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C.A.: Counsel Violated Law by Disqualifying White Prospective Juror Without Justification
By Kimber Cooley, associate editor
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ROBERT HINOJOS convicted killer |
Div. Seven of this district’s Court of Appeal has upheld the special-circumstances murder conviction of a man accused of killing in order to gain initiation into the Mexican Mafia organization, finding that Los Angeles Superior Court Judge Curtis B. Rappé did not err in ruling that defense counsel’s use of a peremptory challenge to excuse a white potential juror violated provisions of a 2021 law designed to address implicit bias in jury selection.
At issue is an application of Code of Civil Procedure §231.7, created through enactment in 2020 of AB 3070, introduced by then-Assembly member Shirley Weber, D-San Diego (now serving as California’s secretary of state). It came as part of a larger legislative effort to reduce the impact of racial discrimination in the criminal justice system.
The section, effective as of Jan. 1, 2021, provides in relevant part:
“A party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity,…or the perceived membership…in any of those groups.”
Subdivision (d) specifies:
“The court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances….If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity,…or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. The court need not find purposeful discrimination to sustain the objection.”
Appealing his conviction was Robert Hinojos, who was found guilty in 2022 of killing Hector Velasquez in a drive-by shooting on May 13, 2016. The jury also found true the special circumstance that the murder was accomplished by firing a gun from a motor vehicle.
Voir Dire
During voir dire, Juror 10, who identified himself as a white banker on the panel questionnaire, had indicated, upon questioning, that “I do believe that we must presume someone innocent” and indicated that he had no prejudice against the defendant having a bald head and tattoos.
After defense counsel, Marvin Vallejo, used peremptory challenges to kick several white and Hispanic potential panelists, he attempted to exercise another to dismiss Juror 10. Los Angeles Deputy District Attorney Amy Murphy objected based on §231.7.
Vallejo said he thought the juror was Hispanic and exercised the peremptory challenge because he had not questioned the panelist about his views on gangs. Unpersuaded, Rappé sustained the objection, saying:
“To state that your failure to question would justify exercise [of] a peremptory challenge leaves me no other conclusion than it was done for race, whether conscious or subconscious or implied….
“I do make the finding that there is a substantial likelihood an objectively reasonable person would view race…, specifically White, for the use of the peremptory challenge, and I am sustaining the objection.”
As a remedy, Juror 10 was seated on the jury.
The jury convicted Hinojos of murder, an act Murphy characterized as being motivated by the defendant’s desire to be accepted into membership in the Mexican Mafia, and Rappé sentenced him to life in prison without the possibility of parole.
In Tuesday’s opinion, authored by San Diego Superior Court Judge Michael P. Pulos, sitting on assignment, and joined in by Acting Presiding Justice John L. Segal and Justice Gail Ruderman Feuer, the court held:
“As a matter of first impression, we determine the trial court’s sustaining of a section 231.7 objection raises a mixed question of law and fact, which we review de novo, deferring to factual findings if supported by substantial evidence. Applying that standard, we conclude the trial court did not err.”
Racial Admins
Pulos noted that before the enactment of §231.7, peremptory challenges suspected of being motivated by racial animus were evaluated under the so-called Batson/Wheeler framework—named after the 1986 U.S. Supreme Court case of Batson v. Kentucky and the 1978 California Supreme Court case of People v. Wheeler—which required the objecting party to establish a prima facia case of discrimination.
The jurist pointed out that §231.7 eliminates the requirement for the prima facie showing and remarked that “[i]nstead, the trial court shall sustain the objection to the use of the peremptory challenge ‘[i]f the court determines there is a substantial likelihood that an objectively reasonable person would view race…as a factor in the use of the peremptory challenge.’ ”
Sec. 231.7 specifies that an “objectively reasonable person” is one who is “aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors.”
Hinojos frames the peremptory challenge against Juror 10 as being justified by the lack of information about the man’s views on gangs and argues that Vallejo adequately questioned the potential panelist on other matters.
Statutory Factors
Noting that the statute points to factors such as “the number and types of questions posed” and “‘[w]hether the party exercising the peremptory challenge engaged in cursory questioning” as relevant to the analysis, Pulos rejected Hinojos’ characterization, saying:
“Defense counsel’s failing to question Juror No. 10 about his views on gangs, and then offering lack of knowledge about Juror No. 10’s views on gangs as the sole reason for the exercise of the peremptory challenge, raises the inference that the reason was pretextual.”
He continued:
“As the trial court observed, defense counsel’s notes indicated Juror No. 10 was ‘a good juror’ who gave ‘rather satisfactory answers.’…The trial court saw nothing the defense would find objectionable in Juror No. 10’s questionnaire, and defense counsel identified nothing either. In addition, the trial court observed that defense counsel had excluded ‘a number’ of White (and Hispanic) jurors before reaching Juror No. 10….On these facts, the trial court was correct that ‘in light of the totality of the circumstances’ there is ‘more than a mere possibility’ that ‘an objectively reasonable person would view race [or perceived race]…as a factor in the use of the peremptory challenge.’ ”
The case is People v. Hinojos, 2025 S.O.S. 1022.
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