West Justice Center
Anthony J. Ferrentino
Judge
West Panel
Loyola Law School
In 2020, the California State Legislature proposed changes to the current procedures for objecting to peremptory challenges in criminal jury selection. These changes were set forth in AB 3070 which outlined a new structure to prevent challenges that were improperly asserted based on a juror's cognizable group - race, ethnicity, gender, gender identity, sexual orientation, national origin or religious affiliation or the perceived membership in any of those groups. The California State Senate Committee on Public Safety relied on several sources to come to the conclusion that prior restraints on peremptory challenges - in place by law grounded on Batson v. Kentucky, 476 U.S. 79 (1986) and People v. Wheeler, 22 Cal.3d 258 (1978) - had not been successful in preventing litigants from improperly excusing jurors based on their particular cognizable group. AB 3070 was passed and codified in 2020 at California Code of Civil Procedure § 231.7, with an effective date of Jan. 1, 2022, for criminal trials. California Code of Civil Procedure 231.7(k). Section 231.7, as currently written, will be repealed on Jan. 1, 2026, to be replaced at that time with the new version including its application to civil as well as criminal cases. California Code of Civil Procedure 231.7(n).
Since its passage, there have been less than a dozen published California Appellate Court decisions involving an analysis of section 231.7. This article provides a summary of the relevant statutory and decisional authority regarding section 231.7. Although the framework of California Code of Civil Procedure § 231.7 is complicated, the following will be an attempt to summarize the procedures and analysis which must be conducted when an objection is made to a peremptory challenge based on actual or perceived cognizable group status under the statute.
Framework of California
Code of Civil Procedure § 231.7
1. Identifying a Cognizable Group and Reasoning Requirements
Under a Batson/Wheeler analysis, the party objecting to an exercising party's use of a peremptory challenge has to identify a cognizable group that was protected and also make a prima facie case of invidious discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Box v. Superior Court, 87 Cal.App.5th 60, 70 (2022). If this initial showing is not satisfied, then the party exercising the challenge need not provide reasons for excusing the juror. This changed dramatically under California Code of Civil Procedure § 231.7 - in that the objecting party only has to assert that the juror was improperly excused based on the juror being a member or perceived member of a cognizable group, and then the exercising party is required to provide reasoning for the excusal. California Code of Civil Procedure § 231.7(c). This assertion by the objecting party should be made in compliance with California Rules of Professional Conduct, rule 3.1(a)(1), which states that a lawyer shall not "assert a position in litigation . . . . without probable cause".
Unlike a Batson/Wheeler analysis, there is no prima facie showing required to be provided by the objecting party under section 231.7. After an objection is made, the court is only to consider the reasons given by the exercising party in response to the objection, and is not to "speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge." California Code of Civil Procedure § 231.7(d). However, the Court in People v. Ortiz, 96 Cal.App.5th 768, 799-800 (2023), indicated that when the court provides additional reasons for excusing jurors that the exercising party did not assert but then adopts, the court can consider those reasons, albeit with emphasized special scrutiny.
2. Analysis of Reasons for Exercising Peremptory Challenges
Once the party exercising the peremptory challenge states their reasoning in response to an objection, then the parties can argue their respective positions to the court. The court must then determine if there is a "substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge." California Code of Civil Procedure § 231.7 (d)(1) (emphasis added). "Substantial likelihood" is defined in the statue as "more than a mere possibility but less than a standard of more likely than not." California Code of Civil Procedure § 231.7 (d)(2)(B). An "objectively reasonable person" under this standard is defined as a person who is "aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors, in the State of California." California Code of Civil Procedure § 231.7 (d)(2)(A). If the substantial likelihood standard is met, then the objection would be sustained by the court. As discussed in further detail below, the use of the word "would" in the California Statute is an important difference to consider when comparing it to a similar statute in place in the State of Washington and the case law interpreting that Washington statute.
California Code of Civil Procedure 231.7 provides a number of factors for the court to consider in making its determination once an objection is made to a peremptory challenge, including the cognizable groups of the attorneys, parties and witnesses in relation to the juror, as well as comparative analysis of the attorneys' questioning of that juror as developed under Batson/Wheeler decisional law. California Code of Civil Procedure 231.7(d)(3). The court can also look to "[w]hether a reason might be disproportionately associated" with a recognized cognizable group. California Code of Civil Procedure § 231.7(d)(3)(E). An important question remains as to how the court should undertake the analysis of whether the reason given is associated with a certain cognizable group. Should the court rely on the attorneys, the court's own personal experience, studies and data or all of these? For example, if a moving party attempts to excuse a juror based on their occupation with the objecting party arguing "we all know that (fill in the cognizable group) are overwhelmingly employed in that profession" can the court accept that? If so, then is the court then generalizing and making assumptions as to the characteristics of certain cognizable groups which may invoke the use of implicit biases and further establishes improper stereotyping of each of these groups? A further quandary in this area can also be seen when looking at presumptively invalid reasons established in the statute and its discussion and analysis would entail a full article on that subject alone.
California Code of Civil Procedure § 231.7(e) contains a list of reasons that if given by the excusing party are presumptively invalid under the law. Such a presumption of invalidity can only be overcome by the exercising party showing "by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror's" cognizable group or perceived status in that group "and that the reasons articulated bear on the prospective juror's ability to be fair and impartial in the case." The first portion at least questions whether the court must again conduct an analysis as to whether the reason given for excusing the juror is related to the particular cognizable group. If the court overrules the objection, then the juror is removed per the peremptory request. However, if the objection is sustained then the court may leave the juror on the panel or look to other remedies available per California Code of Civil Procedure § 231.7(h). Other presumptively invalid reasons are listed in California Code of Civil Procedure § 231.7(g) including perceptions of the juror's body language, lack of eye contact, attitude, demeanor, unintelligent or confused answers as well as other observations. The only way to overcome such presumptively invalid reasons is if the court views the same conduct and there is a sufficient nexus shown as to why such actions by the juror are relevant to the case. California Code of Civil Procedure § 231.7(g)(2).
3. "Would" vs. "Could" - A Key Distinction between the California Statute and Washington General Rule
The Washington Supreme Court adopted General Rule 37 in April of 2018 which served, at the very least, as a framework for California Code of Civil Procedure § 231.7. Many of the provisions of the California statute mirror language found in the Washington General Rule. However, there is at least one key difference, in that instead of analyzing whether an objectively reasonable person "would" view being part of the cognizable group as a factor, the Washington rule provides that the court must decide if an objective observer "could" view race or ethnicity as a factor, with an answer in the affirmative resulting in sustaining the objection to excusing the juror. While orthographically the words differ by only a letter, the legal significance of the use of "could" versus "would" was a substantial focus of debate in drafting, and ultimately enacting the Washington General Rule.
The discussion of the use of these terms can be seen most pointedly in the Proposed New GR 37 - Jury Selection Workgroup Final Report of 2018 which was relied upon in forming their general rule. In this report, some argued the use of the word "could" might stop judges from overruling any objections to peremptory challenges while others stated the use of "would" is not meaningfully different than "purposeful discrimination" under Batson. At least one jurist stated the use of the word "could" is "unworkable and will virtually result in the denial of every peremptory challenge" also stating that it would be preferable just to eliminate peremptory challenges than implement the statute otherwise. Others argued the use of would "essentially compels a judge to endorse 'an accusation of deceit or racism' in order to sustain a challenge" while the use of could "softens the accusatory edge of the objection." This topic of debate with the stakeholders was discussed in State v. Tesfasilasye, 200 Wash.2d 345, 357 (2022) wherein the court stated under the "'could view standard a judge is required to deny a peremptory challenge when the effect is discriminatory regardless of whether there was discriminatory purpose" and "is more likely to prevent peremptory dismissals of jurors based on the unconscious or implicit biases of the lawyers." The semantic difference is important to bear in mind if attempting to analogize Washington State decisional law in a comparable analysis decision in California regarding the application of California Code of Civil Procedure § 231.7.
An overview of published
California cases
In looking at the cases published after the inception of California Code of Civil Procedure § 231.7, several issues have been addressed while others remain open to interpretation. In People v. Aranda, 95 Cal.App.5th 311 (2023), the court affirmed that California Code of Civil Procedure § 231.7 only applies to peremptory challenges and not those for cause. In Aranda, a juror in a criminal matter indicated her husband had a negative experience with the court system and that the juror "would be more critical of police officers" in assessing witness credibility. The prosecution challenged the juror for cause which the court allowed. The Court of Appeal ruled the plain language of California Code of Civil Procedure § 231.7 indicated that the statute did not apply to for cause challenges and therefore upheld the lower court's decision. Aranda at 315. In People v. Ortiz, 96 Cal.App.5th 768 (2023), the court upheld the challenge by a prosecutor to a Black juror being excused after an objection by the defense pursuant to California Code of Civil Procedure § 231.7. The prosecutor sought to excuse the only Black juror who had made it in the jury box based on confused evasive answers as well as feelings on punishment. The trial court confirmed viewing the behavior related to the confused evasive answers per California Code of Civil Procedure § 231.7 (g)(2). The trial court then agreed the prosecutor sufficiently explained how the conduct of the juror mattered to the case to be tried, and the appellate court upheld the ruling based on this analysis. Recently, in People v. Caparrotta, 103 Cal.App.5th 874 (2024) the court found that presumptive invalidity under 231.7(g) will remain unless the court confirms viewing specific juror conduct, such as problematic body language or demeanor, and the party explains why such conduct matters to the case to be tried. If these requirements are not satisfied, then such invalidity cannot be overcome by "facially neutral reasons that do not fall within the scope of subdivision (g)". In making this ruling, the court relied on legislative intent stating ". . .the Legislature would not have set up a procedure under which a trial court could overrule an objection after a peremptory challenge was already determined to be based, at least in part, on an invalid reason". In another case addressing section 231.7(g), the court in People v. Joel SanMiguel, 2024 DJDAR 9746 upheld the trial court's decision of overruling an objection to excusal of a Hispanic juror. Unlike Caparrotta, the trial court in SanMiguel did confirm viewing the behavior proffered by the prosecutor including inattentiveness of the juror. In looking to the explanation as to why inattentiveness of a juror mattered to the case, the court stated that " . . . no capable attorney would fail to challenge such a juror unless the attorney had what is known in the trade as a dead-bang loser." Interestingly, a concurring opinion by Justice Yegan declared California Code of Civil Procedure § 231.7 (j) to be unconstitutional under a separation of powers analysis stating the statute is "akin to [a] statute telling a plumber how much torque is required when using a pipe wrench." Justice Yegan indicated the well-established rule allowing the reviewing court to consider all reasonable inferences to uphold a ruling was precluded by 231.7(j) therefore violating the California Constitution which requires an examination of the entire record before reversal. The dissent in Sanmiguel indicated that the prosecutor did not explain how inattentiveness mattered to the case and therefore the case must be reversed. Several other cases dealt specifically with the issue of presumptively invalid challenges.
In People v. Uriostgui, 101 Cal.App.5th 271 (2024) the court analyzed whether a prosecutor's reasons for challenging a juror fell within the presumptively invalid framework of California Code of Civil Procedure § 231.7(e). In this case, the prosecutor sought to remove what was perceived by the defense as a Hispanic female juror. The prosecutor gave several reasons for attempting to remove this juror including "lack of life experience." Uriostgui at 904. The juror indicated she did work at a fast-food restaurant but was not currently working due to an injury. She also stated she had no military service and had not previously served on a jury. The Attorney General argued that "lack of life experience" was not a presumptively invalid reason and the appellate court disagreed stating that such lack of experience was ". . . based in part on the presumptively invalid reason of 'lack of employment or underemployment'" per California Code of Civil Procedure § 231.7(e)(11) and therefore the excusal of that juror was error. Uriostgui at 904. The dissent noted that the trial court "necessarily concluded the prosecutor was not using the facially neutral reason of 'lack of life experience' to conceal a presumptively invalid reason" and that the majority's "rote application of § 231.7 defeats" the goal of all parties in the litigation being entitled to a fair trial. Uriostgui at 907.
In People v. Jimenez, 99 Cal.App.5th 534, (2024), the trial court ruled that although a prosecutor had given a presumptively invalid reason for challenging a juror, that presumption was overcome by a showing of clear and convincing evidence. In that case, the excused juror was Latina which was the same race as the defendant and one of the prosecutor's witnesses. The prosecutor gave three reasons for excusing this juror including the juror's ". . .beliefs about the racial bias of law enforcement officers, who would be the only witness in the case." Jimenez at 542. The prosecutor had already successfully excused a white female juror for cause based on similar reasoning. The appellate court ruled that the trial court did not err in finding by clear and convincing evidence that " . . . an objectively reasonable person would view the presumptively invalid reason to be related to the juror's ability to be fair and impartial, rather than to her membership in a cognizable group." In August of this year, the Second Appellate District Division Three seemed to support this reasoning in People v. Gonzalez, 104 Cal.App.5th, 1 (2024). In Gonzalez, the prosecutor attempted to exercise a peremptory challenge against a juror after a request for cause removal was denied. The juror was identified as African American and indicated in a questionnaire that "experiences with a law enforcement officer would prevent [him] from judging a law enforcement witness by the same standard as any other witness." Gonzalez at 4. The juror was questioned by the court and answered in the affirmative to a series of questions indicating he would listen to the evidence and "be fair and impartial to both sides." Id. The juror's negative experiences with law enforcement centered around two incidents. The first was his cousin being killed by gang members in which he claimed officers left his relative on the ground for two hours before checking on him and did not handle the case properly treating his family like "gang members" because they all lived in the same neighborhood noting his cousin was not in a gang. Secondly, the juror indicated when he was 12 or 13 years old playing basketball with friends, the police pulled up for no apparent reason telling the children to put their hands on the "hot hood" of their car. The officers then "beat the children's hands with a flashlight when they tried to move." The juror indicated this made him "bitter" towards law enforcement. Id. The prosecutor cited to the juror's negative feelings and experience to justify the peremptory challenge. The Court of Appeal agreed with the defense that the reasoning for excusal was presumptively invalid under California Code of Civil Procedure 231.7(e) indicating there were only two in depth opinions on the subject referring to Jimenez and Uriostegui. Gonzalez at 8. The court noted the record did not indicate any attempts by the prosecutor to remove any other African American jurors and the prosecutor had actually objected to the defense attempting to excuse someone from the same cognizable group. After analyzing those cases and applying them to the facts of the case at hand, the court concluded the prosecution had proven by clear and convincing evidence that "under the totality of circumstances . . . there is no substantial likelihood that an objectively reasonable person would view cognizable group membership as a factor in the prosecutor's use of the peremptory challenge . . ." Gonzalez at 12. This seemed to reinforce the decision in Jimenez indicating a moving party can use the presumptively invalid reason, such as negative experience with law enforcement, to overcome the presumption. Interestingly, the court in Gonzalez, did not discuss People v. Jaime, 91 Cal.App.5th 941 (2023), which predated the decision and appears to come to a different result.
In People v. Jaime, 91 Cal.App.5th 941 (2023), the Court of Appeal for the Third District reversed and remanded a matter after conviction ruling a prosecutor used a presumptively invalid reason to exclude a juror. In the Jaime case, the preliminary issue became whether the defense had forfeited an objection under California Code of Civil Procedure § 231.7 because their objection was based on the Batson/Wheeler rubric. The court noted it was not waived and stated the People provided no statements to rebut the presumptively invalid reason but just stated the juror's negative experience with law enforcement and close relationship to people who have committed crimes was enough to establish bias. Attempts by the prosecutor to use the presumptively invalid reason to justify excusal were not allowed by the court with the court stating "[a]llowing a party to use the presumptively invalid reason to overcome the presumption would render § 231.7, subdivision (e) meaningless." Jaime at 947. It could be argued that there appears to be a potential conflict with the courts in Jimenez and Gonazlez who allowed the moving party to use the presumptively invalid reason to overcome the presumption while the Jaime court indicates such reasoning would render the statue useless.
Conclusion
The aim of eliminating all actual and implicit bias in the selection of juries is of the utmost importance to the integrity of the judicial system as a whole. The question is how, with consideration of constitutional principles, is this accomplished? Progress has been made over the past many decades to address biased jury selection including Batson and Wheeler themselves as well as California Code of Civil Procedure § 231.7. Justice Marshal, in his dissent in Batson, stated that their decision "will not end the racial discrimination that peremptories inject" with that only being accomplished by "eliminating peremptory challenges entirely." Batson v. Kentucky, 476 U.S. 79, 102-103 (1986). The State of Arizona took such a step in 2021 when it eliminated peremptory challenges in both criminal and civil trials by amending its existing procedural rules. See Rules 18.4 and 18.5 of the Arizona Rules of Criminal Procedure and Rule 47 of the Arizona Rules of Civil Procedure. While that approach may be a drastic measure for some, the question for California is whether California Code of Civil Procedure § 231.7 has taken the appropriate steps to accomplish its goals or is further action necessary to ensure the selection of jurors without bias while upholding the rights of the parties.