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Court of Appeal:
Peremptory Challenge for Being ‘Opinionated’ Was Pretext
Presiding Justice Judith McConnell’s Opinion Says No Evidence Suggests That Potential Juror, Who Was One of Two Venire Members Who Are Black, She Was More Assertive Than the Others
By Kimber Cooley, Staff Writer
Div. One of the Fourth District Court of Appeal held yesterday that a prosecutor’s justification for dismissing one of only two Black prospective jurors because the person was “too opinionated” was pretextual and violated constitutional prohibitions on race-based strikes where the woman in question made no comments to suggest that she was more assertive than others.
The court also found that the additional reason cited for dismissal—that the potential juror’s prior felony convictions for grand theft and perjury created negative experiences with the justice system—was also problematic following the passage of legislation allowing felons to serve on juries.
Presiding Justice Judith McConnell authored the opinion reversing the judgment of conviction by Riverside Superior Court Judge Stephen J. Gallon and remanding for a new trial. Justice David M. Rubin joined in the opinion and Justice Terry B. O’Rourke concurred in the result.
Appealing his conviction was Travis Hicks, who was found guilty of attempted murder and assault with a semiautomatic firearm stemming from a February 2018 shooting of a man identified as A.B. in the parking lot of the S. Bar & Grill in Moreno Valley.
Constitutional Right
Hicks, who is Black, argues that the dismissal of the juror violated his right to a trial by jury drawn from a representative cross-section of the community under the California Constitution and his right to equal protection under the Fourteenth Amendment to the U.S. Constitution.
To determine if a peremptory challenge is racially-neutral, courts conduct a three step-inquiry—the opponent of the strike must first make a prima facie showing of discriminatory purpose, the proponent then offers non-discriminatory reasons for the dismissal, and finally the court must decide whether the strike was racially motivated.
McConnell noted that “the court implicitly found Hicks established a prima facie case of racial discrimination” by requiring the prosecutor to state her reasons for the challenge and said “[w]e, therefore, proceed to the third step of the…inquiry.” The jurist pointed out that the issue at the third-stage is whether the prosecutor’s race-neutral explanations are credible.
Too Opinionated
The jurist remarked that “[t]he…perhaps primary[] reason provided by the prosecutor in support of the challenge was that the juror was ‘too opinionated’ ” and agreed with Hicks that having a “problematic attitude” has been historically associated with improper discrimination.
McConnell noted that Code of Civil Procedure §231.7, effective Jan. 1, 2023, is instructive though not applicable to the 2022 trial in the present case. The section provides that a peremptory challenge based on “[t]he prospective juror exhibit[ing] either a lack of rapport or problematic attitude, body language, or demeanor” is presumptively invalid.
Record Examined
Looking to the record in this case, she said:
“Although the prosecutor stated his view that the juror would be too opinionated because of her experience with the justice system, there is no evidence of this character trait in the record. During voir dire, the juror expressed that she could remain neutral and had experience doing so as a prison nurse. In addition, the juror made no comments that suggested she was more opinionated than other jurors who remained on the jury. For example, Alternate Juror 1 expressed an opinion in favor of law enforcement and showed a strong opinion of how jurors should behave.”
She continued:
“The challenged juror, in contrast, made no statement in favor of the defense or the prosecution, and stated only that she would judge the case on the evidence presented. This discrepancy in treatment suggests that the peremptory challenge at issue here was pretextual.”
She added that “the trial court accepted the prosecutor’s stated reasons without itself discussing the juror’s demeanor or testimony during voir dire, leaving this court with no basis to evaluate whether such factors were relevant to its decision to deny Hicks’s…motion.”
Prior Felony Convictions
McConnell evaluated the prosecutor’s suggestion that the juror’s two prior felony convictions were negative experiences that impacted the potential panel member’s ability to be impartial in light of Senate Bill 310, effective Jan. 1, 2020. The bill amended Code of Civil Procedure §203 to allow prior felons to serve on juries so long as they are not currently incarcerated, on parole or other supervision, or required to register as a sex offender. Prior to its enactment, felons were prohibited from service.
She acknowledged that “while the juror was not prohibited from serving on the jury because of her prior felony conviction, the prosecutor was also not prohibited from exercising a peremptory challenge to dismiss her so as long as it was not based on group bias.”
Turning to the prosecutor’s remarks, she said:
“Contrary to the People’s assertion, there was no evidence in the record to support the trial court’s finding that the juror’s conviction clouded her ability to serve. Rather, during voir dire of the juror in the judge’s chambers, she explained that the only negative aspect of experience was the simple fact that she had been convicted of a felony. Specifically, the juror explained that on her juror questionnaire she wrote that ‘justice was served’ for her and….‘it has no bearing on the case.’ ”
No Basis
The presiding justice declared:
“While we are mindful that we must always defer to the trial court’s credibility determinations, nothing stated by the juror during voir dire or by the court or counsel provides any basis to support the court’s finding that the juror’s experience as a convicted felon would interfere with her jury service. Notably, nothing in the record identified any characteristic that was observed by the court or counsel to support its finding that the challenge was race neutral. To the contrary, during voir dire the juror stated multiple times that she could remain impartial and that her experience with the justice system in different capacities improved her ability to be neutral and unbiased.”
McConnell said in a footnote that the prosecutor’s acceptance of the other Black juror lessens the inference of discrimination, but “accepting one juror of a particular group does not necessarily mean another juror of the same group was not dismissed due to membership in the same group.”
The case is People v. Hicks, 2024 S.O.S. D081981.
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