People v. Wheeler

*288 RICHARDSON, J.

I respectfully dissent.

In my opinion when a lawyer during the course of a civil or criminal trial exercises a peremptory challenge he is not accountable for his decision to anyone. This has been axiomatic for many years both in the United States generally and in California. As to criminal cases the rule is cemented in Penal Code section 1069 which provides: “A peremptory challenge can be taken by either party and may be oral. It is an objection to a juror for which no reason need be given, but upon which the court must exclude him.” (Italics added.) The majority now changes this rule and, for the first time, requires a justification, excuse, or explanation for use of a peremptory challenge.

The majority accepting, as it must, the statutory definition of a peremptory challenge contained in section 1069 nonetheless holds: “It is true that the statute defines such a challenge as one for which ‘no reason need be given’ (id., § 1069) but it does not follow therefrom that it is an objection for which no reason need exist.” (Ante, p. 274.) This suggests that a reason must exist but need not be “publicly stated.” (Ante, p. 275.) This rather startling conclusion requires considerable reflection.

Ostensibly, the new principles which the majority adopts are necessary to “vindicate” a defendant’s right to an impartial jury. I believe the concepts advanced by the majority are wholly antithetic to procedural rules which governed civil and criminal trials for many years. Further, rather than guaranteeing an impartial trial, I think the only guarantee is that the present lengthy process of voir dire will be rendered lengthier still. In my opinion, the majority position is wrong in concept and will prove illusory and unworkable in application.

Preliminarily, two important features of the majority’s holding should be stressed and their implications fully understood in evaluating both its wisdom and its reach. First, it applies in criminal cases to both prosecution and defense. (Ante, p. 276.) Second, although the majority limits application of the new principles to criminal cases and leaves “to another day” a determination of whether the new rules apply to civil cases, the “functions” of a jury, which the majority treats as controlling, seem remarkably similar in civil and criminal cases, leading me to conclude that, given the issue in a civil context, the majority will reach the same result. This probability underscores the seriousness of the sweeping procedural changes today worked by the majority.

*289 In my opinion, any analysis of the issue should begin, not end, with a consideration of the single most persuasive, if not controlling, case on the point, namely, Swain v. Alabama (1964) 380 U.S. 202 [ 13 L.Ed.2d 759 , 85 S.Ct. 824 ]. In Swain the United States Supreme Court dealt squarely with the use of peremptory challenges to eliminate black jurors from a petit jury which was to try a black defendant. In its affirmance of the underlying conviction the high court stressed the importance of the use of the peremptory challenge in impanelling impartial jurors while describing the practical considerations which affect its exercise.

Referring to the peremptory challenge, the Swain court said: “The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise. In this way the peremptory satisfies the rule that ‘to perform its high function. in the best way “justice must satisfy the appearance of justice.” ’ [Citation omitted.]” (P. 219 [13 L.Ed.2d p. 772].) . . . “The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control [Citations omitted.] While challenges for cause permit rejection of jurors On a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. [Citation omitted.]... [A peremptory challenge] is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be. . . . Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.” (Pp. 220-221 [13 L.Ed.2d pp. 772-773], italics added.)

By its decision in Swain the United States Supreme Court recognized that in the appropriate circumstances the race as well as religion, sex, nationality, occupation, or affiliation of prospective jurors are trial-related considerations which may constitute proper reasons for the exercise of the peremptory challenge.

*290 The importance of Swain as authority cannot be disputed. It has been said that “In all of the cases in which the courts have considered the constitutionality of the prosecution’s use of the peremptory challenge in a single case against blacks, the courts have reached the same conclusion as the Supreme Court in the Swain decision, . . .” (Annot. (1977) 79 A.L.R.3d 17 at p. 19 .) So far as I can learn, the majority’s new rules find no judicial acceptance anywhere.

We ourselves have consistently followed Swain and have denied hearing in several recent cases raising the precise present contention. (See People v. Allums (1975) 47 Cal.App.3d 654, 663-664 [ 121 Cal.Rptr. 62 ], hg. den., cert. den., 423 U.S. 934 [ 46 L.Ed.2d 266 , 96 S.Ct. 291 ] [defendant must show systematic exclusion of blacks “over a period of time”]; In re Wells (1971) 20 Cal.App.3d 640, 647-648 [ 98 Cal.Rptr. 1 ], hg. den. [same].) Moreover, the majority errs in suggesting that the issue is one of first impression. Indeed, we have quoted from Swain with approval in rejecting a similar contention regarding the prosecutor’s use of peremptory challenges to exclude jurors with negative views concerning the death penalty. (People v. Floyd (1970) 1 Cal.3d 694, 727 [ 83 Cal.Rptr. 608 , 464 P.2d 64 ].)

In Floyd , we carefully explained that “we cannot engage in conjecture regarding the prosecutor’s reasons for exercising some of his peremptory challenges .... Instead, we must assume ‘that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged.’ [Citing Swain.] Swain held that the prosecutor could properly exclude all Negroes from a particular jury, regardless of the factual basis for his belief that such jurors, either as individuals or as a class, might be biased in the particular case to be tried. As the court stated, ‘In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an. examination of the prosecutor’s reasons for the exercise of his challenges in any given case.’ [Citing Swain.]” (People v. Floyd, supra, at pp. 727-728 , italics added.)

The majority now insists that the petit jury exhibit the same “representative” characteristics which heretofore have been required exclusively of the jury pool or jury venire. This is a totally novel proposition and makes for unwieldy, unworkable results. Without exception all of the authorities relied upon by the majority involve the compositions of grand juries or jury venires. The salutary principles *291 expressed in these cases are unhelpful in the consideration of petit juries. Nonetheless, the majority mandates that the representation required of the jury venire from which the trial jury is chosen also be applied to those persons actually seated. The majority reasoning relies for support on cases such as Taylor v. Louisiana (1975) 419 U.S. 522 [ 42 L.Ed.2d 690 , 95 S.Ct. 692 ], The express language of Taylor repudiates such an equation. “It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, [citations omitted] but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” (P. 538 [42 L.Ed.2d pp. 702-703].)

I suggest that the foregoing Taylor rule is the only feasible rule, given the element of chance which necessarily, and properly, is injected in the process through use of the jury wheel. For although the jury panel sitting in the courtroom may reflect to perfection the economic, social, occupational, sexual, religious, and cultural community from which it is drawn, once the jury wheel is turned and the first names are drawn the situation is changed. Fate takes a hand. The first 12 names drawn may be all men, or all women, all black or all white, all from the poor, or from the wealthy class. The exercise of the peremptory challenge by both sides is directed to 12 persons who may not be, at any given time, “representative” of either the community or the venire. It is not the true function of peremptories to “restore” any balance, but rather, to the extent humanly possible to attain impartiality. Thus the true rule and goal should be that while the jury venire, or pool, or reservoir must be “representative” the trial jurors must be “impartial.”

Henceforward, under the majority’s holding any peremptory challenge “on the ground of group bias” will be deemed to violate the right to a jury trial under the California Constitution because it does not permit “a jury drawn from a representative cross-section of the community.” (Ante, p. 277.) I find no legal precedent for such a proposition. In any event, the majority now insists “that a party is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits.” (Ante, p. 277, italics added.)

*292 The majority repeatedly refuses to recognize the established distinction between the jury venire and the petit jury. It attempts to render synonymous the terms “representative” and “impartial” insisting that the true guarantor of impartiality is a mixing of representative groups “so that the respective biases of their members, to the extent they are antagonistic, will tend to cancel each other out.” (Ante, pp. 266-267.) I totally, and fundamentally, disagree that this is either the function or the goal of the jury selection process.

Dissension, to the extent that it reflects only a clash of the “respective biases” of individual jurors, is no guarantee whatever of impartiality. Impartiality is not assured by balancing “biases.” Quite the opposite. Such disagreement may indicate that individual prejudices so control the jurors that they are incapable of viewing the issues before them dispassionately. Such disharmony may make a unanimous verdict an impossibility from the outset thus rendering the criminal trial a futile exercise. Surely, one of the specific purposes of voir dire is to allow counsel to identify those in the venire whose biases hold such sway over their thinking and to eliminate them from the jury.

In Ginger, Jury Selection in Criminal Trials (1975), one informed source is noted at page 281: “The real and realistic aim of our jury selection method is not to achieve the impossible complete impartiality but father to minimize the range of predispositions that may influence the jury’s verdict. Conceptually, we can rank the members of a juiy venire in a spectrum that ranges from those most predisposed toward the plaintiff to those most predisposed toward the defendant. The purpose of the voir dire proceedings is to eliminate from the jury that will sit on the case the extreme positions on both sides of the spectrum.”

A heavy responsibility rests upon a trial lawyer in a criminal case, whether prosecution or defense. The factors which prompt counsel to exercise a peremptory challenge may be very subtle. The lawyer’s antenna is alert for signals. The prospective juror’s hesitancy in answer, the tone of the voice, the nature of the response, whether warm or metallic, a stare, a set of the jaw, a partial smile or frown, may be revealing to a seasoned lawyer. These physical signs will not appear in a cold record.

Counsel, knowing the issues and witnesses, the probable evidentiary flow and interplay of emotion, and the strength and weaknesses of his case and that of his opponent, may believe that his client may get more or *293 less fair and impartial treatment from members of a particular economic class, social group or age classification. His judgment may, for example, tell him that those of a particular religious persuasion will be attracted to or offended by a witness or particular piece of evidence. He may not be able to justify or explain his own strong instincts. His opponent objects on the ground that the challenge stems from “group bias.” The judge, as directed by the majority, must question counsel and ask him to explain, at the cost of a wasted jury venire if he is unsuccessful, with attendant expense and delay for litigants, witnesses, and court personnel.

The majority, commendably, recognizes that the real difficulty with its formulation is reached when it considers the matter of the “remedy.” These difficulties inhere in requiring judges at the voir dire phase of trial to examine the validity of the subjective motives of counsel in exercising peremptory challenges. With due respect, I suggest that what the majority proposes as a simple straightforward test will, in fact, become all too frequently a time consuming inquiry leading the court, counsel, and litigants into procedural quicksand and a quagmire of questionable efficacy. The majority requires that the challenger’s opponent “show a strong likelihood” that group associations alone are the basis of the complained of challenge. The court must then determine whether a “reasonable inference” arises that the challenges are improperly motivated. If a “prima facie” case has been made, the “burden” shifts to the other side to show that the challenges were exercised on grounds “reasonably relevant” to the particular case.

I believe the foregoing proposed test is so vague as to constitute no standard at all. Could not a prosecutor, for example, carry his burden in this regard merely by declaring that his challenges were based upon such considerations as the economic or social (as opposed to racial) backgrounds of those challenged, or some subjective, unprovable suspicion of sympathy for the defendant?

Furthermore, the majority suggests that the foregoing tests may be met by a showing that “most or all of the members of the identified group” (ante, p. 280) have been challenged or that a “disproportionate number” of peremptory challenges have been directed at the group, or that counsel’s voir dire of the challenged group has been “desultoiy.” The mere recitation of the following three examples illustrates the difficult burdens which the majority has imposed. If the victim in a robbery case is elderly and the contention is that the young have been systematically challenged, a statistical age profile of the venire would have to be compiled and *294 preserved to determine whether “most” of the number had been excused. Furthermore, this will have to be done “after the event,” for previously challenged prospective jurors will have been excused and long since will have left the courtroom. This will require a continued monitoring and recording of the “group” composition of the panel present and prospective, all before the group in question has been even identified. If the group allegedly being excluded in a white-collar crime prosecution is the poor, would not an income or wealth comparison presumably have to be available to the judge in order to determine if other venire members of that group had been subjected to more vigorous or extended voir dire questioning. Similarly, in a sex case if the contention is that women or members of particular religious bodies have been subject to peremptory challenge, would not the sexual or religious composition of the venire have to be recorded or developed for the judge to decide the issue?

The majority’s rules place the court in a difficult, indeed precarious, position. It is a fundamental principle of our trial system that it is the litigants who pick, and must be satisfied with, the jury. The court can rarely, have the intimate knowledge of the case possessed by the parties and a jury with which the court is happy may not be a jury with which either the district attorney or the defense can reasonably be comfortable or satisfied.

In the event either prosecutor or defense counsel has improperly exercised a peremptory challenge, the jurors theretofore chosen are to be dismissed along with the entire remaining venire. The majority deems the foregoing a sufficient deterrent to “the abuses of the peremptory challenge,” adding, “if experience should prove otherwise it will be time enough then to consider alternative penalties.” (Ante, p. 282.) The ominous overtones of this warning will not be lost on counsel, both prosecution and defense.

Unlike almost every other area of the criminal justice system in the matter of jury selection there is no inherent or gross disparity between the power and the resources of the People and those of the defense. Each side has an equal opportunity to challenge and the end result is the most satisfactory jury that can be drawn from the venire, for it is not only the fact but the appearance of prejudice which may disqualify a juror. It is the probable rather than the provable fact of prejudice which impairs the legitimacy of the jury. In the matter before us there is no suggestion that the jury was not impartial. On the contrary, the record indicates that defendants did not exhaust their peremptory challenges. Although the *295 defense exercise of peremptory challenges could not replace any jurors theretofore challenged by the prosecution, failure to exhaust their own peremptories suggests to me defense satisfaction with the jury as then comprised. There remained unused several opportunities by which the composition of the jury could have been altered by the defense.

There is a clear salutary effect which peremptory challenges have in assuring an impartial petit jury. The challenge is an important tool for trial lawyers who, bearing heavy responsibilities to their clients, should remain free and unfettered to do their essential job. The legal precedents, notably Swain , are compelling. The practical difficulties in administering the majority’s scheme are complex.

I would affirm the judgment.

Clark, J., concurred.

The petitions of all the parties for a rehearing were denied October 25, 1978. Clark, J., and Richardson, J., were of the opinion that the respondent’s petition should be granted.