Brief Bank # B-825 (Re: PG VII(C)(34) [Substantive Federal Constitutional Issues: Impairment Of Right To Exercise Peremptory Challenges As Federal Constitutional Violation].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
___________________________________)
Excerpt from
APPELLANT’S REPLY BRIEF
Appellant submits the following reply brief. This reply brief responds to the Attorney General’s contentions which require further discussion for proper determination of the issues raised on appeal. This brief does not respond to issues that appellant believes were adequately discussed in the opening brief, and appellant intends no waiver of these issues by not expressly reiterating them here.
ARGUMENT
I
APPELLANT’S RIGHT TO AN IMPARTIAL JURY WAS ABRIDGED BY THE TRIAL COURT’S ORDER THAT HIS PEREMPTORY CHALLENGES MUST BE APPROVED BY THE COURT PRIOR TO THEIR EXERCISE WHEN DEFENSE COUNSEL DID NOT HAVE “GOOD CAUSE” TO EXERCISE SUCH PEREMPTORY
Appellant contends that the trial court’s requirement that defense counsel obtain the court’s pre-approval of its peremptory challenges violated appellant’s constitutional right to a fair and impartial jury as well as his statutory right to peremptory challenges. Respondent disagrees with this premise, and also argues that in any event any such error was harmless.
A crucial fact that respondent does not address in its brief is that the court’s pre-approval procedure only pertained to defense counsel’s use of peremptories relating to white males. (RT 156, 230, 231, 25 1.) Respondent does not cite any cases in which counsel for the defendant is required to go through a more onerous procedure than the prosecution to exercise peremptories. The entire precept of peremptories is to ensure a fair trial. (Batson v. Kentucky (1986) 476 U.S. 79, 91 [106 S.Ct. 1712, 90 L.Ed.2d 69].) Imposing greater burdens on a defendant, already facing the daunting task of defending against charges filed by the state raises serious due process considerations relating to the fundamental fairness of trials. (Morgan v. Illinois (1992) 504 U.S. 719 [119 L.Ed. 2d 492, 112 S.Ct. 2222 ] [jurors in a capital trial who would automatically vote for death should be excluded in light of “the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment”]; See, also People v. Diaz (1951) 105 Cal.App.2d 690 [reversible error where court erroneously denied defendant two peremptory challenges, defendant used all available challenges, sought to exercise another, and moved for mistrial on the basis he was deprived of his rights with respect to the selection and impaneling of the jury]; cf. People v. Crowe (1973) 8 Cal.3d 815, 831-832 [no prejudicial error where, after defendant exercised six peremptory challenges, court mistakenly announced defendant had completed his peremptory challenges and swore jury; after recess, court announced its error but counsel declined the court’s invitation to exercise additional challenges].) The restriction also abridges appellant’s right to trial by jury. “Peremptory challenges in the number and to the extent allowed by statute constitute an important part of the defendant’s right to trial by jury, and any unwarranted restriction of the right is error of the most serious sort.” (5 Witkins & Epstein California Criminal Law, 2d Edition 1989), § 286 p. 3493.) As one case has noted:
It has been said that it is one of the chief safeguards of a defendant against an unlawful conviction and that the courts ought to permit its freest exercise within the limitation fixed by the Legislature…. The right may not be abridged or denied. Arbitrary abridgment or denial of the right runs counter to principles vital to the integrity and maintenance of the system of a constitutional right of trial by jury. (People v. Diaz, supra, 105 Cal.App.2d at p. 696, cited with approval in People v. Bittaker (1989) 48 Cal.3d 1046, 1088.)
Respondent also cites to language in Batson v. Kentucky indicating that the federal high court was not expressing a view on whether the entire venire should be dismissed after a finding of discrimination or whether the discriminatory challenges should be disallowed by reseating the wrongfully discharged jurors.
Respondent apparently suggests that the procedure employed in the present case might pass constitutional muster based on the Batson court’s lack of direction in this area.
However, our own Supreme Court has expressly stated that requiring a party to justify a peremptory strike before it is made is both unsound and premature. (People v. Clair (1992) 2 Cal.4th 629, 653 [defendant not entitled to require prosecutor to justify future peremptory challenge of black prospective juror; request was premature.) The fact that Batson may not have expressed a view as to the proper procedure, does not offer any guiding principle that is useful in the present case.
The procedure established by our own state court in People v. Wheeler, [Footnote 1] discussed at length in the opening brief, is the only authorized procedure that has been recognized in this state by any controlling authority. (See also People v. Ledesma 1987) 43 Cal.3d 171, 231-232, concurring opn., J. Mosk [“This procedure will help the courts and parties achieve the most fair and correct result, both below and on appeal.”].)
Respondent also argues that requiring defense counsel to approach the bench prior to exercising his peremptories was an “implied prima facie finding” that appellant was discriminating against white male prospective jurors in the use of his challenges. (RB 12.) Respondent’s reliance on People v. Turner, which it contends supports its position, is misplaced. Respondent apparently has misinterpreted People v. Turner, which reiterated a previous ruling in an unrelated case that a trial court makes an implied finding of a prima facie case of discrimination when it asks counsel to explain why a particular peremptory was made. (People v. Turner (1994) 8 Cal.4th 137, 167, citing People v. Fuentes (1991) 54 Cal.3d 707, 721.) The Turner court wrote: “We first conclude that resolution of the issue of whether a prima facie case was made is not mooted by the trial court’s subsequent solicitation of the prosecutor’s justifications for his challenges.” The Turner court held that the court may solicit justifications even though not finding a prima facie case of discrimination in the event that an appellate court may not agree with its failure to find a prima facie case. (People v. Turner, supra, 8 Cal.4th at pp. 166-167.)
Perhaps more importantly is the obvious distinction that in Turner, the prosecutor had made his peremptories, and then upon a properly filed Wheeler objection, the court asked counsel to state its reasons for exercising the peremptory. In the instant case, the trial court essentially put the cart in front of the pony by requiring pre-approval of defense peremptories.
Appellant also takes issue with respondent’s assertion that the trial court did not impose a more demanding burden to justify his peremptories than is required by Wheeler and its progeny. Respondent acknowledges that the court instructed appellant to justify his peremptories so that the court was “absolutely” convinced that the reasons were for other than race and their sex. (RB 13, citing RT 155.) Defense counsel did in fact provide reasons that were not based on impermissible group bias. (RT 147-153.) [Footnote 2]
It is true that the judge did not reiterate that he must be absolutely convinced that the reasons were not impermissible when ordering that defense counsel pre-approve any further peremptories of white males. However, there is no basis to assume that the court was going to rely on any different standard than the one he had already announced for its determination of the validity of defense counsel’s first group of peremptories. There is little room for doubt that inasmuch as trial counsel had provided reasonable justification for its previous peremptories, which were in fact rejected by the court because it apparently had not been absolutely convinced of their validity, that any further peremptories would have to meet the same standard.
It has long been established that if the trial court finds that the defendant has established a prima facie case, the burden shifts to the prosecution to provide “a race-neutral explanation related to the particular case to be tried” for the peremptory challenge. (People v. Fuentes, supra, 54 Cal.3 d at p. 714; Batson v. Kentucky, supra, 476 U.S. at p. 97 [90 L.Ed.2d at p. 88].) However, the explanation need not be sufficient to justify a challenge for cause. (Batson v. Kentucky, supra, 476 U.S. at p. 97 [90 L.Ed.2d at p. 88].) Jurors may be excused based on “hunches” and even “arbitrary” exclusion is permissible, so long as the reasons are not based on impermissible group bias. (People v. Hall (1983) 35 Cal.3d 161, 170.)
Respondent also argues that appellant has not demonstrated that there is any prejudice from the court’s requirement that defense counsel seek pre-approval of his peremptory challenges. (RB 24.) Respondent erroneously relies on cases in which the challenge stems from a erroneous denial of a challenge for cause. The error in the instant case, however, stems from the court’s improper denial of a peremptory challenge and not as respondent incorrectly argues, a challenge for cause. It is well-established if the defendant can show that his right to an impartial jury was affected because he was deprived of a peremptory challenge which he would have used to remove the juror in question, he is entitled to reversal; he need not show that the outcome of the case would have been different. (People v. Bittaker (1989) 48 Cal.3d 1046, 1087-1088.)
Moreover, the Chapman standard, referred to by respondent, requires that the state prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] [prosecution must establish that the error was harmless beyond a reasonable doubt].) Inasmuch as a juror was seated who appellant had a right to peremptorily challenge, the prosecution is unable to prove beyond a doubt that this error did not contribute to the verdict obtained.
Based on the foregoing, appellant respectfully requests that his conviction be reversed.
FOOTNOTES:
Footnote 1: People v. Wheeler (1978) 22 Cal.3d 258.
Footnote 2: Defense counsel provided the following reasons for its exercise of peremptories after the trial court found a prima facie case: Juror 2157 was a juror on a case involving sales of narcotics suggesting that he had been versed in narcotics law and thus tainted; Juror 9007 was an Asian lady and thus not within terms of the motion; Juror number 8 was a Hispanic male and thus not within the terms of the motion; Juror number 0116 had been a juror on a death penalty case and as such counsel did not think he would be sympathetic to a defendant. This juror had also witnessed a store robbery, and appellant had prior robberies. This juror was also a blue collar worker who defense counsel suspected was more pro-law enforcement; Defense counsel thought that Juror 1105 was Hispanic. Since the court did not think so, defense counsel was asked to provide a reason for excusing him. He was excused because of extensive experience as a juror on drug cases; Juror 8265 was from a community which defense counsel considered very conservative and supportive of law enforcement. This was a case in which the police officer’s credibility was a key issue; Juror 4030 was also blue collar and likely empathetic to police officers even though he was a vice president of a company; Juror 6155 was Hispanic; Juror 4540 was from a community surrounded by lower income communities which had substantial contact with police due to a high burglary rate. (RT 147-153.)
LETTER BRIEF
February 23, 1999
Honorable Joan Dempsey Klein, Presiding justice and Honorable Associate justices
Court of Appeal, State of California
Second Appellate District, Division Three
300 South Spring Street
Second Floor, North Tower Los Angeles, CA 90013
Re: People v. Doe B000000
Dear Presiding justice Dempsey Klein and Associate Justices:
Appellant respectfully requests permission to file the instant letter brief which is intended to supplement appellant’s Reply Brief. (See Cal. Rules of Court, rule 14 (a).) After further consideration of the issues raised by respondent in its brief, and review of recently published decisions, appellant has determined that additional briefing on the issue of denial of appellant’s peremptory challenge, which is addressed in Appellant’s Opening Brief and Reply Brief as Argument One. The additional briefing is as follows:
A recently published Ninth Circuit decision has held that denying a defendant the right to exercise his peremptory challenges violates federal constitutional rights. (Vansickel v. White (9th Cir. 1/27/99) 99 C.D.O.S. 743.) The federal court concluded, after considering several federal decisions, that the state right to peremptory challenges is a state-created interest protected by the due process clause within the Fifth and Fourteenth Amendments.
The Vansickel court noted that the Supreme Court has stated that “peremptory challenges are not of constitutional dimension.” (Ross v. Oklahoma (1988) 487 U.S. 81, 88) In Ross, the Court held that the erroneous denial of a challenge for cause that required defense counsel to use a peremptory challenge did not violate the Sixth Amendment. The Court concluded that peremptory challenges are a creature of statute, not required by the Constitution, and “[a]s such, the ‘right’ to peremptory challenges is ‘denied or impaired’ only if the defendant does not receive that which state law provides.” (Id. at 89.)
The Vansickel court recognized, however, that it had already held in a previous case that Ross did not foreclose a Fifth Amendment challenge to a wrongful denial of a peremptory challenge. (Vansickel v. White, supra, 99 C.D.O.S. 743 citing, United States v. Martinez-Salazar (9th Cir. 1998) 146 F.3d 653.) The Vansickel court relied on well-established principles which hold that:
“[Tlhe failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state.” Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993); see also Moran v. Godinez, 57 F.3d 690, 698 (9th Cir. 1994) [“the denial or misapplication of state procedures that results in the deprivation of a substantive right will implicate a federally recognized liberty interest.”]. (Vansickel v. White, supra, 99 C.D.O.S. 743; see also, Martinez-Salazar, supra, 146 F.3d at 658 (“[D]ue process would be violated if a trial court permitted a defendant to exercise fewer than the number of peremptory challenges authorized by law.”)
As to the showing of prejudice, the Vansickel court noted that erroneous denial of a peremptory challenge requires automatic reversal in direct appeal cases in which the defendant has timely objected in the trial court to the erroneous limitation of their peremptory challenge. (See Martinez-Salazar, supra, 146 F.3d at p. 653; United States v. Annigoni (9th Cir. 1996) 96 F.3d 1132. [Footnote 1]
Another recent decision from the South Carolina Supreme court is also instructive on this issue. (State v. Short, SC, No. 24879, 1/18/99.) The state supreme court there endorsed the court of appeal’s adoption of the reasoning of U.S. v. Annigoni on the issue of automatic reversal in cases in which a peremptory challenge has wrongfully been denied. In Short, both the court of appeal and the state high court determined that the trial court’s ruling that two defense strikes violated Batson was reversible error. They also concluded that no showing of prejudice was required because there was no way to determine with any degree of certainty whether the defendant’s right to a fair trial by an impartial jury had been abridged.
Based on the foregoing, appellant respectfully requests that his conviction be reversed.
Respectfully submitted,
Janet J. Gray
Proof of Service, attached
LETTER BRIEF FOOTNOTES:
Footnote 1: The defendant Vansickel, however, was before the court in a habeas court proceeding, and had not objected to the trial court’s denial of half of his peremptories. Both of these factors subjected Vansickel to a required showing of prejudice.
