women would not necessarily permit that bias to prevail over all other considerations and might well exercise some peremptory challenges against men whose questionnaire answers and voir dire responses suggested that they would be highly unsympathetic to the prosecution in the particular case. The above-mentioned “pattern of excusáis and acceptances” (maj. opn., ante, at p. 1294) is the sole basis for the majority’s rejection of defendant’s *1321 claim of impermissible group bias underlying the prosecution’s exercise of 20 out of 23 peremptory challenges against women. Had that pattern been the only evidence on this issue, I would have concluded that defendant had established a prima facie case of impermissible group bias. But there is other evidence, not at all discussed by the majority, that strongly indicates sex-neutral reasons for the prosecutor’s challenges. To determine whether a defendant has made the requisite prima facie showing, this court often examines the background of the jurors who were excused, as revealed by their answers to the juror questionnaires and during voir dire, to see whether those answers suggest a reason for the prosecutor’s peremptory challenges. (See, e.g., People v. Bonilla, supra, 41 Cal.4th at pp. 346-349.) After a careful and thorough examination of answers given in the jury questionnaires and at voir dire, I conclude there were obvious sex-neutral reasons for the challenges. The answers of 12 of the 20 women who were excused by the prosecutor show a strong reluctance to impose the death penalty. Defendant concedes that seven of the women challenged (Prospective Jurors Mariannel B.-D., Rose W., Joyce C., Bianca G., Abigail H., Deanna M., and Lois S.) “did express some aversion to [the] death penalty in principle or in practice.” Similar views were expressed in the answers of five other prospective jurors (Jeanette A., Janet H., Carol R., Linda R., and Rosemarie K.). Defendant, however, insists that these five women were not opposed to the death penalty because each had checked off a box on the jury questionnaire indicating a desire to keep the current death penalty law “as it is.” But, as explained below, other questionnaire answers by these five women indicated that even if they were not opposed to the death penalty in the abstract, they would personally be reluctant to vote for it. Question 52 on the jury questionnaire asked: “Given the fact that you have two options available to you, can you see yourself, in an appropriate case, choosing the death penalty?” Prospective Juror Jeanette A. answered “no.” Question 51 asked whether, in an appropriate case, life imprisonment without the possibility of parole, rather than death, would be an option. Her answer was “yes.” As to Prospective Juror Janet H., she wrote “I don’t know!” in answer to question 52, and “yes” to question 51. These answers strongly suggest that both women would be reluctant to vote for death. Prospective Juror Carol S. wrote on her questionnaire, “I’d be loath to vote for the death penalty,” explaining, “I believe that violence leads to more violence, killing to more killing.” She held “very strong” feelings on the *1322 death penalty. Although elsewhere in her questionnaire she voiced a willingness to vote for death “if the circumstances called for it,” it is likely that the prosecutor viewed these answers as indicative of a strong reluctance to vote for death. Prospective Juror Linda R. wrote on the questionnaire: “I don’t particularly like the death penalty, but I understand that in certain circumstances it is appropriate.” Explaining her dislike for the death penalty, she wrote: “No human has the right to decide life or death as does God.” Based on these comments, the prosecutor could reasonably conclude that Linda R. would have a problem voting for death. Prospective Juror Rosemarie K.’s answers to the questionnaire suggest that she had previously been opposed to the death penalty, but that she now believed it was appropriate if the offense was “horrendous,” such as the brutal murder of a child. The prosecutor could have reasonably concluded from this answer that for this prospective juror, this case would not be sufficiently “horrendous” to justify the death penalty because the victims were adults. Thus, with respect to the 12 prospective jurors discussed above, their expressed reluctance to impose the death penalty provides a proper and sex-neutral basis for the prosecutor’s peremptory challenges. Five other women challenged by the prosecutor had extensive professional or personal involvement in counseling or psychology. Sally M.-P. was a licensed clinical social worker (LCSW) who had a masters degree in social work and was considering pursuit of a Ph.D. in psychology; she had been a therapist for seven years. Gloria B., too, was an LCSW with a master’s degree in social work; she supervised a sexual trauma team that included psychologists, social workers, and a psychiatrist. Carolyn S. had a master’s degree in “counseling psychology” and had been a vocational rehabilitation counselor. Angela G. had recently graduated from college with a degree in psychobiology and planned to attend medical school. And Linda D. had a bachelor’s degree in psychology and was living with a biofeedback therapist who had an “MFC license” and had worked as a counselor. Psychiatric testimony usually plays a major role for the defense at the penalty phase of a capital case. Here, codefendant Lee relied on such testimony at both the guilt and the penalty phase of this case. In excusing prospective jurors with a strong background in counseling or psychology, the prosecutor may well have been concerned that they would give greater credence to such testimony. Two other women excused by the prosecutor were closely associated with persons likely to be unsympathetic to the prosecution. Prospective Juror *1323 Rose P. was a former member of the American Civil Liberties Union and had twice married men who had served prison sentences, one for murder; she herself had twice been arrested (though not convicted). Juror Erma R.’s son was a criminal defense attorney previously employed by the Los Angeles County Public Defender’s Office, which represented defendant in this case. The above discussion accounts for 19 out of the 20 women challenged by the prosecutor. The prosecutor’s reasons for excusing the 20th woman are not clear from the record. Nevertheless, the presence of sex-neutral reasons for 19 of the 20 peremptory challenges against women suggests that the challenges were based on reasons other than the sex of the prospective jurors. These reasons, rather than the “pattern of excusáis and acceptances” relied on by the majority (maj. opn., ante, at p. 1294), forms the basis for my conclusion that the trial court properly denied defendant’s Batson-Wheeler motion asserting impermissible bias against women as a group. Indeed, the jury convicted both defendants as charged, but it was unable to reach a verdict on penalty as to codefendant Lee. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9797965. Public record. Not legal advice.