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Court of Appeal:
Inattentiveness Remains Valid Reason to Strike Juror
Gilbert Says for Majority No Attorney Would Fail to Dismiss Panelist Despite Factor Being Presumptively Invalid Under Racial Justice Act; Yegan, in Concurrence, Bemoans Provision, Cody Dissents
By Kimber Cooley, associate editor
If a trial judge confirms the lack of focus by a prospective juror, inattention remains a sufficient reason for the exercise of a peremptory challenge regardless of whether the prosecutor explains why the distracted demeanor matters to the resolution of the case, despite legislation providing that it is presumptively invalid as a proxy for discriminatory intent without such an explanation, Div. Six of this district’s Court of Appeal held yesterday.
At issue is Code of Civil Procedure §231.7, enacted as part of the Racial Justice Act of 2020. The section provides that “[a] party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.”
Sec. 231.7(g) lists certain factors—including inattentiveness—as presumptively invalid as they have “historically been associated with improper discrimination in jury selection.” The presumption may only be overcome if “the trial court is able to confirm that the asserted behavior occurred” and the attorney exercising the challenge offers an explanation as to “why the asserted demeanor…matters to the case to be tried.”
Challenging his conviction based on §231.7 was Joel SanMiguel, who was convicted of first-degree attempted murder for the Jan. 8, 2022 beating of Rosario Soto at a homeless encampment in Thousand Oaks known as the “Jungle.”
Jury Selection
During jury selection, prospective juror S.M. identified himself with a Hispanic surname and said he was a college student studying film. After the prosecutor exercised a peremptory challenge to excuse him, defense counsel objected based on §231.7, pointing out that SanMiguel is of Latino descent and saying that the challenged juror was the only Latino man left on the panel.
The prosecutor justified the strike by saying S.M. seemed less attentive than other prospective jurors based on limited eye contact, looking down, and walking back into the courtroom when the jury had already been excused.
Ventura Superior Court Judge Ryan Wright denied the objection, saying:
“I did notice that too, that [S.M.] has a very flat affect, and he is looking down most of the time. He is not responding to questions the same way everybody else does….[H]e’s not making eye contact at all. He was doing the same thing with the Court.”
Presiding Justice Arthur Gilbert authored the opinion affirming the judgment, finding that the presumption was overcome and saying that “[n]o matter what a person’s background, race, or economic standing, if the juror does not pay attention, the juror does not belong on any jury.”
Justice Kenneth Yegan joined in the opinion but wrote separately to object to the strict methodologies required by §231.7 as unconstitutional infringements on the judiciary by the legislative branch. Dissenting, Justice Tari L. Cory said the prosecutor’s failure to explain why S.M.’s allegedly inattentive behavior mattered meant that the presumption could not be overcome.
Overcoming Presumption
Gilbert noted the statutory framework for overcoming the presumption and pointed out that Wright made note of S.M.’s inattentiveness. The presiding justice wrote:
“As the People point out, both the prosecutor and the trial court noted how different S.M. acted from the other jurors. That he walked back in the courtroom when the other jurors had been excused caught the attention of both the prosecutor and the judge. His response to questions was noticeably different than that of other jurors. In this instance, to attribute his dismissal to a lack of sensitivity to characteristics of his ethnicity could well be insulting to S.M.”
Turning to the lack of an explanation by the prosecutor, Gilbert said:
“[O]ne may wonder why behaviors like inattentiveness would require further explanation. And we acknowledge that the prosecutor and trial court could have made a more extensive and thorough inquiry. Nevertheless, we think reversal is unwarranted.”
He continued:
“S.M.’s lack of attention alone was a sufficient reason for his dismissal. It overcomes the presumption of invalidity under section 231.7, subdivision (g)(2). The peremptory challenge here was unrelated to a conscious or unconscious bias. The prosecution had a legitimate reason to be concerned about S.M.’s ability to be ‘fair and impartial.’ ”
The jurist added:
“We appreciate the Legislature’s concern relating to the problem of bias, whether explicit or implicit. Nevertheless, 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.”
Cody’s Dissent
Cody took issue with the absence of explanation by the prosecutor as to why S.M.’s demeanor mattered, saying:
“I disagree…with the majority’s conclusion that the presumption of invalidity was overcome….The prosecutor never explained why S.M.’s behavior ‘matter[ed] to the case to be tried.’….Section 231.7…expressly requires such an explanation to rehabilitate a presumptively invalid reason.”
She reasoned that “[b]ecause the prosecutor failed to explain why S.M.’s behavior mattered in this case, I must treat as conclusive the presumption that he was excused for invalid, discriminatory reasons” and said that “[t]he prosecutor’s remaining reasons for challenging S.M. are unsupported by the record or are otherwise unpersuasive.”
The justice noted that “[o]ne may well wonder why behaviors like inattentiveness would require further explanation” but declared that “[o]ur function, however, is not to evaluate the wisdom of the Legislature’s choices.”
Yegan’s View
Yegan wrote that he “fully concur[red]” in the “well-written opinion” but said that he “would go further and declare the methodology of Code of Civil Procedure…section 231.7, subdivision (j) unconstitutional.”
Subdivision (j) calls for de novo review and provides:
“The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.”
Saying that this provision amounts to “tell[ing] judges how to judge,” Yegan wrote:
“[T]he Legislature dictates, in the context of empaneling a criminal jury trial, that the dismissal of a juror for perceived racial basis, is to be viewed wearing ‘horse blinders.’ The ‘micromanagement’ of C.C.P. section 231.7, subdivision (j) violates separation of powers jurisprudence. It is akin to statute telling a plumber how much torque is required when using a pipe wrench.”
The case is People v. SanMiguel, 2024 S.O.S. 3474.
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