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People v. Douglas

California Court of Appeals, Third District, Yolo

May 3, 2018

THE PEOPLE, Plaintiff and Respondent,
BRADY DEE DOUGLAS, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of Yolo County No. CRF120516, Paul K. Richardson, Judge. Reversed.

          Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant.

          Durie Tangri, Sonali D. Maitra, for Amici Curiae Equality California, Lambda Legal, and the National Center for Lesbian Rights, on behalf of Defendant and Appellant.

          Albert J. Menaster, for Amicus Curiae Los Angeles County Public Defender's Office, on behalf of Defendant and Appellant.

          Xavier 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.

          Duarte, J.

         This 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.


         After 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 several times.

         A jury 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 years.[1]

         On 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.

         We 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.[2]

         We now 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.


         An information jointly charged defendant and Sharpe with various counts.

         During 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.

         J. had 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.

         After 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 fair.”

         The 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.

         When 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.[3]

         The prosecutor then gave his reasons for striking these two prospective jurors.

         The 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.”

         The 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 descriptive.

         The prosecutor then added the following rationale about both men:

         “In 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.

         “So 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.)

         To this explanation, Sharpe's counsel responded that “[u]nder that justification, anyone who is openly gay” would automatically be challenged.

         The trial court denied the defense motion, questioning in passing whether a Wheeler motion based on sexuality discrimination was appropriate.

         Citing 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.


         Defendant 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.


         General Principles for Evaluating Peremptory Challenges

         Both 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 p. 898.)

         Although 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[4] [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.

         To 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 ...

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