Opposition Brief — Pagel v. California

Supreme Court, U.S.

FILED

fd MAR 81 1987

o) +, JOSEPH F. SPANIOL, JR,

No. 86-1085 | - CLERK

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1986

HERBERT PAGEL,

Petitioner,

VS.

STATE OF CALIFORNIA,

Respondent.

(To the Appellate Department of the Superior Court

of the State of California for the County of Los

Angeles, No. CR A 23539)

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

JAMES K. HAHN,

City Attorney of Los Angeles

WILLIAM N. STERLING,

Deputy City Attorney

LAURENCE WAYNE MOONEY,

Deputy City Attorney

(Counsel of Record)

1600 City Hall East ve

200 North Main Street

Los Angeles, California 90012

Telephone: (213) 485-5483

Attorneys for Respondent

State of California

Bowne of Los Angeles, Inc., Law Printers. (213) BOWNE CO

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QUESTION PRESENTED

Did the state trial court violate petitioner’s Sixth

Amendment right to an impartial jury trial or deny him

due process or equal protection of the laws as guaranteed

by the Fourteenth Amendment by preventing him from

excusing prospective jurors solely on the basis of their

race?

il

TABLE OF CONTENTS

QUST ION PI ee ob i ek ces cc nacccsaees

TATE OF AUTRE EUs oon cc ccc i ccc cence

CONSTITUTIONAL PROVISIONS INVOLVED..

SLArmeem ss OF Tile CADE «oo. cc cies cecsess

BE as 6 nd Ga ahi ena eee

A. The Constitutional Issues Raised in the Petition

for Certiorari Were Neither Raised Nor

Addressed in the State Courts ..............

Petitioner Posed No Constitutional Objection to

the Makeup of the Jury Which Heard the Evi-

dence and Rendered the Verdict.............

The Appellate Department’s Holding Restrict-

ing Petitioner’s Peremptory Challenges Is Con-

sistent with Federal and State Authority on that

eS ey er at eee

The State Trial Court Restriction Upon the

Exercise of Petitioner’s Peremptory Challenges

Was Not Violative of the Sixth or Fourteenth

P| Pee TT re ey ee ee

1. States Need Not Allow Defense Peremptory

Challenges. Once a Sate Permits Such Chal-

lenges, It May Restrict Them in any Reason-

Rit TEE |. 6 5s 4k te ees

2. Petitioner Had No Constitutional Right to a

Petit Jury Panel from which Blacks Were

Exeluded Solely on the Basis of Race.....

a

iv

10

ili

Page

3. The State of California Was Entitled to a

Fair Trial before Impartial Jurors ........ 19

4. All Citizens, Regardless of Race, Must Be

Allowed to Participate in Jury Deliberations

EERE EI er Pere 21

I 6 cc induce kcae <a vedvensrecessnae 23

iv

TABLE OF AUTHORITIES

United States Supreme Court

Page

Apodaca v. Oregon, 406 U.S. 404, 32 L.Ed.2d 152,

Se EEE Secs cdsvneisadvacen ae 13, 14, 18

Ballard v. United States, 329 U.S. 187, 91 L.Ed. 181,

ee I oo ko ccs b's soeaee waeewee ws 22

Batson v. Kentucky, 476 U.S. —, 90 L.Ed.2d 69, 106

t¢ By) Fs} Gere 4, 5, 7, 8, 12, 17, 18, 19, 21

Beck v. Washington, 369 U.S. 541, 8 L.Ed.2d 98, 82

i he okvabeeeadeeensea 4

Brown v. North Carolina, 479 U.S. —, 938 L.Ed.2d

ee ee SD Si vine vanededexanns 22

Cardinale v. Lewisiana, 394 U.S. 437, 22 L.Ed.2d

— 8 oe 6S. ire ree 4

Douglas v. California, 372 U.S. 353, 9 L.Ed.2d 811,

go | paar wre eee ee FRR ee 13

Frazier v. United States, 335 U.S. 497, 93 L.Ed. 187,

es te ae Siw bcd ce conan cue céedes 6

Glasser v. United States, 315 U.S. 60, 86 L.Ed. 680,

a I ioe bb sccebvewecasoeasuss 21

Hayes v. Missouri, 120 U.S. 68, 30 L.Ed. 578, 7 S.Ct.

Oe Pe ie is Cinis iwaseseeaecuasenes 6, 19

Johnson v. Louisiana, 406 U.S. 356, 32 L.Ed.2d 152,

Oe ar I UD ok wdc cc ccwsasevannenes 7, 13, 14

Marshall v. United States, 414 U.S. 417, 38 L.Ed.2d

ee te I I OOD oo ks cin kvacsivdensas 13

McCray v. New York, 461 U.S. 961, 77 L.Ed.2d

Ss Se ts Ue CRUE). on a ccc ccesesse 7

Peters v. Kiff, 407 U.S. 493, 33 L.Ed.2d 83, 92 S.Ct.

8 | Ber pror ere reer rrr yea 22

v

TABLE OF AUTHORITIES CITED

UNITED STATES SUPREME COURT

Page

Pointer v. United States, 151 U.S. 396, 38 L.Ed. 208,

eT a | rr rere reer ores ree 6

Ross v. Moffitt, 417 U.S. 600, 41 L.Ed.2d 341, 94

ee TER <p kneihksxVNAGGRaE OSES > 13

Shelley v. Kraemer, 334 U.S. 1, 92 L.Ed. 1161, 68

A ee OE hbo nob owh eds ereennnneees 23

Singer v. United States, 380 U.S. 24, 13 L.Ed.2d 630,

9 53 oe Et) Ree 19, 20

Stilson v. United States, 250 U.S. 583, 63 L.Ed. 1154,

" 5 23 SS e eenCna ret pba reer ete iar 10

Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed.

Se 69s 5k eas ob nwo hae an a aC 21

Stroud v. United States, 251 U.S. 15, 64 L.Ed. 103,

OP ls eh sis as sa ss 6

Swain v. Alabama, 380 U.S. 202, 13 L.Ed.2d 759, 85

ER es Se hens ck bode cued Uae ee weeks 10, 22

Taylor v. Louisiana, 419 U.S. 522, 42 L.Ed.2d 690,

ee Se FS Re re meee ree 22

Thiel v. Southern Pacific Co., 328 U.S. 217, 90 L.Ed.

1951, GE-Ok Be Sees bik 0 as eens Beds; 22

United States v. Marchant, 25 U.S. 480, 6 L.Ed. 700

4 4 See re tere eres rer er yee 10

United States v. Wood, 299 U.S. 123, 81 L.Ed. 78, 57

Ee Bee COE ve kcsccncessabakeedseeasae 10

Vasquez v. Hillery, 474 U.S. —, 88 L.Ed.2d 598, 106

i Me OD i 6 bine 5a woo ce eee 22

Williams v. Florida, 399 U.S. 78, 26 L.Ed.2d 446, 90

DAA, TRO CEOS os vec ccc edinenwavnnnaes 11,17, 18

vi

TABLE OF AUTHORITIES CITED

United States Court of Appeals

Page

Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985) ..... 8, 20

State Courts

Commonwealth v. DiMatteo, 12 Mass.App. 547, 427

EE Te REE. bie 'conccdeaddaceseieesex 8

Commonwealth v. Reid, 384 Mass. 247, 424 N.E.2d

Ge GD save ¥en acucuesesdeveksaueeses 8

Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d

Ge ST 6a Ne cee eae 0 4ne ke see be edeneees 8,9

People v. Pagel, 186 Cal.App.3d Supp. 1, 232

ee ee errr reer ee 4,17

People v. Thompson, 79 App.Div.2d 87, 435

eg PPE eTEEYNTYEPErr ry ere 8

People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890,

583 P.2d 748 (1978) .......... 2, 3, 5, 8, 15, 16, 17, 18

Riley v. State, 496 A.2d 997 (Del.Supr. 1985) .... 8

State v. Gilmore, 103 N.J. 508, 511 A.2d 1150

CRORE ois schon d Bice Were c es Paw ek Cee eV ete 6% 8

State v. Neil, 457 So.2d 481 (Fla. 1984) ......... 8

Constitutional Provisions

Sixth Amendment..... oc cececeeccccccceees 4,9,11,12

Fourteenth Amendment.................. 1, 4, 9, 12, 23

California Constitution, Art. 1, section 16 ....... 16

vii

TABLE OF AUTHORITIES CITED

Statutes

California Penal Code

DU bkcceeccndaWhsdheedecdssesdsecasece’

Onc 's vice cc ecthbeebesdeepesteseveceses

Court Rules

Rule 17.1(b), United States Supreme Court Rules

No}

EU SM tee

No. 86-1085

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1986

HERBERT PAGEL,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

(To the Appellate Department of the Superior Court

of the State of California for the County of Los

Angeles, No. CR A 23539)

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

CONSTITUTIONAL PROVISIONS INVOLVED

In addition to those provisions cited by petitioner

(Petition 4), the following federal constitutional provi-

sion is involved in this proceeding:

The Fourteenth Amendment to the United States Con-

stitution, to the extent that it provides:

“No state shall... deprive any person of life, liberty

or property, without due process of law.”

STATEMENT OF THE CASE

Facts and proceedings additional to those recited in

the Petition are necessary for consideration of the issues

raised by petitioner.

2

Petitioner states that the trial court “invited” the

deputy city attorney to make a motion to dismiss the Jury

panel. (Petition 6.) Immediately after defense counsel

Larry Mullins excused prospective juror Mitchell, Deputy

City Attorney Tso asked to approach the bench. Only then

did the court mention People v. Wheeler, 22 Cal.3d 258,

148 Cal.Rptr. 890, 583 P.2d 748 (1978), and concur in the

prosecutor’s expressed concern over a possible misuse of

peremptory challenges under that ease. (RT 12/11-

12/12/84, at p. 111:5-27.)

In the discussion between court and counsel which

followed, Mr. Mullins made no assertion that the case of

People v. Wheeler did not apply to restrict peremptory

challenges by criminal defendants. Rather, he simply

proffered justifications for challenging the three jurors,

even though the trial judge stated specifically that

“Tb]oth sides must comply with the mandate of People v.

Wheeler.” (RT 12/11-12/12/84, at pp. 112-114.) When

Ms. Tso renewed her objection to petitioner’s excusal of

the potential jurors the next morning, Mr. Mullins ex-

plained his reasons for dismissing the three, but again did

not contend that the application of Wheeler to his chal-

lenges violated any federal constitutional provisions. (RT

12/11-12/12/84, at pp. 143, 146-150.)

The trial judge, prior to making his order dismissing

the jurors and quashing the venire, specifically stated the

legal and factual grounds for his determination that

petitioner’s counsel had excused jurors based on im-

proper grounds. The court stated that

“Onee the People have shown a prima facie case of

noncompliance with the dictates of Wheeler|[,| ... the

burden shifts to the defense, [and] the defense must

present satisfactory evidence to this Court that the

peremptories were exercised for specific bias. That

has not been the case here.

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“With regard to the motion before the Court, the

Court finds that the burden of justification that has

shifted to the defense has not been sustained as to all

of the questioned challenges, particularly as applied

to one of the jurors, Mr. Street.

“Therefore, the validity of the presumptions has

been effectively and satisfactorily rebutted.”

The court relied for its ruling on People v. Wheeler and a

series of rulings by California Courts of Appeal. (RT

12/11-12/12/84, at pp. 153-154.)

On the day following the dismissal of the selected

jurors and the quashing of the remaining venire, the cause

was transferred to another division of the Los Angeles

Municipal Court for trial. (Docket entry for 12/13/84.)

During the next two court days, the parties selected

jurors from a new venire of prospective jurors. Petitioner

was still represented by Mr. Mullins. On December 17,

petitioner accepted twelve jurors and one alternate. No

objection appears on the record that petitioner’s right to

exercise peremptory challenges had been abridged either

by the quashing of the first jury venire or by the second

jury selection process. (Docket entries for 12/14 and

12/17/84.) Ultimately, the previously accepted alternate

sat as a juror. The jury, after a three-day trial, found

petitioner guilty as charged. (Docket entry of 12/19/84.)

ARGUMENT

A. The Constitutional Issues Raised in the Petition for

Certiorari Were Neither Presented Nor Addressed

in the State Courts

Petitioner states that the question presented to this

Honorable Court by his petition is whether defense coun-

sel’s use of peremptory challenges may be restricted to

the same extent as the prosecution’s challenges were

4

limited in Batson v. Kentucky, 476 U.S. ——, 90 L.Ed.2d

69, 106 S.Ct. 1712 (1986). (Petition 2.) Respondent has

posed the question differently. Regardless of the form in

which the federal issue is presented, however, the fact

remains that petitioner never specifically made the elaim

in the state court, and the Appellate Department of the

Los Angeles Superior Court did not address any federal

question in its Opinion. Therefore, the jurisdiction of this

Court has been improperly invoked, and certiorari should

be denied.

In Cardinale v. Louisiana, 394 U.S. 437, 438, 22

L.Ed.2d 398, 400, 89 S.Ct. 1161 (1969), this Court deter-

mined that federal issues not raised and decided in the

state courts could not be addressed by the United States

Supreme Court. (See also, Beck v. Washington, 369 U.S.

541, 550, 8 L.Ed.2d 98, 107-109, 82 S.Ct. 955 (1962).) The

Statement of the Case petitioner supplies this Court and

the additional facts in respondent’s own statement, supra,

reveal that at no time did petitioner’s trial counsel object

to the trial court placing constraints upon his peremptory

challenges. He neither cited to the federal constitutional

guarantees of an impartial jury trial, nor to due process

or equal protection of the laws. Moreover, he did not enter

an objection to the proceedings upon the ground that

petitioner now takes: that the defense, because of its

“time-honored right to unfettered peremptory chal-

lenges” (Petition 16), should not be subject to the same

constraints as the prosecution with respect to challenges

based upon race.

Furthermore, nothing in the Appellate Department’s

Opinion (Petition Appendix A, People v. Pagel, 186

Cal.App.3d Supp. 1, 232 Cal.Rptr. 104 (1986)) makes

reference to any claim by petitioner before that court that

the Sixth and Fourteenth Amendments precluded the

state trial court from dismissing the jury panel in this

‘*

a

+)

ease. In fact, only passing reference appears to even

Batson v. Kentucky, supra.' Nowhere in the Opinion,

however, does the state appellate court decide a federal

question based on Batson. Rather, the Opinion determines

that as a matter of state law the prosecution may be

allowed to question a defendant’s removal of black jurors

without reason. This is true, even though the Appellate

Department’s Opinion was filed September 25, 1986, al-

most five months after Batson v. Kentucky was decided by

this Court on April 30, 1986. On this record, this Honora-

ble Court is without jurisdiction to grant the Petition.

B. Petitioner Posed No Constitutional Objection to

the Makeup of the Jury Which Heard the Evidence

and Rendered the Verdict

Petitioner does not assert that he was restricted from

exercising any peremptory challenges during the jury

selection process of December 14 and 17, 1984, which

immediately preceded his trial. Nowhere in that proce-

dure does he claim there was a denial of his statutory

right to exeuse a juror without cause. In fact, in this

second jury selection process petitioner accepted the

regular and alternate jurors for his trial after a lengthy

voir dire. That jury found appellant guilty, and it is the

judgment following that conviction that petitioner ap-

pealed. Petitioner may not apply to this Court for relief

from asserted errors in the initial jury selection proce-

"Batson was cited in footnote 1 of the Opinion (Petition A-6 to A-7,

186 Cal.App.3d at Supp. 6, 232 Cal.Rptr. at 107) to suggest that this

Court, if it were to decide whether the defense was subject to the

restrictions announced in that case and in People v. Wheeler, supra,

would consider wide-ranging public policy issues such as the commu-

nity effect of racially-based exclusion of jurors. This generalized

reference to the Batson case clearly does not constitute a decision on

the federal questions petitioner now presents.

6

dure. This is true because petitioner was tried in an error-

free trial by a jury to which he raised no objection.

In Hayes v. Missouri, 120 U.S. 68, 30 L.Ed. 578, 4 S.Ct.

350 (1887), the plaintiff in error had been convicted of

murder in a state court in the city of St. Louis. He

asserted error in this Court, claiming that his right to

equal protection had been denied by a Missouri law which

at that time allowed the prosecutor fifteen peremptory

challenges in cities exceeding 100,000 inhabitants, but

only eight such challenges elsewhere in the state. In

Hayes’ trial, the state had used all 15 challenges permit-

ted to it. This Court affirmed. In so doing, it stated:

“In this country the power of the Legislature of a

State to prescribe the number of peremptory chal-

lenges is limited only by the necessity of having an

impartial jury. ...The aceused cannot complain if he

is still tried by an impartial jury. He can demand

nothing more....In this case, it is not even sug-

gested that the jury by which the accused was tried

was not a competent and impartial one.” (Jd., 120

U.S. at 71, 30 L.Ed. at 580, 7 S.Ct. 350.)

(See also Frazier v. United States, 335 U.S. 497, 504, 508,

93 L.Ed. 187, 194-196, 69 S.Ct. 201 (1948); Stroud v.

United States, 251 U.S. 15, 20-21, 64 L.Ed. 103, 111, 40

S.Ct. 50 (1919); Pointer v. United States, 151 U.S. 396,

412, 38 L.Ed. 208, 215, 14 S.Ct. 410 (1894).)

On the basis of the authority above and since no proper

objection was made to the constitution of the Jury panel

that actually tried him, petitioner cannot now complain of

any error of the trial court during the original jury

selection process which that court terminated by a

quashal of the petit jury venire.

7

C. The Appellate Department’s Holding Restricting

Petitioner's Peremptory Challenges Is -Consistent

with Federal and State Authority on that Develop-

ing Issue

In his opinion respecting the denial of the petitions for

writs of certiorari in McCray v. New York, 461 U.S. 961, 77

L.Ed.2d 1322, 103 S.Ct. 2488 (1983), Justice Stevens,

joined by Justices Powell and Blackmun, stated that the

issue of whether the Constitution prohibits a prosecutor’s

use of peremptory challenges to exclude from a jury

members of a particular group was not ready to be

addressed by this Court. Justice Stevens pointed to the

absence of the conflict of decision within the federal

system and the developing litigation on the issue in the

state courts. He concluded:

“In my judgment it is a sound exercise of discretion

for the Court to allow the various States to serve as

laboratories in which the issue receives further study

before it is addressed by this Court.” (Jd., 461 U.S.

961, 77 L.Ed.2d at 1323, 103 S.Ct. 2438.)

The issue was, of course, finally addressed in Batson v.

Kentucky after the Kentucky Supreme Court curtly dis-

posed of the authority developing against a prosecutor's

use of race-based peremptory challenges “in a single

paragraph.” (Batson v. Kentucky, supra, 476 U.S. at

90 L.Ed.2d at 79, 106 S.Ct. 1712.)

9

Respondent submits that the issue of the appropriate

restriction of a criminal defendant’s peremptory chal-

lenges presented in this case stands as the “Batson” issue

did in 1983, 1.e., further treatment of the issue in the

nation’s lower courts is warranted. (See also Johnson v.

Louisiana, 406 U.S. 356, 376, 32 L.Ed.2d 152, 167-168, 92

S.Ct. 1620 (1972) (Powell, J., coneurring).) In the first

place, as Chief Justice Burger noted in his dissent in

8

Batson v. Kentucky, which was joined by Justice

Rehnquist:

“ ‘Every jurisdiction which has spoken to the matter,

and prohibited prosecution case-specifie peremptory

challenges on the basis of cognizable group affilia-

tion, has held that the defense must likewise be so

prohibited.’ [Citation.]” (Batson v. Kentucky, supra,

476 U.S. at ___, fn. 6, 90 L.Ed.2d at 107, 106 S.Ct.

1712.)

Indeed, the federal and state courts are united on the

question. (Booker v. Jabe, 775 F.2d 762, 772 (6th Cir.

1985), vacated and remanded for reconsideration,

U.S. ___, 92 L.Ed.2d 705, 106 S.Ct. 3289 (1986), rein-

stated on remand, 801 F.2d 871 (1986); People v. Wheeler,

supra, 22 Cal.3d at 282, fn. 29, 148 Cal.Rptr. at 906-907,

583 P.2d 748; State v. Neil, 457 So.2d 481, 487 (Fla. 1984);

Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499,

517, n. 35 (1979); Commonwealth v. Reid, 384 Mass. 247,

424 N.E.2d 495, 498-501 (1981); Commonwealth v. DiMat-

teo, 12 Mass.App. 547, 427 N.E.2d 754, 757-758 (1981).)

Moreover, at least three other state jurisdictions, while

not specifically deciding the issue, have suggested that

the defense is also subject to restrictions on challenges

based on race. (Riley v. State, 496 A.2d 997, 1011

(Del.Supr. 1985), cert. den. sub nom. Riley v. Delaware,

____ U.S. ___, 92 L.Ed.2d 743, 105 S.Ct. 3339 (1986)

[referring to “a party’s exercise of peremptory chal-

lenges” ], State v. Gilmore, 103 N.J. 508, 511 A.2d 1150,

1163, n. 6 (1986) [realizing a distinction between defense

challenges of minority and majority racial groups]; /cple

v. Thompson, 79 App.Div.2d 87, 435 N.Y.S.2d 739, 752

(1981) [speaking of the availability of the peremptory to

“a party’’].)

The opinions and dicta of the state and federal courts

are consistent. In addition, they are for the most part

9

founded on the principle that the government as well as

the defendant in a criminal ease is entitled to a fair trial.

(See, e.g., Commonwealth v. Soares, supra, 377 Mass. 461,

387 N.E.2d 499.) As respondent demonstrates in its

remaining argument, that basis, in addition to others,

justifies the restriction placed on petitioner’s peremptory

challenges in this case. Therefore, there appears no need

for this Court to review the decision of the Appellate

Department, since it is “in line” with the carefully consid-

ered case law which has developed nationwide on the

issue. (Cf. Rule 17.1(b), United States Supreme Court

Rules.)

D. The State Trial Court Restriction Upon the Exer-

cise of Petitioner's Peremptory Challenges Was Not

Violative of the Sixth or Fourteenth Amendments

Petitioner asserts a “time-honored” right to unallayed

peremptory challenges and contends that his Sixth

Amendment right to an impartial jury trial and the equal

protection of the laws as guaranteed by the Fourteenth

Amendment were violated by virtue of the restraints

placed upon his peremptory challenges. (Petition 4, 16.)

Petitioner’s argument that the Sixth and Fourteenth

Amendments ensure him unfettered peremptory chal-

lenges is without basis. The right to exercise such chal-

lenges is not constitutionally mandated; rather, it is state-

created. The limitation on the challenges allowed by the

state trial and appellate courts did not violate his rights

to jury trial, due process or equal protection. Respecting

the equal protection argument, petitioner was simply not

denied any right extended to persons similarly situated.

The state’s restriction on petitioner’s challenges did not

violate due process or the Sixth Amendment because it

did not affect the function of the jury as an impartial trier

of fact; moreover, there exist compelling justifications for

the limitation.

—_—-

10

1. States Need Not Allow Defense Peremptory Chal-

lenges. Once a State Permits Such Challenges, It

May Restrict Them in Any Reasonable Manner

“The right of peremptory challenge is...a right to

reject jurors.” (United States v. Marchant, 25 U.S. 480,

482, 6 L.Ed. 700 (1827).) There can be no doubt in this

ease that the state trial court restricted petitioner’s right

to reject three black jurors and therefore limited the

exercise of his peremptory challenge. Nevertheless, that

limitation did not result in any incursion upon his consti-

tutional rights.

The procedural details of the jury system are for the

states to control and develop. This Court has established

that

“ ‘there is nothing in the Constitution of the United

States which requires the Congress or the States

grant peremptory challenges[.]’” (Swain v. Ala-

bama, 380 U.S. 202, 219, 138 L.Ed.2d 759, 772, 85

S.Ct. 824 (1965); see also Batson v. Kentucky, supra,

476 U.S. at ___, 90 L.Ed.24 at 84, 106 S.Ct. 1712.)

As stated in United States v. Wood, 299 U.S. 123, at 145-

146, 81 L.Ed. 78, at 88, 57 S.Ct. 177 (1936) (citing Stilson

v. United States, 250 U.S. 583, 586, 63 L.Ed. 1154, 1156, 40

S.Ct. 28 (1919)),

“¢'T]rial by an impartial jury is all that is secured.’

* * *

“ ..[T]be mode of procuring and impanelling such

jury is regulated by law, either common or

statutory....”

(See also, Swain v. Alabama, supra, 380 U.S. at 244, 13

L.Ed.2d at 786, 85 S.Ct. 824 (Goldberg, J., dissenting).)

1]

Petitioner contends that his Sixth Amendment guaran-

tee of an impartial jury tria) was -violated by the trial

court’s actions. To the contrary, the Sixth Amendment

does not dictate to the states precise procedures to follow

to warrant against abridgement of this right. Further-

more, the practice petitioner advocates would frustrate,

not encourage, the formation of impartial juries.

It is essential to investigate Williams v. Florida, 399

U.S. 78, 26 L.Ed.2d 446, 90 S.Ct. 1893 (1970), in this

regard. In Williams, this Court decided that the Sixth

Amendment right to jury trial did not require a state to

present criminal defendants with a trial by exactly 12

persons. The Court upheld a Florida law which provided

for a six-man jury in all but capital cases.

“Legislatures may well have their own views about

the relative value of the larger and smaller juries ....

Our holding does no more than leave these considera-

tions to the Congress and the States, unrestrained by

an interpretation of the Sixth Amendment that would

forever dictate the precise number that can consti-

tute a jury.” (Williams v. Florida, supra, 399 U.S. at

103, 26 L.Ed.2d at 462, 90 S.Ct. 1893.)

Thus, the Court responded to Florida’s limitation on the

numbers in a petit jury panel by allowing the restriction,

despite the tradition of the 12-man jury. To determine

whether the Sixth Amendment commands a particular

procedure, this Court stated,

“(t]he relevant inquiry ... must be the function that

the particular feature performs and its relation to the

purposes of the jury trial.” (/d., -399 U.S. at 99-100,

26 L.Ed.2d at 460, 90 S.Ct. 1893.)

Viewed in this light, petitioner’s interpretation of the

scope of the Sixth Amendment is clearly flawed.

12

“T]he essential feature of a jury trial obviously lies

in the interposition between the accused and his

accuser of the common sense judgment of a group of

laymen, and in the community participation and

shared responsibility that results from that group’s

determination of guilt or innocence.” (Jd., 399 U.S.

at 100, 26 L.Ed.2d at 460, 90 S.Ct. 1893.)

Absolute freedom to discharge blacks from a petit jury

simply because they are black would not serve this pur-

pose. Instead, it would negate community participation

and work strongly against providing a common sense

judgment in jury verdicts by the promotion of group bias.

(See Batson v. Kentucky, supra, 476 U.S. at ——, 90

L.Ed.2d at 81-82, 106 S.Ct. 1712.) Unrestricted defense

peremptory challenges would perform a function that

would hinder, not help, the realization of a fair and proper

jury trial. Clearly no Sixth Amendment violation appears

from the limitation imposed by the state courts.

Petitioner’s assertion that he was denied equal protec-

tion of the laws is also without merit. State action under

the Fourteenth Amendment

“is not open to the objection that it denies ... equal

protection of the laws, if all persons brought under

its ‘efluence are treated alike under the same condi-

tions.” (Missouri Pacific Railway Co. v. Mackey, 127

U.S. 205, 209, 32 L.Ed. 107, 109, 8 S.Ct. 1161

(1888).)

(See also Queenside Hills Realty Co. v. Saxl, 328 U.S. 80,

84, 90 L.Ed. 1096, 1098-1099, 66 S.Ct. 850 (1945); Prince

v. Massachusetts, 321 U.S. 158, 170-171, 88 L.Ed. 645, 655,

64 S.Ct. 438 (1943).) Here petitioner has not shown that

the California restriction on his peremptory challenges

resulted in treatment of him which was different from

that received by any other criminal defendant. Thus, he

13

has failed completely to establish a elaim of denial of

equal protection of the laws.

Likewise, the restraints placed upon petitioner's per-

emptory challenges did not deny him due process.” In the

companion cases of Johnson v. Louisiana, supra, 406 U.S.

356, 32 L.Ed.2d 152, 92 S.Ct. 1620, and Apodaca v.

Oregon, supra, 406 U.S. 404, 32 L.Ed.2d 184, 92 S.Ct.

1628, this Court held constitutional state laws which

allowed criminal convictions based upon verdicts of guilty

by non-unanimous juries. Again, the decisions stressed

the state’s control of criminal procedure.

In Johnson the appellant was charged with robbery, an

offense necessarily punished by hard labor. Louisiana law

required the guilty votes of nine of twelve jurors to

convict a defendant of such a crime. The state demanded

unanimity only in trials of capital crimes attended by 12-

man juries and in trials by five-man juries for crimes

where the penalty of hard labor was merely permissive.

The appellant complained that because he had been con-

vieted by a verdict of nine to three, he had been denied

due process and equal protection of the laws. This Court

*Petitioner does not specifically raise the argument that the con-

straints upon his peremptory challenges violated the Fourteenth

Amendment’s Due Process Clause. However, respondent has chosen

to discuss the application of the tenets of due process for two

reasons: first, a due process analysis has been utilized in cases

decided by this Court involving the states’ extension or denial of

privileges in criminal proceedings. Ross v. Moffitt, 417 U.S. 600, 608-

612, 41 L.Ed.2d 341, 350-351, 94 S.Ct. 2437 (1974); Marshall v.

United States, 414 U.S. 417, 428-430, 38 L.Ed.2d 618, 627-628, 94 S.Ct.

700 (1974); Apodaca v. Oregon, 406 U.S. 404, 32 L.Ed.2d 184, 92

S.Ct. 1628 (1972); Douglas v. California, 372 U.S. 353, 357, 9 L.Ed.2d

811, 814, 83 S.Ct. 811, 814, 83 S.Ct. 814 (1963).) Second, a due

process discussion thoroughly exposes petitioner’s contentions as

inconsistent with the proper role of the jury in this pluralistic society.

14

rejected his claims. With regard to the due process issue,

the Court declared:

“(I]t is our view that the fact of three dissenting

votes te acquit raises no question of constitutional

substance about either the integrity or the accuracy

of the majority verdict of guilt.” (Jd., 406 U.S. at 360,

32 L.Ed.2d at 158, 92 S.Ct. 1620.)

In Apodaca v. Oregon, supra, Justice White further

explained the due process holding:

“A requirement of unanimity, however, does not ma-

terially contribute to the exercise of ... common

sense judgment. As we said in Williams, a jury will

come to such a judgment as long as it consists of a

group of laymen representative of a cross section of

the community who have the duty and the opportu-

nity to deliberate, free from outside attempts at

intimidation, on the question of a defendant’s guilt.”

(Id., 406 U.S. at 410-411, 32 L.Ed.2d at 191, 92 S.Ct.

1628.)

The use of the peremptory challenge advocated by

petitioner, which would allow control of the racial makeup

of a jury to pass into a defendant’s hands, does not

contribute at all to the function of the jury as described in

Apodaca v. Oregon, supra. Peremptories based upon race

would surely jeopardize cross-seetional representation in

juries. Indeed, since “[n]o group ... has the right to

bloek convictions” (Jd., 406 U.S. at 413, 32 L.Ed.2d at

193, 92 S.Ct. 1628), uneontrolled use of peremptory chal-

lenges would clearly work against the fulfillment of the

jury's designated role.

The classifications created by the states in Johnson and

Apodaca served merely “io ‘facilitate, expedite, and re-

duce expense in the administration of justice.’ (Johnson

v. Louisiana, supra, 406 U.S. at 364, 32 L.Ed.2d at 160, 92

iene

15

S.Ct. 1620.) In this case, the denial of petitioner's chal-

lenges, as respondent demonstrates, infra, is based on far

more fundamental and honored grounds, namely the pres-

ervation of the state’s right to a fair trial and the guaran-

tee of access to the criminal justice system to persons of

all races. Given this necessary basis for the restriction on

petitioner’s statutory rights, he can hardly complain of a

denial of due process.

Just as in the cases above, the State of California in

this ease asserted control of its jury selection process in a

proper manner. The California Supreme Court in People v.

Wheeler, supra, and the Appellate Department in this ease

grounded their holdings upon California statutory and

constitutional provisions. The state thus assumed the

authority over the type of peremptory challenges exer-

eised by petitioner. That control, under the standards set

forth in this Court’s cases cited above, did not infringe

upon any provision of the United States Constitution.

State of California Penal Code section 1069 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.” (West’s Ann. Cal.

Penal Code § 1069.)

Penal Code section 1070, subdivision (a), allows the

defendant and the state each 10 peremptory challenges in

trials of offenses other than those punishable with death

or life imprisonment. (Jd., § 1070.)

In People v. Wheeler, supra, 22 Cal.3d 258, 148

Cal.Rptr. 890, 583 P.2d 748, the California Supreme

Court construed section 1069:

“It is true that the statute defines such a challenge

as one for which ‘no reason need be given’; but it does

not follow therefrom that it is an objection for which no

16

reason need exist.” (Id., 22 Cal.8d at 274, 148

Cal.Rptr. at 901, 583 P.2d 748, partial emphasis in

the opinion.) :

From that construction, the court proceeded to determine

that Article 1, section 16, of the California Constitution,’

which implicitly guaranteed a trial by an impartial jury,

was violated by the use of peremptory challenges to

remove prospective jurors on the sole ground of group

bias. (22 Cal.3d at 265, 276-277, 148 Cal.Rptr. at 895, 903,

538 P.2d 748.) The Wheeler court stated clearly the scope

of its decision in footnote 29, 22 Cal.3d at 282, 148

Cal.Rptr. at 906-907, 538 P.2d 748:

“(T]he Attorney General has [the] right [to object

to same misuse of peremptory challenges on the part

of defense counsel] under the constitutional theory we

adopt herein: the People no less than individual

defendants are entitled to a trial by an impartial jury

drawn from a representative cross-section of the

community. Furthermore, to hold to the contrary

would frustrate other essential functions served by

the requirement of cross-sectionalism. ... For exam-

ple, when a white defendant is charged with a crime

against a black victim, the black community as a

whole has a legitimate interest in participating in the

trial proceedings; that interest will be defeated if the

prosecutor does not have the power to thwart any

defense attempt to strike all blacks from the jury on

the basis of group bias alone.” (Emphasis added.)

The Appellate Department’s Opinion in this case adopted

the above statement in Wheeler as the rationale for its

decision. (Petition A-8, 186 Cal.App.3d at Supp. 7, 232

%Artiele 1, section 16, provides in relevant part:

“Trial by jury is an inviolate right and shall be secured to

Stee”

17

Cal.Rptr. at 107-108.) Thus, the restriction upon defense

peremptory challenges in the Wheeler and Pagel cases is

firmly set in the statutory, constitutional and common law

of the State of California.

As demonstrated above, the restriction is manifestly

not violative of the federal Constitution. Moreover, this

Court’s decisions and the opinions of individual justices

through Batson v. Kentucky express the rationales for the

restriction applied to peremptory challenges in this case.

Indeed, People v. Wheeler examined this Court’s opinions

to explain the policy behind its interpretation of the

California statutes and constitution. (22 Cal.3d at 267-

270, 148 Cal.Rptr. at 896-898, 583 P.2d 748.) When

viewed in the light of the applicable principles evoked by

this Court, which respondent discusses below, clearly the

restriction of the race-based excusal of jurors by the

defense in this case was a proper activity of the state

courts.

2. Petitioner Had No Constitutional Right to a Petit

Jury Panel From Which Blacks Were Excluded

The restriction imposed upon petitioner’s selection of

jurors in this case was proper, because he had no constitu-

tionally justified expectation of a jury from which blacks

were excluded. Given the total lack of even a colorable

argument to the contrary, no review of the Appellate

Department’s holding should be granted. As this Court

stated in Batson v. Kentucky:

“[A] defendant has no right to a ‘petit jury com-

posed in whole or in part of persons of his own race.’

[Citation]” (Jd., 476 U.S. at , 90 L.Ed.2d at 80,

106 S.Ct. 1712).

Furthermore, as the opinion in Williams v. Florida, supra,

observed,

18

“Even the 12-man jury cannot insure representation

of every distinct voice in the community, particularly

given the use of the peremptory challenge. As long as

arbitrary exclusions of a particular class from the

jury rolls are forbidden [citation], the concern that

the cross-section will be significantly diminished if

the jury is decreased in size from 12 to six seems an

unrealistic one.” (Jd., 399 U.S. at 102, 26 L.Ed.2d at

461, 90 S.Ct. 1893.)

(See also Apodaca v. Oregon, supra, 406 U.S. at 412-413,

32 L.Ed.2d at 192-193, 92 S.Ct. 1628.) Although Batson

has expanded the exception stated in Williams, supra, to

include “arbitrary exclusions” from a petit jury, the

lesson from these cases remains intact. A criminal defen-

dant can neither expect nor demand a jury composed of

persons who will favor him on racial grounds. He only has

a right to “a jury whose members are selected pursuant to

nondiscriminatory eriteria.”” (Batson v. Kentucky, supra,

476 U.S. at __, 90 L.Ed.2d at 80, 106 S.Ct. 1712.)

Petitioner, however, does not claim to have been deprived

of that right. What petitioner claims is the “time-honored

right to unfettered peremptory challenges.” (Petition

16.)

Petitioner's argument really amounts to a contention

that whenever a defendant has the opportunity to obtain a

biased jury by eliminating jurors because of their race

alone, he may constitutionally avail himself of that oppor-

tunity. the Constitution, however, does not afford such a

right to petitioner, as the above-cited cases demonstrate.

A defendant in a criminal trial has only the right to be

tried by an impartial jury from which racial groups have

not been excluded without cause. Since petitioner makes

no argument that such a trial did not occur, the Petition

should not be granted.

19

3. The State of California Was Entitled to a Fair

Trial before Impartial Jurors

A further reason exists why the Petition in this case

should not be granted. In view of the state’s interest in a

fair trial, no unwarranted restriction upon petitioner's

peremptory challenges took place. In matters relating to

selection of a jury, the government has an equal stake

with the defendant in the impanelment of an impartial

jury. The principle was established as early as Hayes v.

Missouri, supra:

“It is to be remembered that such impartiality re-

quires not only freedom from any bias against the

aceused, but also from any prejudice against his

prosecution. Between him and the state the scales

are to be evenly held.” (Jd., 120 U.S. at 70, 38 L.Ed.

at 579-580, 7 S.Ct. 350.)

(See also Batson v. Kentucky, supra, 476 U.S. at ___, 90

L.Ed.2d at 94-95, 106 S.Ct. 1712, (Marshall, J., econeur-

ring [citing Hayes and stating that since “[t]he potential

for racial prejudice ...inheres in the defendant’s chal-

lenge as well...only by banning peremptories entirely

ean such discrimination be ended.” ]; 476 U.S. at ____, 90

L.Ed.2d at 107, 106 S.Ct. 1712 (Burger, C.J., dissenting).

“The function of the [peremptory] 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 ease will decide on the basis of the

evidence placed before them, and not otherwise.”

(Swain v. Alabama, supra, 380 U.S. at 219, 13

L.Ed.2d at 759, 85 S.Ct. 824, emphasis added.)

In an analogous situation, this Court held in Singer v.

United States, 380 U.S. 24, 138 L.Ed.2d 630, 85 S.Ct. 783

(1965), that the Federal Rules of Criminal Procedure

could constitutionally require the consent of the prosecu-

20

tion and the court to a defendant’s waiver of a trial by

jury.

“The Constitution recognizes an adversary system as

the proper method of determining guilt, and the

Government, as a litigant, has a legitimate interest in

seeing cases in which it believes a conviction is

warranted are tried before the tribunal which the

Constitution regards as most likely te produce a fair

result.” (Id., 380 U.S. at 36, 13 L.Ed.2d at 638, 85

S.Ct. 783.)

Allowing absolute freedom for the defense in the Jury

selection process, as desired’ by petitioner, would under-

mine the state’s interest in a fair trial acknowledged by

the authority cited above. When a defense attorney avails

himself of a jury composed of persons of the defendant’s

own race, the state cannot be assured of a panel from

which the extremes of partiality have been eliminated.

When a defendant effectively seeks jurors prejudiced

against his prosecution by excusing blacks solely on the

basis of their race, the process no longer serves its

purpose to locate impartial jurors.

“The spectacle of a defense counsel systematically

excusing potential jurrors because of their race...

while the prosecutor and trial judge were constrained

merely to observe, could only impair the public’s

confidence in the integrity and impartiality of the

resulting jury.” (Booker v. Jabe, supra, 775 F.2d at

772.)

Because the limitation by the California courts upon

petitioner’s peremptory challenges furthers this state in-

terest, it is an eminently justifiable restriction. The ruling

of the Appellate Department of the Los Angeles Superior

Court should be allowed to stand.

21

4. All Citizens, Regardless of Race, Must Be Allowed

to Participate in Jury Deliberations in Criminal

Cases

Additionally, the state appellate court’s decision in this

ease should not be subject to a writ of certiorari, because

the ruling of the Superior Court was correct in determin-

ing that unabated peremptory challenges by defense

counsel in criminal cases would stifle the participation in

the jury system of all racial groups in our society. In the

statement which the Appellate Department cited (Peti-

tion A-7, 186 Cal.App.3d at Supp. 6, n. 1, 232 Cal.Rptr. at

107), Justice Powell wrote in Batson:

“The harm from discriminatory jury selection ex-

tends beyond that inflicted on the defendant and the

excluded juror to touch the entire community. Selec-

tion procedures that purposefully exclude black per-

sons from juries undermine public confidence in the

fairness of our system of justice. [Citation.] Discrim-

ination within the judicial system is most pernicious

because it is ‘a stimulant to that race prejudice which

is an impediment to securing to black citizens that

equal justice which the law aims to secure to all

others.’” (Batson v. Kentucky, supra, 476 U.S. at

——, 90 L.Ed.2d at 81-82, 106 S.Ct. 1712, citing

Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed.

664, 666 (1880).)

Other pronouncements of this Court are no less forceful.

“[T]he proper functioning of the jury system, and,

indeed, our democracy itself, requires that the jury

be a ‘body truly representative of the community, and

not the organ of any special group or class.” (Glasser

v. United States, 315 U.S. 60, 86, 86 L.Ed. 680, 707, 62

S.Ct. 457 (1942).)

“When any large and identifiable segment of the

community is excluded from jury service, the effect is

22

to remove from the jury room qualities of human

nature and varieties of human experience, the range

of which is unknown and perhaps unknowable. It is

not necessary to assume that the excluded group will

consistently vote as a class in order to conclude, as

we do, that its exclusion deprives the jury of a

perspective on human events that may have unsus-

pected importance in any case that may be

presented.” (Peters v. Kiff, 407 U.S. 493, 503-504, 33

L.Ed.2d 83, 94, 92 S.Ct. 2163 (1972), fn. omitted.)

(See also Vasquez v. Hillery, 474 U.S. —_, 88 L.Hd.2d

598, 607-608, 106 S.Ct. 617 (1986); Taylor v. Louisiana,

419 U.S. 522, 530, 42 L.Ed.2d 690, 698, 95 S.Ct. 692

(1975); Ballard v. United States, 329 U.S. 187, 193-194,

195, 91 L.Ed. 181, 186-187, 67 S.Ct. 261 (1946); Thiel v.

Southern Pacific Co., 328 U.S. 217, 220, 90 L.Ed. 1181,

1185, 66 S.Ct. 984 (1946).)

Petitioner dismisses these vastly important ideals of

our system of justice as “general societal goals” of “very

limited benefit.” (Petition 16.) In contrast stands Justice

O’Connor’s statement concurring in the denial of certio-

rari in Brown v. North Carolina, 479 U.S. ___, 93 L.Ed.2d :

373, 374, 107 S.Ct. 423 (1986):

“Batson, in my view, depends upon this Nation’s

profound commitment to the ideal of racial equality,

a commitment that refuses to permit the State to act

on the premise that racial differences matter. It is

central to Batson that a ‘person’s race simply “is

unrelated to his fitness as a juror” ’ Id., at , 90

L.Ed.2d 69, 106 S.Ct. 1712 (citation omitted) .’*

‘The dissenting opinion in Swain v. Alabama, supra, deplored the

use of the judicial system to perpetuate racial discrimination. Ac-

cording to Justice Goldberg, the record established “[t]he State’s

agreement with the defense...to remove Negroes from jury

23

The restriction in this case upon petitioner’s peremptory

challenges furthers the commitment against racial dis-

tinetions expressed by this Court and therefore is consti-

tutionally justified. Based on the solid underpinning of

the restriction, there is no need to reexamine the decision

of the Appellate Department in this case.

CONCLUSION

Petitioner has unabashedly asked this Court to allow

removal of jurors on the basis of, race. However, the

Appellate Department’s Opinion stands firmly upon Cali-

fornia law which withstands constitutional serutiny and

upon principles which this Court has vigorously main-

tained. The holding is consistent with that of other appel-

late courts. Certiorari should not be granted in this ease.

Respectfully submitted,

JAMES K. HAHN,

City Attorney of Los Angeles

WILLIAM N. STERLING,

Deputy City Attorney

LAURENCE WAYNE MOONEY

Deputy City Attorney

and

Counsel of Record

Attorneys for Respondent

State of California

venires.” (Jd., 380 U.S. at 234-235, and n. 2, 13 L.Ed.2d at 781, 85

S.Ct. 824.) This joint participation by state officials constituted state

action under the Fourteenth Amendment (Jbid.) If the prosecutor

and the trial judge in this case had permitted petitioner's defense

counsel to blatantly remove jurors solely because of their race, the

State of California would have been as deeply involved in discrimina-

tion. (Shelley v. Kraemer, 334 U.S. 1, 92 L.Ed. 1161, 68 S.Ct. 836

(1948).)

PROOF OF SERVICE BY MAIL

I am a citizen of the United States and a resident of the

City and County of Los Angeles; I am over the age of

eighteen years and not a party to the within action; my

business address is: 1706 Maple Avenue, Los Angeles,

California.

On March 31, 1987, I served the within Brief in Opposi-

tion to Petition for Writ of Certiorari in re: “Herbert

Pagel vs State of California” in the United States

Supreme Court, October Term 1986, No. 86-1085;

on the Parties in said action, by placing Three copies

thereof enclosed in a sealed envelope with postage fully

prepaid, in the United States post office mail box at Los

Angeles, California, addressed as follows:

Clerk, United States Honorable Larry Fidler

Supreme Court Criminal Courts Building

#1 First Street N.E. 210 West Temple Street

Washington, D.C. 20543 Los Angeles, CA 90012 (1)

(Original and forty copies) Honorable Michael E. Pastor

Edward J. Horowitz, Criminal Courts Building

Attorney at Law 210 West Temple Street

11661 San Vicente Bivd., Los Angeles, CA 90012 (1)

Suite 1015

Los Angeles, CA 90049

Clerk, Appellate Dept. of the

Superior Court

Department 70

111 North Hill Street

Los Angeles, CA 90012 (1)

All parties required to be served have been served.

I certify (or declare), under penalty of perjury, that the

foregoing is true and correct.

Executed on March 31, 1987, at Los Angeles, California

CE CE MEDINA