People v. Hutchins

Opinion

Appellant Clifton Hutchins argues the trial court applied an incorrect legal standard to determine whether a peremptory challenge was based on purposeful race discrimination, resulting in violations of People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler)

I

n September 2005, the trial court held voir dire proceedings. When the People exercised a peremptory challenge to excuse a Black juror, appellant objected based on Wheeler. Finding that appellant had made a prima facie showing of purposeful race discrimination, the court asked the prosecutor her reasons for excluding the potential juror. The prosecutor explained that the potential juror was excused because she had been on a hung jury, and stated, “I don’t keep jurors who are on hung jur[ies].” To support her position, the prosecutor pointed out that she also had excused another potential juror who had been on a hung jury. After a lengthy dialogue with counsel, the court stated, “I’m really troubled by the fact that the People would exercise a peremptory challenge on the one Black female that’s on a [panel], and the only reason being, that juror has been on a deadlocked [jury] before. You can provide me with some authority that is a permissible, nondiscriminative basis upon which to exclude a witness. I will read that authority. Otherwise, I’m inclined to grant the motion and to disallow the peremptory challenge on the basis that I believe it was motivated for racial purposes.”

The next day, the People filed a written opposition to the Wheeler motion and appellant filed a written motion to quash the jury panel and support his Wheeler arguments. The court heard further arguments on the matter and concluded that because the prosecutor also had excused another potential juror who had been on a hung jury, “I cannot say there has been proof of racial discrimination in the People’s utilization of the peremptory challenges by clear and convincing evidence. That is the standard that was set forth by the Supreme Court in [Miller-El v. Dretke (2005) 545 U.S. 231 [ 162 L.Ed.2d 196 , 125 S.Ct. 2317 ]].”

“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. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]” (People v. Avila (2006) 38 Cal.4th 491 , 541 [ 43 Cal.Rptr.3d 1 , 133 P.3d 1076 ].) When a defendant believes his or her constitutional rights are being violated by the exercise of a peremptory

Appellant argues that because the court used the incorrect “clear and convincing evidence” standard in deciding the Wheeler motion, his conviction must be reversed based on Wheeler and Batson error. We agree that the opponent of a peremptory challenge generally does not have the burden of proving purposeful race discrimination by clear and convincing evidence. Although the trial court cited Miller-El v. Dretke, supra, 545 U.S. 231 , its reliance on that case was misplaced. That case involved “review of a denial of habeas relief sought under 28 U.S.C. § 2254 , following the Texas trial court’s prior determination of fact that the State’s race-neutral explanations were true . . . . ” (Id. at p. 240.) The United States Supreme Court stated that “[u]nder the Antiterrorism and Effective Death Penalty Act of 1996, Miller-El may obtain relief only by showing the Texas conclusion to be ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ 28 U.S.C. § 2254 (d)(2). Thus we presume the Texas court’s factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness by clear and convincing evidence.’ § 2254(e)(1).” (Ibid., italics added.) The standard set out in Miller-El v. Dretke does not apply here because this case does not fall under the AEDPA (Antiterrorism and Effective Death Penalty Act of 1996).

We have found no California case law explicitly holding that the burden of the party opposing a peremptory challenge is preponderance of evidence. But preponderance of evidence is the general standard of proof in this state. Section 115 of the Evidence Code states: “Except as otherwise

The People argue that even if the court applied the wrong standard, the record supports a finding that the prosecutor’s exercise of a peremptory challenge was race-neutral. They also argue that because the court made a “sincere and reasoned” evaluation, the court’s ruling should not be disturbed. The record, however, does not indicate whether the trial court would have granted appellant’s Wheeler motion if it believed the burden of proving purposeful race discrimination was a preponderance of evidence, rather than clear and convincing evidence.

On remand from the United States Supreme Court, the California Supreme Court, in People v. Johnson (2006) 38 Cal.4th 1096 , 1103-1104 [ 45 Cal.Rptr.3d 1 , 136 P.3d 804 ], held that where the trial court had erred in its decision regarding the first Batson step, and for that reason had not reached the other two, it was proper to remand the case to the trial court for further proceedings. “Ordinarily, factors to be considered in determining whether remand is appropriate are the length of time since voir dire, the likelihood that the court and counsel will recall the circumstances of the case, the likelihood that the prosecution will remember the reasons for the peremptory

Willhite, J., and Manella, J., concurred.

Appellant’s petition for review by the Supreme Court was denied May 9, 2007, S151359.