Peremptory Challenge of Latina Juror Unrelated to Race

Both the federal and state Constitutions prohibit an attorney’s use of peremptory challenges to exclude prospective jurors based on race.  “Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.” People v. Holmes, McClain and Newborn (2022) 12 Cal. 5th 719, 759–760.

Before January 1, 2022, trial courts examined peremptory challenges under the three-step inquiry established by Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal. 3d 258.  Recognizing the limitations of the Batson/Wheeler inquiry, the Legislature enacted Assembly Bill No. 3070 (2019-2020 Reg. Sess.) to add Code of Civil Procedure section 231.7, which creates new procedures for identifying unlawful discrimination in the use of peremptory challenges. 

Penal Code § 231.7(a) prohibits the use of “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.” 

If a party or the trial court objects to the use of a peremptory challenge, “the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised.” § 231.7(c).

After the party exercising the challenge states the reasons for it, the trial court must decide whether to sustain the objection.  In so doing, the court “shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances.” § 231.7 (d)(1).  The court may only consider the reasons stated by the party using the peremptory challenge: “The court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge.” Ibid. 

The trial court shall sustain the objection “[i]f the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge.” § 231.7 (d)(1).  “[A] ‘substantial likelihood’ means more than a mere possibility but less than a standard of more likely than not.” Id., subd. (d)(2)(B)  The court “need not find purposeful discrimination” to sustain an objection to a peremptory challenge. Ibid.

Section 231.7(e) provides a wide-ranging list of reasons that are “presumed to be invalid.” Id., subd. (e)(1)–(13).)  The presumptively invalid reasons listed under subdivision (e) include “[e]xpressing a distrust of or having a negative experience with law enforcement or the criminal legal system” (Id., subd. (e)(1)), “[h]aving a close relationship with people who have been stopped, arrested, or convicted of a crime” (Id., subd. (e)(3)), or “[l]ack of employment or underemployment of the prospective juror or prospective juror’s family member” (Id., subd. (e)(11)). 

Section 231.7, subdivision (g) contains a different list of presumptively invalid reasons.  The reasons under subdivision (g) involve a prospective juror’s demeanor, behavior, or manner: “The prospective juror was inattentive, or staring or failing to make eye contact” (Id., subd. (g)(1)(A)), “[t]he prospective juror exhibited either a lack of rapport or problematic attitude, body language, or demeanor” (Id., subd. (g)(1)(B)), and “[t]he prospective juror provided unintelligent or confused answers” (Id., subd. (g)(1)(C)).  

In short, one may gather that it is extremely difficult to exercise a peremptory challenge of a juror who is member of a protected group.  However, in the recently published opinion of People v. Esteban Jimenez, the California Court of Appeal for the Fourth Appellate District found that prosecutors could remove a prospective Latina juror through a peremptory challenge because her repeated statements that she would have a difficult time being fair were unrelated to her race.

In the underlying case, arising in San Diego Superior Court, a jury convicted Mr. Jimenez of evading an officer while driving recklessly (Vehicle Code § 2800.2(a)) and leaving the scene of an accident (Vehicle Code § 20002(a)).  The jury also found true a prior strike allegation.  The judge later sentenced Mr. Jimenez to the middle term on the reckless driving count, doubled for a prior strike, for a total term of four years.  The judge stayed the sentence on count 2 under Penal Code § 654.

Mr. Jimenez appealed his conviction by arguing the judge erred in finding no violation of Penal Code § 231.7 based on the prosecutor’s use of a peremptory challenge of a particular Latina juror.

The Fourth District sustained the challenge because the Latina juror stated she would have a difficult time following the law because she stated she would have a hard time being fair because of the racial bias of law enforcement.  The prosecutor excused her and explained that he did so because she stated did not think she had the ability to be fair and impartial.

The Fourth District determined this reason did not violate Penal Code § 231.7.

For more information about juror excusals based on race, please click on the following articles: