California Court of Appeals, Third District, Yolo
from a judgment of the Superior Court of Yolo County No.
CRF120516, Paul K. Richardson, Judge. Reversed.
D. C. Manjarrez, under appointment by the Court of Appeal,
for Defendant and Appellant.
Tangri, Sonali D. Maitra, for Amici Curiae Equality
California, Lambda Legal, and the National Center for Lesbian
Rights, on behalf of Defendant and Appellant.
J. Menaster, for Amicus Curiae Los Angeles County Public
Defender's Office, on behalf of Defendant and Appellant.
Becerra, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez, Kari Ricci Mueller, Deputy
Attorneys General, for Plaintiff and Respondent.
case is about fairness and equality in our criminal justice
system. When a party exercises a peremptory challenge against
a prospective juror for an invidious reason, the fact that
the party may also have had one or more legitimate reasons
for challenging that juror does not eliminate the taint to
the process. We reject the application in these circumstances
of the so-called “mixed motive” or “dual
motive” analysis, which arose in employment
discrimination cases as a way for defendant-employers to show
that they would have taken an adverse action against a
plaintiff-employee whether or not an impermissible factor
also animated the employment decision. We hold it is not
appropriate to use that test when considering the remedy for
invidious discrimination in jury selection, which should be
free of any bias.
defendant Brady Dee Douglas's former boyfriend, a male
prostitute, told him victim Jeffrey B. had shorted him money
following a prearranged sexual encounter, defendant and
codefendant Clifton Damarcus Sharpe tracked down Jeffrey and
demanded payment. During a high-speed freeway chase,
defendant pointed a gun at Jeffrey and shot at his car
found defendant guilty of attempted second degree robbery,
assault with a semiautomatic firearm, shooting at an occupied
vehicle, exhibiting a firearm against a person in a vehicle,
and carrying a loaded firearm with intent to commit a felony,
and found true certain firearm enhancements. (Pen. Code,
§§ 664/211, 245, subd. (b), 246, 417.3, 12022,
subd. (a)(1), 12022.5, subd. (a); former § 12023, subd.
(a).) The trial court sentenced defendant to prison for six
appeal, defendant contends the trial court erred in denying
his Batson/Wheeler motion after the
prosecutor peremptorily excused the only two openly gay
prospective jurors. (See Batson v. Kentucky (1986)
476 U.S. 79');">476 U.S. 79');">476 U.S. 79');">476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).) He
also argues the trial court erroneously instructed the jury
with CALCRIM No. 460, the pattern jury instruction for
attempt, which he asserts is unconstitutionally vague and
impermissibly creates a mandatory presumption of intent.
initially rejected defendant's instructional challenge,
but found the trial court did not properly evaluate
defendant's Batson/Wheeler motion. We ordered a
remand for the trial court to apply a mixed-motive analysis
to the prosecutor's proffered reasons to determine
whether those veniremen would have been challenged regardless
of their sexuality. We then granted defendant's rehearing
petition and obtained supplemental briefing by the parties
and by amici curiae.
reverse for a new trial before a jury uninfected by
discrimination. In light of this holding, we need not address
defendant's instructional challenge again.
information jointly charged defendant and Sharpe with various
jury selection, the prosecutor and defense attorneys asked
the prospective jurors questions about their feelings or
perceptions about homosexuality. No one on the venire
responded that she or he would have a problem deciding the
case based on the facts. Two veniremen, J. and L., were
openly homosexual and lived with their partners.
a doctorate in science, and was friends with a local deputy
public defender. They had had lunch the previous day, and J.
had recently attended her baby shower. He saw her about once
a week, she had visited his home, and she had discussed her
work with him. She talked to J. about local deputy
prosecutors and public defenders, but not about the
prosecutor in this case. She told J. “she would never
go to the dark side, ” meaning become a prosecutor. J.
said he could make a decision based on the facts of the case.
J. conceded he was biased against firearms and thought the
Second Amendment should be repealed, but said his personal
views about firearms would not prevent him from following the
judge's instructions. After the prosecutor probed the
topic of firearms further, J. said he had no other biases:
“No, I think that's about it, you know, based on
what I know about this case, that would be [the] only
thing.” He was then reminded by the prosecutor that he
would need to examine “all the evidence together”
and asked, “you are comfortable with that only bias
that you [sic] had indicated was the issue with the second
amendment..., correct?” J. answered: “Yes,
that would be absolutely correct.” (Italics
added.) A short time later, the prosecutor exercised a
peremptory challenge against him.
seven other prospective jurors were questioned and some were
challenged by different sides, L. was questioned. He had
graduated from high school and owned a travel agency. He said
there was “absolutely no reason why [he could not] be
prosecutor asked whether L. could listen to testimony from a
witness who visited a male prostitute and judge that
person's credibility fairly. L. said he
“definitely” could do so without prejudging the
witness. L. responded “no” when asked whether he
believed that persons engaged in illegal activities deserved
what they get. He said “yes” when asked whether
he could share his opinion about the facts of the case, work
with others in applying those facts to the law, and use
common sense to reach a decision.
the prosecutor challenged L., codefendant Sharpe's
counsel made a Wheeler motion, arguing the
prosecutor systematically used peremptory challenges to
excuse the only two openly gay men in the venire.
Defendant's counsel joined the motion. The trial court
“at this point” found sexuality was a protected
category and considered the motion.
prosecutor then gave his reasons for striking these two
prosecutor said he challenged J. because of J.'s close
relationship with a public defender, particularly because she
had discussed the personality traits of local prosecutors
with J. and told J. she considered prosecutors to be on
“the dark side.”
prosecutor said he challenged L. based on demeanor, stating
that when defendant's counsel got up, L. leaned forward
and seemed more attentive, but when the prosecutor spoke, L.
leaned back and gave answers that were short and not
prosecutor then added the following rationale about both men:
addition, in a case in which the victim in the case is in a
relationship and is not in a relationship with a female but
is not out of the closet and actually was untruthful with the
police about the extent of his relationship with a male
prostitute, I think that that particular [persons']
testimony may be viewed with bias [by] those who are willing
to be openly gay and not -- not lie about it and can be
frank about it, and he would view that as a negative
character trait, and an individual who attempts to maintain
given whatever grave idea, sexuality he has, but is willing
to lie about it.
I think there is a number of reasons, both specific to the
case that are sexuality neutral, not -- I'm not asserting
[sic, conceding?] in any way that is an adequate
basis for [a] Wheeler motion, but even given that I think
there are [bases] not only in their reaction in court in
answering questions, but also given the specific facts of
this case.” (Italics added.)
explanation, Sharpe's counsel responded that
“[u]nder that justification, anyone who is openly
gay” would automatically be challenged.
trial court denied the defense motion, questioning in passing
whether a Wheeler motion based on sexuality
discrimination was appropriate.
J.'s relationship with the public defender and her
“dark side” comment about prosecutors, the trial
court found the prosecutor's challenge to J. was
justified. As for L., the trial court accepted the
prosecutor's demeanor-based rationale for the challenge.
Because the trial court made no response to Sharpe's
counsel's pointed objection, we presume the trial court
simply found the facially non-discriminatory reasons were
sufficient and had no need to address the effect of the last
reason. In effect, that was the rough equivalent to applying
a mixed-motive analysis to the challenges.
contends the trial court erred in denying his
Batson/Wheeler motion because, in his view, the
prosecutor impermissibly excused two openly gay jurors based
on unsupported assumptions predicated on their sexual
orientation. We agree.
Principles for Evaluating Peremptory Challenges
the state and federal Constitutions prohibit using peremptory
challenges to remove prospective jurors based solely on group
bias. (Wheeler, supra, 22 Cal.3d at p. 272;
Batson, supra, 476 U.S. at pp. 85-88.) “It is
well settled that ‘[a] prosecutor's use of
peremptory challenges to strike prospective jurors on the
basis of group bias-that is, bias against “members of
an identifiable group distinguished on racial, religious,
ethnic, or similar grounds”-violates the right of a
criminal defendant to trial by a jury drawn from a
representative cross-section of the community under article
I, section 16 of the California Constitution.' ”
(People v. Hamilton (2009) 45 Cal.4th 863, 898
(Hamilton); see Wheeler, at p. 272.)
“Such a practice also violates the defendant's
right to equal protection under the Fourteenth Amendment to
the United States Constitution.” (Hamilton, at
the United States Supreme Court has yet to address whether
Batson extends to sexual orientation, the Ninth
Circuit held in SmithKline Beecham Corp. v. Abbott
Labs. (9th Cir. 2014) 740 F.3d 471, 484, that it does,
relying heavily on the high court's decision in
United States v. Windsor (2013) 570 U.S. 744');">570 U.S. 744 [186
L.Ed.2d 808], which held that the Defense of Marriage
Act's definition of marriage as excluding same-sex
partners violated equal protection and due process. (See also
Obergefell v. Hodges (2015) 576 U.S. ___ [192
L.Ed.2d 609] [recognizing a federal constitutional right for
same-sex marriages]; In re Marriage Cases (2008) 43
Cal.4th 757, 840-844 [sexual orientation is a suspect
classification for purposes of California's equal
protection clause].) Our colleagues in the Fourth District
have found that excluding homosexuals on the basis of group
bias violates the California Constitution. (See People v.
Garcia (2000) 77 Cal.App.4th 1269, 1275, 1280-1281.)
Like Garcia and SmithKline, we, too, find
that excluding prospective jurors solely on the basis of
sexual orientation runs afoul of the principles espoused in
Batson and Wheeler.
determine whether a prosecutor impermissibly used peremptory
challenges to remove prospective jurors based on a group bias
such as sexual orientation, courts engage in a three-part
analysis. (See Hamilton, supra, 45 Cal.4th at pp.
899-900.) A defendant must first make a prima facie case by
demonstrating that the facts give rise to an inference of
discriminatory purpose. (See People v. Cornwell
(2005) 37 Cal.4th 50, 66, disapproved on other grounds by
People v. Doolin (2009) 45 Cal.4th 390, 421, fn.
22.) If that showing is made, the burden next shifts to the
prosecution to explain its challenge on the basis of
permissible, group-neutral justifications. (See
Cornwell, at pp. 66-67.) If such an explanation ...