Criminal Appeal

Cal. Supreme Court Upholds Death Sentence Over Kennard's Dissent

The California Supreme Court affirmed the conviction and death sentence of a man found to have murdered and dismembered a woman in order to prevent her from testifying against him in another case.

While Justice Kennard concurred in the portion of the majority opinion upholding the defendant's convictions, she would have reversed the imposition of the death penalty.  In Justice Kennard's view, the fairness of the penalty phase was undermined by two prejudicial errors. 

First, the trial court should have granted defense counsel’s request to ask prospective jurors if they would invariably impose the death penalty in a case involving dismemberment of the murder victim’s body.  At capital sentencing hearings, both sides are entitled to ask questions of potential jurors specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence.  On this point, Justice Kennard took issue with the majority's conclusion that the dismemberment of the victim’s body was not a circumstance that could cause a reasonable juror invariably to vote for death regardless of the strength of the mitigating evidence.

Justice Kennard identifed a second penalty phase error requiring reversal as well.  In closing argument at the penalty phase, the prosecutor quoted passages from the Bible as authority for the death penalty.  Specifically, the prosecutor quoted, among other Bible verses, Genesis chapter 9, verse 6, which reads: “whoever sheds the blood of man, by man shall his blood be shed, for in his image did God make man.”  According to Justice Kennard, a prosecutor’s argument to the jury that the Bible authorizes or demands the death penalty for murder creates the risk that such argument may diminish the jury’s sense of responsibility for its verdict and imply that another, higher law should be applied in capital cases, displacing the law in the court’s instructions.  Justice Kennard acknowledged that the defendant forfeited this argument because of defense counsel's failure to lodge a timely objection, but she would have reached the issue anyway because the failure to object deprived the defendant of the effective assistance of counsel.

The majoirty opinion was authored by Justice Baxter.

People v Zambrano, no. S035368 (Cal. Supreme Ct., filed 7/30/07)

Preponderance Of The Evidence Standard Applies To Final Step Of Wheeler/Batson Analysis

The trial court denied the defendant's Wheeler/Batson motion because it did not find proof of racial discrimination in the People’s utilization of the peremptory challenges by clear and convincing evidence.

Division Four of California's Fourth District Court of Appeal concluded that the preponderance of evidence standard - and not the clear and convincing evidence standard - applies to the final step of a Wheeler/Batson challenge: whether the neutral reasons offered to justify a peremptory challenge are genuine or pretextual.

Becuase the trial court applied the wrong standard in making its ruling, the Court of Appeal remanded so that the trial court may reconsider the third Batson step under the proper legal standard.

The unanimous decision was authored by Presiding Justice Norman L. Epstein.

People v. Hutchins, no. B187104 (Cal.Ct.App. (2nd Dist., Div. 4) filed 2/20/07)

Prosecution Explanation Not Required In Response To Batson/Wheeler Motion In The Absence Of A Prima Facie Case Of Group Bias

The defendant in this case, who was African-American, brought a Batson/Wheeler motion during voir dire after the prosecuting attorney exercised three of four peremptory challenges to excuse African-American prospective jurors. California's Third District Court of Appeal concluded that it was proper for the trial court to require explanations for only two of the three prospective jurors who were the subject of the defendant’s motion.

A trial court may properly determine as to a particular prospective juror that the facts do not permit an inference of discrimination, even as it makes a contrary determination with respect to other prospective jurors. Having determined the facts did not support an inference of discrimination against the third juror in question, the trial court did not err in failing to seek the prosecutor’s reasons for challenging that juror.

The unanimous opinion was authored by Justice Vance W. Raye.

People v. Phillips, no. C050503 (Cal.Ct.App. (3rd Dist.) filed 2/14/07)

Cal. Supremes Affirm Death Sentence

In an opinion authored by Justice Moreno, the Court unanimously affirmed the guilty plea and death sentence in People v. Williams (no. S056391, Cal. Supreme Court, filed Dec. 28, 2006.)  Justice Corrigan filed a brief concurring opinion, joined by Justices Baxter and Chin, in which she expressed caution regarding the majority's Wheeler/Batson analysis.  While she agreed with the majority's assumption, without deciding, that Miller-El compels a comparative analysis of the cold record on review of a Wheeler/Batson challenge, Justice Corrigan voiced concern that a cold record record review is a particularly questionable method of protecting the right to an unbiased jury.

Batson Applied. People v. Overby, no. B166718 (Cal.Ct.App. (2d Dist., Div. 7), June 21, 2004) (partial publ.). Trial counsel's implicit consent to alternate rememdy of re-seating a jury as a remedy for a Batson/Wheeler violation waived right to allege error in failing to declare mistrial and excuse entire venire.

People v. Cottle, no. C043594 (Cal.Ct.App. 6th Dist., filed 6/8/04; pub. 6/21/04): improper denial of request to reopen jury selection after jury was sworn, but before alternates were sworn, is reversible error. (Motion to reopen was based on juror providing additional information, after jury was sworn, about ability to be fair.)

Miller-El is Back in the Supreme Court. This was one of the cases in which the Supreme Court reversed the Fifth Circuit's denial of a certificate of appealability. The Fifth Circuit has since denied relief on the merits and the supreme court has granted cert. on some sort of Batson question. Miller-El v. Dretke, no. 03-9659.

Federal Habeas Partial Relief on Batson Claim: Remand for Evidentiary Hearing on Prosecutor's Reasons for Peremptory Challenges; No Relief on Miranda Claim. Paulino v. Castro, no. 02-55924 (9th Cir., June 14, 2004).

Ninth Circuit found petitioner made a prima facie case of discrimination and state court erred in failing to have prosecutor explain peremptory challenges:

Based on the record as presented to us, Paulino has shown a pattern of strikes that raises a plausible inference of discrimination. Thus, under Batson, he has made a prima facie showing sufficient to require the prosecutor to explain her actual motivations for her peremptory challenges. The trial court never required the prosecutor to do so, relying instead on its own speculation as to what might have been the prosecutor’s reasons. No evidentiary hearing was held below, so the state has never been required to present evidence of the prosecutor’s actual, non-discriminatory reasons for striking the five black jurors. On remand, the district court shall hold a hearing so the state will have an opportunity to present evidence as to the prosecutor’s race-neutral reasons for the apparently-biased pattern of peremptories, and determine whether the prosecutor violated Batson.

AEDPA NOTE: The Ninth Circuit decided the Batson claim de novo. The AEDPA standard of review did not apply because the state court, in applying the work standard, did not decide the Batson claim on the merits.

The Court also rejected a Miranda claim:

The facts of Paulino’s case are likewise distinguishable from Cheely. While Paulino acknowledged his rights and refused to sign a waiver of his right to counsel, he, unlike Cheely, did not explain that refusal. Cheely stated to inspectors that his attorney would not want him to talk to them. Paulino made no similar affirmative statement, and one could reasonably conclude that his ambiguous queries did not clarify his intentions. As Alvarez and Cheely illustrate, we might have reached a different conclusion before AEDPA’s enactment or if Paulino’s appeal had come to us on direct review. Nevertheless, these cases are distinguishable, and under the con-straints of the current habeas statute, we cannot say that the state court of appeal was objectively unreasonable in its conclusion that Paulino failed to unambiguously request counsel.

Review Granted on Additional Batson Issues. People v. Ibarra, no. S124067

The Court of Appeal (4th Dist., Div. 2), in an unpublished decision, reversed the appellant's conviction for several errors in the trial court's rulings on Batson motions. First, the trial court erred in requiring the moving party to show systematic discrimination in order to make out a prima facie case of discriminatory use of peremptory challenges. Second, the trial court erred, after finding a prima facie on one motion, erred in resuming jury selection before hearing the prosecutor's explanation for the challenge to the juror. Third, once the prima facie case of group bias was made out, the trial court erred in failing to require the prosecutor to explain the challenges to all the members of that group, not just the juror that was the subject of the peremptory challenge that was the subject of the Batson motion. (This latter issue is also raised in People v. Robinson, mentioned in the immediately preceding post.) Finally, the court of appeal ruled that a remand to permit the prosecutor to explain the challenges would be futile and thus an inadequate remedy; retrial granted.

We'll have to wait until the end of the week, when the court issues its weekly summary, to know the precise issues to be reviewed.

Review Granted on Batson Question. In People v. Robinson, no. S123938, the California Supreme Court denied the defendant's petition for review, but granted the state's petition, limited to the following Batson question: "Where the trial court found a prima face case of Wheeler/Batson error with regard to the third African-American potential juror removed by the prosecutor by peremptory challenge [citation], was the court required to obtain the prosecutor's reasons for removing each of the three African-American potential jurors or could the court limit its inquiry to the prosecutor's reasons for the third challenge?" (Question presented taken from Supreme Court docket.)

The Court of Appeal (2d Dist.; Div. 7), in People v. Robinson, no. B149425 (partially published)---on remand from the California Supreme Court in light of People v. Yeoman, 31 Cal.4th 93 (2003)---reversed the judgment in this murder case, finding that the trial court had held an inadequate hearing upon a defense claim of improper prosecutorial use of peremptory challenges. The defendant argued that the prosecutor had excused a potential juror because of her religious beliefs. The court of appeal concluded that, as to the specified juror, the prosecutor gave a valid reason for the challenge and there was no error. But the trial court erred in failing to require the prosecutor to give reasons for challenges to other challenged potential jurors

In the Court of Appeal, Ralph H. Goldsen represented the defendant-appellant and Deputy A.G. Susan Lee Frierson represented the state.

Court DIGS Johnson! There will be no answer this term as to whether California's standard for a prima facie showing of discriminatory use of peremptory challenges satisfies federal constitutional standards. In a per curiam order issued this morning, the U.S. Supreme Court dismissed review in Johnson v. California, no. 03–6539. As the Court saw it, the case was not final in that there were still unresolved claims to be decided by the California Court of Appeal. Because Johnson had prevailed in the court of appeal, that court did not resolve all of his claims:

In the unpublished portion, the court briefly addressed petitioner’s evidentiary claims to provide guidance for the trial court on retrial, and noted that it would not address whether petitioner’s objections were properly preserved or consider petitioner’s prosecutorial misconduct claim.

As the U.S. Supreme Court noted, the case could come back if the state court of appeal rejects Johnson's remaining claims, the state supreme court denies review, and Johnson petitions for certiorari. In any event, the issue will come back. Both Johnson and the state urged the Court to grant certiorari in this case. Given that the Ninth Circuit are at odds on this question, everyone wants an answer.

See my previous post on this case for a link to the oral argument transcript.

Remand Required for New Wheeler/Batson Hearing. In People v. Robinson, no. B149425 (partially published), the California Court of Appeal (2d Dist.; Div. 7)---on remand from the California Supreme Court in light of People v. Yeoman, 31 Cal.4th 93 (2003)---reversed the judgment in this murder case, finding that the trial court had held an inadequate hearing upon a defense claim of improper prosecutorial use of peremptory challenges. The defendant argued that the prosecutor had excused a potential juror because of her religious beliefs. The court of appeal concluded that, as to the specified juror, the prosecutor gave a valid reason for the challenge and there was no error. But the trial court erred in requiring the prosecutor to give reasons for challenges to other challenged potential jurors:

once the trial court has found a prima facie case of improper use of peremptory challenges to exclude jurors based on perceived group bias, the burden shifts to the prosecutor to provide race-neutral explanations for all challenges involved and for the court to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known.

On remand, the trial court will conduct the hearing it should have held during jury selection. If the hearing cannot be recreated, the convictions will be vacated. (Such relief is part of a trend in which appellate courts order the trial courts to attempt hearings that should have been held years earlier. Whether it's determining a party's reason for challenging a juror (Batson/Wheeler), whether a defendant was entitled to substitute counsel (Marsden), or whether the defendant was competent to stand trial (PC 1368), this is a pretty tall order and surely a futile gesture in many, if not most, cases.)

In the published portion of the opinion, the court of appeal also found no error in the trial court's ruling that the prosecutor could examine a defense witness---called by the defense to testify to an admission by a potentially liable third party---about out-of-court statements the defendant made in the witnesses presence.

Batson Reversal: DA Gave Meaningless Explanation for Excusing Juror

On remand from the California Supreme Court for reconsideration in light of People v. Reynoso (2003) 31 Cal.4th 903, the California Court of Appeal (1st Dist., Div. 3), reached the same result it had the first time around, and held that trial court erred in accepting the prosecutor's "meaningless explanation" for removing an African-American juror from the jury. This was per se reversible error. Here is the prosecutor's meaningless explanation:

“The first woman, her very response to your answers, and her demeanor, and not only dress but how she took her seat. I don’t know if anyone else noticed anything but it’s my experience, given the number of trials I’ve done, that that type of juror, whether it’s a personality conflict with me or what have you, but they tend to, in my opinion, disregard their duty as a juror and kind of have more of an independent thinking.”

Click here to read the unanimous opinion in People v. Allen, no. A093927, authored by Justice Stuart R. Pollak.

Batson Revisited

Today, in Williams v. Rhoades, the Ninth Circuit affirmed the denial of a habeas petition filed by a California inmate claiming the prosecutor used race as a factor in exercising a peremptory challenge to excuse an African American juror. In an opinion authored by Judge Farris, the Ninth Circuit held that:

The California Court of Appeal reasonably applied federal law and reasonably interpreted the facts in holding (1) that the prosecutor proffered race-neutral reasons for striking Juror X, (2) that the Batson framework had been properly applied by the trial court, and (3) that Williams failed to meet his ultimate burden of proving that the prosecutor was motivated by Juror X’s race in using a peremptory challenge to remove her from the jury panel.

In other Batson news, the Recorder is reporting on Johnson v. California, in which the U.S. Supreme Court will decide this term (argument scheduled for March) the quantum of proof required to make out a prima facie case of racial basis in the exercise of peremptory challenges. In Johnson, the California Supreme Court reiterated a test it has used in earlier cases, requiring the objecting party to show a "strong likelihood" that the challenge to the juror was racially motivated. People v. Johnson, 30 Cal.4th 1302 (2003). Batson itself, however, required only "a reasonable inference" of racial bias. To read the Recorder article, click here (subscription required). Interestingly, the U.S. Supreme Court, in granting certioari, limited the questions to be presented to the "strong likelihood' v. "reasonable inference" question. The Court, apparently, is not interested in deciding another issue presented in Johnson: whether a reviewing court may compare the circumstances of the challenged juror to the cirumstances of other jurors in the pool. California has steadfastly held that juror comparison is not permitted. Other jurisdictions say otherwise. Perhaps the U.S. Surpeme Court does not see this as an issue worthy of briefing, given the matter-of-fact way it conducted juror comparison in another Batson case last year: Miller-El v. Cockerell.