PEOPLE v. JOHNSON

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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Jay Shawn JOHNSON, Defendant and Appellant.

No. A085450.

Decided: April 05, 2001

Stephen B. Bedrick Oakland, CA, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Martin S. Kaye, Deputy Attorney General, Richard Rochman, Deputy Attorneys General, San Francisco, CA, for Plaintiff and Respondent.

Jay Shawn Johnson was convicted of second degree murder and assault resulting in the death of a child under the age of eight (Pen.Code, §§ 187, 273ab) upon retrial after a partial reversal on his first appeal.   The murder victim was Janika Price, the 19 month old daughter of Jennifer Shelton with whom appellant was romantically involved.   In the first appeal, we affirmed appellant's conviction of corporal injury on a cohabitant, Jennifer Shelton (Pen.Code, § 273.5), and reversed his convictions of second degree murder and assault on a child leading to death for error in jury instructions on the cause of death.   Appellant was retried in December 1998, and was sentenced to 15 years to life imprisonment on the murder conviction to run concurrently with the three-year term for corporal injury on a cohabitant.

Appellant raises a number of evidentiary issues, as well as a claim that the trial court erred when it failed to find a prima facie case of a Wheeler (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748) violation.   We conclude a prima facie case of group bias was established and that the judgment must therefore be reversed.   In the unpublished portion of this opinion we set forth factual details unrelated to the Wheeler issue that bear upon evidentiary questions that are addressed to provide guidance to the trial court upon retrial.

DISCUSSION

I.

Appellant, who is African-American, contends the prosecutor improperly used peremptory challenges to excuse three African-American prospective jurors because of their race, which completely eliminated African-Americans from the jury.   Appellant made two motions for a mistrial under People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 for racial discrimination in jury selection.   Both were denied for failure to present a prima facie case.

The first Wheeler motion was directed to the prosecution's challenges to “three African-American women,” namely Clodette T., Sara E., and Bernice L.1 Defense counsel argued there were no valid race-neutral justifications for these challenges.   Finding no prima facie case had been established, the court denied the motion, adding:  “[h]owever, I would indicate that we are very close, Mr. Brown [prosecutor].”

The second Wheeler motion was made the next day, in response to the prosecutor's peremptory challenge to another African-American woman, Ruby L. Defense counsel maintained that the prosecutor's peremptory challenge of every African-American seated reflected a systematic attempt to exclude African-Americans from the jury panel.   In denying the motion, the court noted that it found Ms. L.'s answers sufficient to justify a peremptory challenge in that her answers to the questionnaire raised concerns about her ability to understand the proceedings.   As to Sara E., the court noted that she had omitted in her questionnaire the information about a parent's arrest for robbery some 30 years earlier.   The court also recalled that Ms. E. had indicated concern about whether she could be fair, even though her “answers tend to lean in favor of the prosecution.”   The court made no comment about the challenge of Clodette T. In denying the motion the court stated:  “Even with the addition of Ms. L., the Court will not find a prima facie case.   The People are [not] exercising challenges based on group bias, rather than individual bias.”   The court then offered the prosecutor the opportunity to make a further record, which he declined.

 “The use of peremptory challenges to eliminate prospective jurors because of their race is prohibited by the federal Constitution (Powers v. Ohio (1991) 499 U.S. 400, 409 [111 S.Ct. 1364, 113 L.Ed.2d 411];  Batson v. Kentucky (1986) 476 U.S. 79, 89)[106 S.Ct. 1712, 90 L.Ed.2d 69] and by the California Constitution (People v. Wheeler (1978) 22 Cal.3d 258, 276-277) [148 Cal.Rptr. 890, 583 P.2d 748].”  (People v. Mayfield (1997) 14 Cal.4th 668, 722-723, 60 Cal.Rptr.2d 1, 928 P.2d 485.)

A.

At the time the parties briefed this case, there was a dispute about whether Wheeler required a greater evidentiary showing for a prima facie case than was required under Batson.2  Wheeler states:  “If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court.   First, ․ he should make as complete a record of the circumstances as is feasible.   Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.   Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.”  (Wheeler, at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748, italics added, fn. omitted.)   In the next paragraph of the Wheeler opinion the court describes the types of evidence a party may use to show his opponent is challenging persons from the venire because of their group association.   The opinion then goes on to state that “[u]pon presentation of this and similar evidence ․ the court must determine whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone.”  (Id. at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748, italics added.)   As will be seen, the separate references to “strong likelihood” and “reasonable inference” has created some confusion as to which of the two standards applies, as most courts that have addressed the question have concluded that a “strong likelihood” requires a stronger showing than a mere inference.

There is, however, no such confusion as to which standard applies under Batson, the federal counterpart to Wheeler.   To establish a prima face case of discrimination under the United States Constitution, Batson states that a defendant must “raise an inference that the prosecutor used that practice [peremptory challenges] to exclude the veniremen from the petit jury on account of their race.”  (Batson v. Kentucky, supra, 476 U.S. at p. 96, 106 S.Ct. 1712 italics added.)   The difference in language between Wheeler (“strong likelihood”) and Batson (“raise an inference”) led to a dispute about whether Wheeler established a stricter test than Batson.   In People v. Fuller (1982) 136 Cal.App.3d 403, 423, 186 Cal.Rptr. 283, which was decided prior to Batson, the court acknowledged that the Wheeler opinion uses both phrases, but concluded “that a fair reading of Wheeler requires only that the court find a reasonable inference of group bias․” (Id. at p. 423, 186 Cal.Rptr. 283.)   The Fuller court was “unwilling to believe that our high court intended to create different options for trial judges within one page of each other in so carefully crafted an opinion as the Wheeler opinion.”  (Id. fn. 25.)

The Fuller view of Wheeler was repudiated in People v. Bernard (1994) 27 Cal.App.4th 458, 32 Cal.Rptr.2d 486 which rejected the view “that a fair reading of Wheeler requires only that the court find a reasonable inference of group bias.”  (People v. Fuller, supra, 136 Cal.App.3d at p. 423, 186 Cal.Rptr. 283) According to the Bernard court, “a reduction of the prima facie standard to a ‘reasonable inference’ test would reduce the trial court's discretion and judgment at a time when it is uniquely situated to observe the nature and extent of voir dire as well as the attitude and awareness of the challenged prospective juror.”  (27 Cal.App.4th at p. 465, 32 Cal.Rptr.2d 486) The conclusion of the Bernard court that a “strong likelihood” requires a stronger showing than a “reasonable inference,” and that such a stronger showing must be made to establish a prima facie case of violation of the Wheeler rule, has been followed by other appellate courts in this state.  (See, e.g., People v. Buckley (1997) 53 Cal.App.4th 658, 665-666, 61 Cal.Rptr.2d 860;  People v. Walker (1998) 64 Cal.App.4th 1062, 1067, 75 Cal.Rptr.2d 871.)

Recently, in Wade v. Terhune (9th Cir.2000) 202 F.3d 1190, the Ninth Circuit observed that since the decision in Bernard, “the California state courts have applied a lower standard of scrutiny to peremptory strikes than the federal Constitution permits. [¶] The California Supreme Court now routinely insists, despite Batson, that a defendant must show ‘a strong likelihood’ of racial bias.   Its consistent practice is to cite Batson and Wheeler together as controlling law but to quote the ‘strong likelihood’ language from Wheeler rather than the ‘raise an inference’ language from Batson.  [Citations.]  Batson is, of course, the law of the land.   California law may give greater protection to criminal defendants than is required by the federal Constitution, but it cannot give less.   Yet this is precisely what the California courts now do when they follow the Wheeler ‘strong likelihood’ test in determining whether a prima facie case has been established.  [¶] In our view, the Wheeler ‘strong likelihood’ test for a successful prima facie showing of bias is impermissibly stringent in comparison to the more generous Batson ‘inference’ test.”  (Id. at pp.   1196-1197) Accordingly, the Wade v. Terhune court concluded that “[w]here the California courts follow the ‘strong likelihood’ language of Wheeler without any indication that they are actually applying a ‘reasonable inference’ test consonant with Batson, they apply an incorrect legal standard.”  (Id. at p. 1197.)

Wade v. Terhune also opines “that the Wheeler court itself understood ‘a strong likelihood’ to mean a ‘reasonable inference.’   While the Wheeler Court, on page 280 of its opinion, required a defendant to ‘show a strong likelihood’ that the prosecutor excluded venire members from the jury on the basis of race, the Wheeler Court phrased its central holding somewhat differently on the very next page:  ‘Upon presentation of this and similar evidence-in the absence, of course, of the jury-the court must determine whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone.’  Id. at 281 [148 Cal.Rptr. 890, 583 P.2d 748] ․ (emphasis added).   It is this language regarding a ‘reasonable inference’ that the Supreme Court of the United States borrowed when it formulated the Batson test.” (Id. at p. 1196)

In People v. Box (2000) 23 Cal.4th 1153, 99 Cal.Rptr.2d 69, 5 P.3d 130, which issued six months after Wade v. Terhune, our high court included a short footnote agreeing with the Ninth Circuit that “in California, a ‘strong likelihood’ means a ‘reasonable inference’ ”  (id. at p. 1188, fn. 7, 99 Cal.Rptr.2d 69, 5 P.3d 130) and disapproving People v. Bernard, supra, 27 Cal.App.4th 458, 32 Cal.Rptr.2d 486.3  The Attorney General dismisses this statement as relatively insignificant.   All it means, he says, is that the Supreme Court and intermediate appellate courts were always adhering to the Batson standard.   In other words, according to the Attorney General, for Wheeler purposes, “strong likelihood” and “reasonable inference” have always meant the same thing;  because the test is the same it is immaterial which phrase is used.   As we shall discuss in a moment, this view, which we attribute neither to the Ninth Circuit nor our Supreme Court, conflicts with common understanding and the different meanings historically attributed by our legal system to the words at issue, would cause enormous confusion in the trial courts of this state and exacerbate the doubts that have already been raised as to the compatibility of Wheeler and Batson.   Moreover, the notion that our Supreme Court not only thinks but has always thought that a “strong likelihood” is synonymous with a “reasonable inference” for purposes of the Wheeler rule, and that the lower courts of this state knew or should have known of this, was persuasively rebutted by the Ninth Circuit in Wade v. Terhune, supra, 202 F.3d at pp. 1196-1197.

Though not cited in Wade v. Terhune, supra, People v. Sanders (1990) 51 Cal.3d 471, 273 Cal.Rptr. 537, 797 P.2d 561 demonstrates the California Supreme Court's post-Wheeler and pre-Box belief that the “strong likelihood” requirement imposes a more stringent burden that the “reasonable inference” requirement.   In Sanders, all but four Spanish surnamed members of the venire were excused for cause either by the defense or the prosecution.   When the remaining four were peremptorily challenged by the prosecution, the defendant asserted a Wheeler objection.   The trial court denied the motion, finding the defendant had failed to demonstrate a prima facie case that the prosecutor was relying on group rather than specific bias.   The Supreme Court affirmed.   Acknowledging that “the removal of all members of a certain group may give rise to an inference of impropriety” under Wheeler (id. at p. 500, 273 Cal.Rptr. 537, 797 P.2d 561), the Supreme Court emphasized the deference owed the trial court and primarily on that basis concluded that the “defendant failed to demonstrate a strong likelihood based on ‘all the circumstances of the case’ that the prosecutor's exercise of his peremptory challenges were based on group bias.”  (Id. at p. 501, 273 Cal.Rptr. 537, 797 P.2d 561) After Sanders, most Supreme Court opinions applying the Wheeler rule omit any reference to the “reasonable inference” standard and focus only on the need to show a “strong likelihood” of group bias.  (See, e.g., People v. Welch (1999) 20 Cal.4th 701, 745, 85 Cal.Rptr.2d 203, 976 P.2d 754;  People v. Williams (1997) 16 Cal.4th 635, 663-664, 66 Cal.Rptr.2d 573, 941 P.2d 752;  People v. Mayfield, supra, 14 Cal.4th 668, 723, 60 Cal.Rptr.2d 1, 928 P.2d 485;  People v. Arias (1996) 13 Cal.4th 92, 134-135, 51 Cal.Rptr.2d 770, 913 P.2d 980;  People v. Davenport (1995) 11 Cal.4th 1171, 1199-1200, 47 Cal.Rptr.2d 800, 906 P.2d 1068;  People v. Turner (1994) 8 Cal.4th 137, 164-165, 32 Cal.Rptr.2d 762, 878 P.2d 521;  People v. Garceau (1993) 6 Cal.4th 140, 170-171, 24 Cal.Rptr.2d 664, 862 P.2d 664.)   Indeed, the court has even italicized “strong likelihood” to emphasize the stringency of that requirement.  (People v. Howard (1992) 1 Cal.4th 1132, 1154, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

In light of this, as the Ninth Circuit correctly observed, California courts confidently relied on the now disapproved language in People v. Bernard, supra, 27 Cal.App.4th at pp. 464-466, 32 Cal.Rptr.2d 486, supporting application of the more demanding “strong likelihood” standard.   In the present case, for example, in finding that appellant did not establish a prima facie case of group bias, the trial court stated as follows:  “there's not been shown a strong likelihood that the exercise of the peremptory challenges were based upon a group rather than an individual basis.   The Court has to start from the position of a premise that the exercises of the peremptory challenges were based on constitutional grounds.”   This language tracks the disapproved language in Bernard that the “presumption a party exercising a peremptory challenge is doing so on a constitutionally firm ground ․ should be capable of being rebutted only by a strong showing, not a mere inference.”  (Id. at p. 465, 32 Cal.Rptr.2d 486, italics added.)   As this formulation of the initial showing of discrimination required by Wheeler has been rejected, we do not believe we can employ it.

The question, then, is the meaning of the footnoted statement in Box that “in California, a ‘strong likelihood’ means a ‘reasonable inference.’ ”  (23 Cal.4th at p. 1188, fn. 7, 99 Cal.Rptr.2d 69, 5 P.3d 130.) We do not believe it means that California courts have always treated the two phrases as meaning the same thing, which would be as novel a proposition as the idea that “clear and convincing evidence” has always meant a “preponderance of the evidence.”

 Though an “inference” may be defined as “an implication” (Oxford English Dictionary (2d ed.)), the word is ordinarily used in the law to refer to “[a] conclusion reached by considering other facts and deducing a logical consequence from them,” or “[t]he process by which such a conclusion is reached;  [i.e.,] the process of thought by which one moves from evidence to proof.”  (Black's Law Dictionary (7th ed.))   An inference may be reasonably deducible from evidence even if it conflicts with another inference that may also be deducible from the same evidence.  (See, e.g., Grainger v. Antoyan (1957) 48 Cal.2d 805, 807, 313 P.2d 848 [“When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.”];   Code Civ.Proc., § 437c, subd. (c) [“summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence”].)   As Witkin points out, “the party's proof need not wholly exclude all unfavorable inferences;  i.e., the party is not required to show that, under the circumstances, the inference in his or her favor is the only one that can reasonably be drawn.  [Citations.]”  (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 139, p. 198.)

However, while the same evidence, including circumstantial evidence, can give rise to conflicting inferences that are equally reasonable, the same evidence cannot simultaneously support “strong likelihoods” pointing in different directions.   Thus, while courts in this State have disagreed about whether the initial showing of discrimination that constitutes a prima facie case under Wheeler is a “strong likelihood” or a “reasonable inference” (as, for example, the disagreement of People v. Bernard, supra, 27 Cal.App.4th at pp. 465-466, 32 Cal.Rptr.2d 486, with the view expressed in People v. Fuller, supra, 136 Cal.App.3d at p. 423, 186 Cal.Rptr. 283), the dispute was predicated upon the shared belief that the latter standard imposes a lesser burden than the former.   Indeed, as already noted, the belief that a “strong likelihood” of group bias requires greater evidence than a “reasonable inference” of such bias was expressed by the Supreme Court more than a decade ago.  (People v. Sanders, supra, 51 Cal.3d at p. 500-501, 273 Cal.Rptr. 537, 797 P.2d 561.)

 The statement in Box that “a ‘strong likelihood’ means a ‘reasonable inference’ ” cannot be construed to mean that the phrases are synonymous (let alone that they were always thought to be synonymous), as that would reject longstanding judicial understandings, and require explanation.   The different meaning of the statement is revealed, we think, by its obvious purpose, which was to reconcile Wheeler and Batson after its incompatible application of Wheeler was called to our Supreme Court's attention by the Ninth Circuit in Wade v. Terhune, supra.   As the Ninth Circuit stated, “[t]he United States Supreme Court has explained that the Batson framework was intended significantly to reduce the quantum of proof previously required of a defendant who wished to raise a claim of racial bias in the jury selection procedure.   See Georgia v. McCollum, 505 U.S. 42, 47 [112 S.Ct. 2348, 120 L.Ed.2d 33]․” (Wade v. Terhune, supra, 202 F.3d at p. 1197) Wheeler is not consistent with the Batson framework unless the quantum of proof required by Wheeler to establish a prima facie case of group bias is no higher than that required under Batson.   The statement in Box that “a ‘strong likelihood’ means a ‘reasonable inference’ ” therefore must be taken to mean that, for purposes of determining whether a party has established a prima facie case of group bias, the words “strong likelihood,” as used in Wheeler and case law relating to the Wheeler rule, shall henceforth be deemed to mean a “reasonable inference” (which is the opposite of saying that a “reasonable inference” shall be deemed to mean a “strong likelihood”).   This was the view of Wheeler adopted in People v. Fuller, supra, and rejected in People v. Bernard, supra.   By disapproving Bernard, the Supreme Court has in effect clarified its agreement with Fuller that a “reasonable inference” of group bias suffices to establish a prima facie case.

We note, finally, that the Ninth Circuit has indicated its unwillingness to defer to the Attorney General's different interpretation of People v. Box, supra, as clarifying that the “strong likelihood” and “reasonable inference” standards are now and have always been the same, and that use of the “strong likelihood” standard is therefore constitutionally permissible.   In Cooperwood v. Cambra (9th Cir. April 4, 2001, No. 99-15518) 245 F.3d 1042, the Ninth Circuit recently declared that “regardless of the California Supreme Court's ‘clarification’ [in Box] of the language used in Wheeler, we will continue to apply Wade's de novo review requirement whenever state courts use the ‘strong likelihood’ standard, as these courts are applying a lower standard of scrutiny to peremptory strikes than the federal Constitution permits.”  (Id. at p. 1047, citing Wade v. Terhune, supra, 202 F.3d at p. 1192.)

B.

 In determining whether appellant established a reasonable inference of group bias, we do not limit our review solely to counsel's presentation at the time of the motion.   This is because “other circumstances” readily apparent to the trial court might support the finding of a prima facie case even though not cited by defense counsel.  (See People v. Howard, supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)  “[T]he trial court [should not] blind itself to everything except defense counsel's presentation.”  (Ibid.) Indeed, Wheeler emphasized that such rulings require trial judges to consider “all the circumstances of the case” (Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748) and called upon judges to exercise their powers of observation, their understanding of trial techniques and their broad judicial experience.  (Howard, supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

 It is for these reasons that the reviewing court is directed to consider “the entire record of voir dire” when a trial court denies a Wheeler motion without finding a prima facie case of group bias.  “As with other findings of fact, we examine the record for evidence to support the trial court's ruling.”  (Howard, supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   Because Wheeler motions call upon trial judges' personal observations, we view their rulings with considerable deference on appeal.   If the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm.  (Ibid.;  People v. Box, supra, 23 Cal.4th at p. 1188, 99 Cal.Rptr.2d 69, 5 P.3d 130.)   The ruling is thus reviewed for substantial evidence.  ( See People v. Alvarez (1996) 14 Cal.4th 155, 196, 58 Cal.Rptr.2d 385, 926 P.2d 365.)

As will be seen, the prima facie case asserted in this case rests in some measure on a comparison of the written and oral voir dire testimony of the African-Americans excused by the prosecution with that of other prospective jurors who were not excused, which appellant claims are materially indistinguishable.   This requires us to consider whether and, if so, to what extent such comparisons may be used to show a prima facie case of group bias.   Unfortunately, this is another area in which the application of Wheeler by California courts has differed somewhat from federal judicial application of Batson.

Relying on its earlier opinion in People v. Johnson (1989) 47 Cal.3d 1194, 1220-1221, 255 Cal.Rptr. 569, 767 P.2d 1047, which dealt with the review of reasons proffered by the prosecutor after a prima facie case had been found, the California Supreme Court has recently reiterated its rejection of “ ‘a procedure that places an “undue emphasis on comparisons of the stated reasons for the challenged excusals with similar characteristics of nonmembers of the group who were not challenged by the prosecutor,” noting that such a comparison is one-sided and that it is not realistic to expect a trial judge to make such detailed comparisons midtrial.’ ”  (People v. Box, supra, 23 Cal.4th at p. 1190, 99 Cal.Rptr.2d 69, 5 P.3d 130.)

Federal courts have not been as reluctant as our Supreme Court to employ comparative analyses of voir dire testimony in order to determine whether the use of a peremptory challenge reflects racial or other forms of group bias and routinely do so.  (See, e.g., Caldwell v. Maloney (1st Cir.1998) 159 F.3d 639, 651 [reasons given for challenge, though plausible, may raise serious question of pretext where explanation is equally applicable to juror of different race who was not stricken];  Devose v. Norris (8th Cir.1995) 53 F.3d 201, 203-205 [finding state's reason for excusing black jurors pretextual when several white jurors who were not struck gave similar answers].)   This is particularly true in the Ninth Circuit.   As a panel of that court recently observed, “[a] prosecutor's motives may be revealed as pretextual where a given exception is equally applicable to a juror of a different race who was not stricken by the exercise of a peremptory challenge.   See Caldwell v. Maloney, 159 F.3d 639, 651 (1st Cir.1998).  ‘A comparative analysis of jurors struck and those remaining is a well-established tool for exploring the possibility that facially race-neutral reasons are a pretext for discrimination.’  Turner v. Marshall, 121 F.3d 1248, 1251 (9th Cir.1997).   Peremptory challenges cannot be lawfully exercised against potential jurors of one race unless potential jurors of another race with comparable characteristics are also challenged.   See id.”  (McClain v. Prunty (9th Cir.2000) 217 F.3d 1209, 1220-1221;  accord, U.S. v. Chinchilla (9th Cir.1989) 874 F.2d 695.)

The difference between our Supreme Court and the Ninth Circuit is not, however, as great as it first appears.   For one thing, our Supreme Court has not precluded comparative analyses by reviewing courts but has simply declared that they should not place an “undue emphasis” on such an analysis (People v. Box, supra, 23 Cal.4th at p. 1190, 99 Cal.Rptr.2d 69, 5 P.3d 130;  People v. Turner, supra, 8 Cal.4th at p. 169, 32 Cal.Rptr.2d 762, 878 P.2d 521;  People v. Johnson, supra, 47 Cal.3d at p. 1220.)   Indeed, the Supreme Court has itself occasionally engaged in such analyses.   For example, in People v. Crittenden (1994) 9 Cal.4th 83, 36 Cal.Rptr.2d 474, 885 P.2d 887, in considering a challenge to a trial court finding that no prima facie case had been shown, the court entertained the defendant's claim that many jurors had expressed similar concerns about the death penalty as prospective African-American jurors who were excused.   Instead of refusing to consider such a comparison, the Crittenden court rejected the appellant's argument on its own terms, “because all except one of these prospective jurors were excused (almost all by the prosecutor), and the prosecutor's failure to excuse the remaining juror must be viewed in light of the circumstance that the juror was called later in the proceedings, when the prosecutor's remaining peremptory challenges were few.”  (Id. at p. 119, 36 Cal.Rptr.2d 474, 885 P.2d 887.)   Also, in People v. Jones (1998) 17 Cal.4th 279, 295, 70 Cal.Rptr.2d 793, 949 P.2d 890, the court addressed the defendant's comparative analysis claim that other prospective jurors who were not Black had expressed doubts about the death penalty but were impaneled anyway.   It rejected the claim on its merits, finding sufficient evidence in the record to support the trial court's refusal to find a prima facie case.

It is also important to emphasize that the cases in which the Supreme Court cautioned against the placing of undue emphasis on the appellate use of comparison analysis (People v. Box, supra, 23 Cal.4th 1153, 99 Cal.Rptr.2d 69, 5 P.3d 130;  People v. Turner, supra, 8 Cal.4th 137, 32 Cal.Rptr.2d 762, 878 P.2d 521;  People v. Montiel (1993) 5 Cal.4th 877, 21 Cal.Rptr.2d 705, 855 P.2d 1277;  People v. Johnson, supra, 47 Cal.3d 1194, 255 Cal.Rptr. 569, 767 P.2d 1047) were ones in which the trial court called for, received and accepted a race-neutral explanation from the attorney whose challenges were questioned.   The important question in those cases was not whether a prima facie case of group bias had been established, but whether counsel's explanation was credible.   The Supreme Court admonished against the excessive appellate use of comparison analysis in those cases because it related to the ultimate determination of bias and could not be squared with the deference that had to be accorded a trial court determination of the credibility of a proffered explanation.   For example, in People v. Montiel, supra, the prosecutor analyzed the views of challenged and unchallenged members of the venire and the trial judge made a “sincere and reasoned effort” to evaluate the nondiscriminatory justifications he offered.  “In such circumstances,” the Supreme Court stated, “an appellate court will not reassess good faith by conducting its own comparative juror analysis.”  (5 Cal.4th at p. 909, 21 Cal.Rptr.2d 705, 855 P.2d 1277, italics added.)   A very different situation is presented, however, where, as in the matter before us, the trial judge neither received from counsel nor itself provided any racially neutral explanation but nonetheless refused to find a prima facie case of group bias.   The issue here is neither the credibility of a racially neutral explanation nor the ultimate question of bias, but merely the appearance of such bias as would call for an explanation. Where reasons for a questioned challenge are not required by the trial court or offered by counsel, a reviewing court will often be unable to reasonably determine whether the Wheeler rule has been violated without some examination and comparison of the voir dire testimony of excluded and nonexcluded jurors.   Barring any appellate use of such comparisons in those cases would materially compromise the ability of reviewing courts to intelligently evaluate the denial of Wheeler/Batson claims.   In light of the importance of appellate review to a correct criminal adjudication (Griffin v. Illinois (1956) 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891), inadequate state appellate review might undermine the presumption of the correctness of state court rulings indulged by federal courts in habeas corpus proceedings (28 U.S.C. § 2254(d)), and leave to the federal courts the enforcement of an important right arising not just under the United States Constitution but independently under our own Constitution.  (See, Burks v. Borg (9th Cir.1994) 27 F.3d 1424, 1428.)

We do not think our Supreme Court contemplates any abdication of state judicial responsibilities.  Wheeler implicitly acknowledges that the exclusion of jurors on the basis of race “condones violations of the United States Constitution [and our own Constitution] within the very institution entrusted with its enforcement, and so invites cynicism respecting the jury's neutrality and its obligation to adhere to the law.”  (Powers v. Ohio (1991) 499 U.S. 400, 412, 111 S.Ct. 1364, 113 L.Ed.2d 411.)   In the light of this danger, judges must be vigilant and assertive.   As stated in Wheeler, “the courts cannot be pacifists” in the “war” between racial discrimination in jury selection and our basic concepts of a democratic society.  (People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)   The Wheeler rule is meaningless unless a trial court finding that a prima facie case of racial or group bias has not been established is subject to meaningful review.   Where such a finding is unexplained by the trial court or by counsel, a reviewing court must be able to examine all the relevant evidence, including a comparison of the voir dire testimony of excluded and nonexcluded jurors.

It is also necessary to remember that People v. Howard, supra, 1 Cal.4th 1132, 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315 states that judicial review of a defendant's attempt to establish a prima facie case is not limited to a review solely of counsel's presentation at the time of the motion in order to ensure that even if the defendant's showing is inadequate, there are no “other circumstances” which might support a finding of a prima facie case.   Courts of Appeal have lamented that by relieving trial courts of the need to provide a rationale for a no prima facie case finding, and requiring appellate courts to examine the entire record in search of a justification, the Supreme Court has in effect compelled reviewing courts “to move into the realm of speculation concerning why a party ‘may’ have a reason to challenge a juror other than his or her membership in a cognizable group.”  (People v. Trevino (1997) 55 Cal.App.4th 396, 409, 64 Cal.Rptr.2d 61.)   As one court has stated, “where a defendant fails to make a prima facie case and, because of that, the prosecutor has not been called upon to state race-neutral reasons for exercising a peremptory, the appellate court, under the position taken by the California Supreme Court in Howard, is placed in the almost untenable position of culling from the record possible race-neutral reasons for excusal.”  (People v. Walker, supra, 64 Cal.App.4th 1062, 1069, 75 Cal.Rptr.2d 871;  accord, People v. Buckley, supra, 53 Cal.App.4th 658, 667, 61 Cal.Rptr.2d 860 [“It is clearly uncomfortable for an appellate court to postulate hypothetical reasons a prosecutor might have challenged each juror.”].) Needless to say, the problem created by Howard would be immeasurably exacerbated, and it would be irrational and unfair, if a comparison of the voir dire testimony of challenged and unchallenged members of the venire were excluded from the “other circumstances” reviewing courts have been required by the Supreme Court to examine.

 For the foregoing reasons, we conclude that in a case such as this a reviewing court may examine and compare the voir dire testimony of those members of the venire excluded from the jury and those who were not, provided such evidence is not “one-sided,” “highly speculative” or “unduly emphasized” (People v. Johnson, supra, 47 Cal.3d at pp. 1220-1221, 255 Cal.Rptr. 569, 767 P.2d 1047), but solid and persuasive.

With these thoughts in mind, we proceed to consider the voir dire testimony and other evidence appellant relies upon in arguing that the trial court erred in finding he did not establish a prima facie case of group bias.   We preface our analysis, however, by noting that the prosecution's use of peremptory challenges removed all African-Americans from the jury, and in People v. Sanders, supra, 51 Cal.3d at p. 500, 273 Cal.Rptr. 537, 797 P.2d 561, the Supreme Court indicated that this alone “may give rise to an inference of impropriety.”  (Accord, U.S. v. Chinchilla, supra, 874 F.2d 695, 698, fn. 4;  U.S. v. Thompson (9th Cir.1987) 827 F.2d 1254, 1256-1257;  U.S. v. Alcantar (9th Cir.1987) 832 F.2d 1175, 1177.)

 Clodette T.

Clodette T.'s juror questionnaire revealed she was 42 years old, had been divorced for 11 years, had no children, and had lived in Richmond for 10 years.   She had been employed in an administrative job at IBM for nine years, had attended some regular college and was a graduate of business college.   She had served on a civil jury in a medical malpractice case, and that jury had reached a verdict.   This was a positive experience for her.   Question 20 asked, “Do you have a favorable, neutral, or unfavorable opinion of your African-American or black co-workers?”   She responded:  “Being an African-American myself, I am favorable.”   None of her other answers contained information that would give pause to either side.

During oral questioning, Ms. T. stated that her house had been “robbed” five or six years ago and that no arrest had been made for it.   In examining Ms. T.'s questionnaire, the trial court noted that she had omitted answers to questions 57 and 58 (out of a total of 64 questions, spanning 17 pages) asking for her opinions about prosecuting attorneys and criminal defense attorneys.  Ms. T. said she made a mistake in omitting answers to those questions, but did so only because she had no opinions on those topics.   In the six or so other questions asked, Ms. T. gave no answer that would provide a race-neutral reason for finding her unsuitable as a juror.   Indeed, the court asked only 10 questions in all, and the prosecutor declined the court's invitation to ask follow-up questions.

No basis other than race appears for the prosecutor's peremptory challenge of Ms. T. Her name was never mentioned by counsel or the court during argument on either of the Wheeler motions.   The fact that she left questions 57 and 58 blank cannot be credited as a valid justification in light of the fact that the same thing was done by white juror number 7 (questionnaire # 50) who also explained he had no opinions on the subject of those questions, and by white juror number 10 (questionnaire # 89).

Ms. T.'s answer to question 20 that she had a favorable opinion of African-American co-workers cannot be credited as a valid reason for the peremptory challenge.   The only factor that distinguishes her from the many other jurors who gave the same answer is that she is African-American.   White juror number 3 (questionnaire # 47), Hispanic/Latino juror number 6 (questionnaire # 78), and white juror number 8 (questionnaire # 10) all answered that they had favorable opinions of their African-American co-workers, and none was challenged by the prosecutor.

 Sara E.

Sara E.'s questionnaire revealed that she was 36 years old, had never been married, and had lived in West Contra Costa County for 19 years.   She had worked for Pacific Bell for 13 years, performing wiring for telephone service.   Her car had been broken into five years before.   She had served on a criminal jury in a robbery case in the early 1980's and that jury had reached a verdict.   Question 63 asked a prospective juror whether filling out the questionnaire changed his or her attitude in any way about sitting as a juror in this case.   She wrote:  “I had no feelings one way or the other about sitting as a juror until I found out who the victim was.   I am deeply saddened that it was an eighteen month old child.   Based on the evidence brought forward, I will not allow my emotions to get in the way of the verdict.”  (Emphasis in original.)

During questioning on voir dire, the court mentioned that Ms. E. had failed to answer question 30, which asked whether she or a family member had ever been arrested.   Ms. E. responded that one of her parents had been arrested for robbery in another location over 35 years ago.   As previously mentioned, Ms. E. was 36 years old.   She knew nothing about how the police or district attorney had treated her parent.

Written question 40 inquired whether the fact that this case involved an allegation of murder and child abuse of an 18-month-old child would affect the juror's ability to be fair and impartial.   Ms. E. wrote “don't know.”   The court asked how she felt about that now, and she replied that she could be fair and impartial.

Declining the court's explicit invitation to ask follow-up questions, the prosecutor immediately challenged Ms. E. At that point, defense counsel made his first Wheeler motion.

With regard to Sara E., the trial court cited the following factors in refusing to find a prima facie case:  (1) She failed to answer question 30 on the written questionnaire regarding an arrest in the juror's family;  (2) her parent had been arrested for robbery over 35 years ago;  and (3) she wrote on the questionnaire that because of the child abuse facts, she didn't know if she could be fair and that she had emotions and feelings which may have caused concern.4  The court stated:  “Even through the answers tend to lean in the favor of the prosecution in the case, neither side would want a juror deciding a case based upon emotions, rather than the facts and the evidence.”

Appellant contends that this explanation for the court's refusal to find a prima facie case of group bias ignores and is inconsistent with several highly relevant circumstances.   He argues, first, that omitting an answer on a 17-page, 63-item questionnaire could not possibly be deemed a legally valid, race-neutral reason for challenging Ms. E. in light of the fact that white members of the venire who failed to answer questions served on the jury without objection from the district attorney.

The arrest of Ms. E.'s parent over 35 years ago, when Ms. E. was an infant, cannot fairly be considered a race-neutral reason for her challenge, appellant argues, because the prosecutor failed to challenge several whites who served on the jury who themselves or whose families were much more recently the subject of criminal charges.   Juror number 9's brother was arrested for battery on a police officer just three years earlier.   The brother of alternate juror number 1 was arrested for statutory rape seven years earlier.   Finally, three other seated jurors had themselves been arrested for driving under the influence of alcohol or a related charge.

Appellant argues that the trial court mischaracterized Ms. E.'s written response “don't know” to question 40, which inquired whether there was anything about the nature of the charges that caused her to question her ability to be fair and impartial.   The court characterized this answer as saying Ms. E. didn't know if she could be fair.   But this discounts Ms. E.'s clarification of the ambiguity of her written answer by her oral statement to the court that she believed she could be fair and impartial.   Further, as might be expected, Ms. E. was hardly the only member of the venire to initially express an emotional reaction to child abuse charges.   Answers to the questionnaire given by numerous other jurors, both female and male, also indicated abhorrence of child abuse but, like Ms. E., later orally affirmed that they could nonetheless be fair and impartial, and were not challenged by the prosecution.

 Considering the record in its entirety, and giving particular weight to the considerations our Supreme Court identified as relevant in Wheeler,5 we determine that appellant established a prima facie case that the prosecution's use of peremptory challenges to excuse Clodette T. and Sara E. reflect group bias.6  The prosecutor struck all African-Americans on the venire;  used a disproportionate number of his peremptory challenges against members of that racial group (3 out of 3 or 100% of the African-Americans, versus 9 out of 40 or 22% of the other prospective jurors); 7  completely excluded African-Americans from the jury;  failed to engage in any questioning whatsoever of any prospective African-American juror despite invitations to do so from the court, and despite a warning to the district attorney that his conduct seemed “very close” to a Wheeler violation.   In addition, two of the three African-American members of the venire (Sara E. and Ruby L.) were peremptorily challenged immediately after the trial court completed its routine questioning.   Finally, as earlier discussed, the record is bereft of any race-neutral explanation for these challenges.   Nothing in the oral or written responses on voir dire of Clodette T. and Sara E., or anything else in the record, significantly differentiates them from members of the venire who served on the jury.   Nor is there anything in their testimony suggesting they would be hostile to the prosecution;  indeed, as the court observed, Sara E.'s answers “tend to lean in favor of the prosecution.”   We are, in short, unable to find any basis in the record for the trial judge's stated conclusion that “[t]he People are not exercising challenges based on group bias, rather than individual bias.”

It appears to us that the court's determination that appellant failed to establish a prima facie case of group bias was based not on the existence of a persuasive race neutral explanation-because neither the district attorney nor the court produced such a reason-but on the belief that the presumption a party exercising a peremptory challenge is doing so on a constitutionally permissible ground can be rebutted only on a stronger showing of group bias than a reasonable inference.   But, as we have explained, that theory, which is at the heart of the opinion in People v. Bernard, supra, 27 Cal.App.4th at p. 465, 32 Cal.Rptr.2d 486, has been repudiated by the Supreme Court.   For purposes of establishing a prima facie case of a Wheeler violation, an inference is “reasonable,” or a likelihood “strong” if the record provides no apparent race-neutral reason for exercising a peremptory challenge.   That is the case here.

The trial court's refusal to find a prima facie case ended the inquiry before the prosecutor would have been required to provide justification for his challenges.   If the prosecutor had a reasonable race neutral explanation for peremptorily challenging these two members of the venire, it simply does not appear in the record.   When, as here, no prima facie case is found and thus no explanation given, the reviewing court is left to speculate about possible explanations which, in this case, are not readily apparent.   It may reasonably be inferred from the record that the district attorney excluded Clodette T. and Sara E. because of their race, as that is the only discernible difference between these members of the venire and those who served on the jury.   As earlier noted, in reviewing California trial court compliance with Wheeler, which it treats as the functional equivalent of Batson (McClain v. Prunty, supra, 217 F.3d 1209, 1216, fn. 2;  Tolbert v. Page, supra, 182 F.3d 677, 679 (en banc)), the Ninth Circuit has repeatedly declared that peremptory challenges “cannot be lawfully exercised against potential jurors of one race unless potential jurors of another race with comparable characteristics are also challenged.”  (McClain v. Prunty, supra, 217 F.3d at p. 1221;  Turner v. Marshall, supra, 121 F.3d 1248, 1251, cert. den.  522 U.S. 1153, 118 S.Ct. 1178, 140 L.Ed.2d 186 (1998).)   That test has not been met in this case.   By unjustifiably relieving the district attorney of the responsibility to provide a race-neutral explanation for these exclusions, the trial court abused its discretion and a new trial is therefore required.   (People v. Montiel, supra, 5 Cal.4th at p. 909, 21 Cal.Rptr.2d 705, 855 P.2d 1277;  People v. Fuentes, supra, 54 Cal.3d at p. 716, fn. 4, 286 Cal.Rptr. 792, 818 P.2d 75.)

This might easily have been avoided.  “The procedure designed in Wheeler to prevent racial discrimination in jury selection, and preserve public confidence in our courts, is not onerous.   Ordinarily it takes but a few moments for a party who uses a peremptory challenge to explain why an objecting adversary has failed to establish a prima facie case or, if the court finds a prima facie case has been established, to provide a racially neutral explanation for the challenge if this can be done.   Trial courts should not lightly relieve counsel of these important responsibilities, either by too readily accepting vague explanations (see, Colbert, Challenging the Challenge:  Thirteenth Amendment as a Prohibition Against the Racial Use of Peremptory Challenges (1990) 76 Cornell L.Rev. 1 at pp. 97-98;  Bell, Race, Racism and American Law (3d ed.1992) § 5.16.4, p. 383) or, as appears to have occurred here by elevating the ‘strong likelihood’ standard to a level that can rarely be met by trial counsel, who are ordinarily in the difficult position of having to prove a negative, and must do so without the opportunity for preparation in advance under the considerable pressures imposed by trial proceedings.”  (People v. Buckley, supra, 53 Cal.App.4th at pp. 681-682, 61 Cal.Rptr.2d 860, dis. opn. of Kline, P.J., fn. omitted.)

II.**

III.

DISPOSITION

The judgment is reversed.

For at least four different reasons, I respectfully but strongly dissent.

1. First of all, the majority apparently believes that footnote 7 in our Supreme Court's opinion in People v. Box (2000) 23 Cal.4th 1153, 1188, 99 Cal.Rptr.2d 69, 5 P.3d 130 (Box ), signals a major shift from its previous position regarding the applicable test under People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Wheeler ) and Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (Batson).   I disagree;  clearly, all our Supreme Court was saying by that footnote was:  “these two terms mean the same thing to us and always have, so what's all the fuss about?”

That fuss was, as the majority suggests, the result of an opinion of a panel of the Court of Appeals for the Ninth Circuit, Wade v. Terhune (9th Cir.2000) 202 F.3d 1190 (Wade).   While affirming a lower court's denial of a petition for a writ of habeas corpus, Wade spent considerable space gratuitously suggesting that past California Supreme Court opinions had differentiated between the two standards and had, erroneously, applied only the “ ‘strong likelihood’ ” standard.1  (Wade, supra, 202 F.3d at pp. 1195-1198.)

The Wade opinion appeared in print in February 2000, after Box, a capital case, had been fully briefed.2  Obviously, our Supreme Court wanted to promptly reassure the lower courts of this State that, the Ninth Circuit panel to the contrary, it knew what it was doing regarding the Wheeler/Batson standard, and it opted to do so in both a prompt and succinct way via footnote 7 of Box. The majority treats this as some sort of major event.   This is plainly incorrect.   Indeed, the Court specifically noted in that footnote (as, also, had the Ninth Circuit panel in Wade ) that even as early as Wheeler (which, of course, preceded the United States Supreme Court's Batson decision by eight years), both terms were used synonymously within a page of one another.  (See Wheeler, supra, 22 Cal.3d at pp. 280-281, 148 Cal.Rptr. 890, 583 P.2d 748;  Wade, supra, 202 F.3d at p. 1196.)

The long and short of all this is that, the majority of this court and Wade to the contrary, our Supreme Court has been using the Batson standard all along, and footnote 7 in Box did not signal any change on that issue.   Additional proof of that fact came in an opinion authored by Justice Mosk and filed a few days after Box. (People v. Ayala (2000) 24 Cal.4th 243, 260, 99 Cal.Rptr.2d 532, 6 P.3d 193.)   As the majority points out in its footnote 3, in the course of that decision the Court quoted from Box and, in so doing, put the term “reasonable inference” in brackets after the term “strong likelihood.”   I don't know how that Court could have signaled more emphatically that, in its view, the two terms do now, and always have, meant the same thing.

The majority, however, is obviously not persuaded.   Relying upon various and sundry dictionary definitions of the relevant terms and, even more importantly, repeated citations to federal, especially Ninth Circuit, authority, the majority contends, at least as I understand matters, that both the Box footnote and the bracketed phrase in Ayala are substantially inexplicable.3

I remind my colleagues in the majority that, their strong and honest feelings notwithstanding, we are an intermediate appellate court that is bound to follow the rulings of our Supreme Court, even those we feel are not adequately explained.   Thus, and because I have no difficulty understanding the (admittedly cursory) Box footnote, I think the majority errs in not following its clear direction.

2. Most unfortunately in my view, the majority opinion gives only lip service to the principle that an appellate court should pay deference to a trial court's ruling on a Wheeler/Batson motion.   The majority briefly alludes to this principle (maj. opn. at p. 735), but immediately thereafter proceeds to pay no deference whatsoever to the trial court's ruling.

And it is not as if the direction to pay such deference has been vague:  our Supreme Court has repeated it practically every time a Wheeler issue has been before it-which is a lot of times.   Indeed, in the important case of People v. Johnson (1989) 47 Cal.3d 1194, 1221, 255 Cal.Rptr. 569, 767 P.2d 1047 (Johnson), where the Court disapproved of an earlier effort to modify the Wheeler standard (People v. Trevino (1985) 39 Cal.3d 667, 217 Cal.Rptr. 652, 704 P.2d 719), the standard was articulated as one of “truly giving great deference” to the trial court.  (Johnson, supra, 47 Cal.3d at p. 1221, 255 Cal.Rptr. 569, 767 P.2d 1047.)   Most recently, in People v. Jones (1998) 17 Cal.4th 279, 294, 70 Cal.Rptr.2d 793, 949 P.2d 890, the Court stressed that “ ‘ “ ‘[b]ecause Wheeler motions call upon trial judges' personal observations, we view their rulings with ‘considerable deference’ on appeal.” ' ” To the same effect are the Court's holdings in People v. Howard (1992) 1 Cal.4th 1132, 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315, People v. Crittenden (1994) 9 Cal.4th 83, 117, 36 Cal.Rptr.2d 474, 885 P.2d 887, and People v. Mayfield (1997) 14 Cal.4th 668, 723, 60 Cal.Rptr.2d 1, 928 P.2d 485.   Even the United States Supreme Court, in its Batson opinion, pointedly acknowledged this principle.   It said:  “Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.”  (Batson, supra, 476 U.S. at p. 98, fn. 21, 106 S.Ct. 1712.)

Our Supreme Court elaborated on this rationale for the required deference in Sanders, supra, 51 Cal.3d 471, 273 Cal.Rptr. 537, 797 P.2d 561:  “We reiterate that ruling on Wheeler motions ‘ “requires trial judges to make difficult and often close judgments.   They are in a good position to make such determinations, however, on the basis of their knowledge of local conditions and of local prosecutors.”  [Citation.]   They are also well situated to bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience.   We are confident of their ability to distinguish a true case of group discrimination by peremptory challenges from a spurious claim․’ (Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748, quoting Kuhn, Jury Discrimination:  The Next Phase (1968) 41 So.Cal.L.Rev. 235, 295, fn. 5;  see also Johnson, supra, 47 Cal.3d at pp. 1219-1222, 255 Cal.Rptr. 569, 767 P.2d 1047.)   Applying this standard of giving considerable deference to the determination of the trial court, ‘we see no good reason to second-guess [the trial court's] factual determination’ (Johnson, supra, at p. 1221) [255 Cal.Rptr. 569, 767 P.2d 1047] that the prosecutor was not motivated by bias against Hispanics.”  (Sanders, supra, 51 Cal.3d at p. 501, 273 Cal.Rptr. 537, 797 P.2d 561.)

So, how much deference does the majority pay to this trial court's “powers of observation” which necessarily impact its “evaluation of credibility,” its “understanding of trial techniques,” or its “broad judicial experience”?   The answer is disturbing:  aside from a single mention of the word “deference” (maj. opn. at p. 735), none at all.   Thus, the majority (1) totally avoids the trial court's careful statement of its reasons for concluding that no prima facie case of discrimination was shown by the prosecution's peremptory challenge of prospective juror Ruby L. (maj. opn. at p. 740, fn. 6) and (2) totally reevaluates, as if it were the trial court itself, the validity of that court's reasons for coming to the same conclusion regarding prospective juror Sara E. (maj. opn. at pp. 738-740).

The apogee of the majority's second-guessing of the trial court regarding that potential juror concerns that court's verbal inquiry as to whether, in light of Sara E.'s ambiguous answer to a questionnaire inquiry, she could be fair and impartial.   The majority says that the trial court “discount[ed] Ms. E.'s clarification of the ambiguity of her written answer by her oral statement to the court that she believed she could be fair and impartial.”  (Maj. opn. at p. 740.)   But it was the trial court and not the majority that saw and heard the answer from Ms. E. to its question and, therefore, it is for that court and not us to evaluate what weight, if any, to give to that answer.   That is what the United States Supreme Court had in mind when it noted the ability of trial courts to “evaluat[e] ․ credibility” (Batson, supra, 476 U.S. at p. 98, fn. 21, 106 S.Ct. 1712) and what our Supreme Court meant when it observed that trial courts have necessarily unique “ ‘powers of observation.’ ”   (Sanders, supra, 51 Cal.3d at p. 501, 273 Cal.Rptr. 537, 797 P.2d 561, quoting Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.)

3. Having substantially disregarded the principle of deference, the majority compounds its error by then indulging in a multitude of comparisons of the questionnaire answers of two of the three challenged jurors to those of prospective jurors of other races.

To its credit, the majority appreciates that it is navigating in, as far as California is concerned, uncharted water.   It recognizes that appellant's challenge “rests in some measure [I would have said ‘almost entirely’] on a comparison of the written and oral voir dire testimony of the African-Americans excused by the prosecution with that of other prospective jurors who were not excused, which appellant claims are materially indistinguishable.   This requires us to consider whether and, if so, to what extent such comparisons may be used to show a prima facie case of group bias.   Unfortunately, this is another area in which the application of Wheeler by the California courts has differed somewhat from federal judicial application of Batson.”  (Maj. opn. at p. 735.)   The majority then goes on to indicate, once again, its clear preference for the federal approach, especially that espoused by the Ninth Circuit.

There is, the majority's implication to the contrary, nothing ambiguous about our Supreme Court's view of such comparative analyses.   It has repeatedly admonished that such comparisons should not be undertaken by an appellate court.   For example, in People v. Turner (1994) 8 Cal.4th 137, 32 Cal.Rptr.2d 762, 878 P.2d 521, in rejecting an appellant's challenge to a trial court finding of no prima facie case of discrimination, the Court said:  “Defendant argues, however, that this basis was insufficient here because the prosecutor did not excuse other non-Black jurors who displayed similar intellectual limitations.   However, we have previously rejected a procedure that places an ‘undue emphasis on comparisons of the stated reasons for the challenged excusals with similar characteristics of nonmembers of the group who were not challenged by the prosecutor,’ noting that such a comparison is one-sided and that it is not realistic to expect a trial judge to make such detailed comparisons midtrial.  [Citation.]  [¶] ․ Moreover, ‘the very dynamics of the jury selection process make it difficult, if not impossible, on a cold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror [who] on paper appears to be substantially similar.’ ”  (Id. at pp. 169-170, 32 Cal.Rptr.2d 762, 878 P.2d 521.)   More recently, the Court said precisely the same thing in Box (supra, 23 Cal.4th at p. 1190, 99 Cal.Rptr.2d 69, 5 P.3d 130), also in the context of a prima facie ruling.  (See also People v. Fuentes (1991) 54 Cal.3d 707, 715, 286 Cal.Rptr. 792, 818 P.2d 75.)

The majority tries to avoid this rule by three patently fallacious devices.   First of all, it interprets the “undue emphasis” phrase in the quoted passage from Turner as an invitation to put its foot in that door and try to open it further.   In so doing, it carefully avoids discussing language in Supreme Court cases that make clear that the prohibition is absolute.   Thus, in People v. Montiel (1993) 5 Cal.4th 877, 21 Cal.Rptr.2d 705, 855 P.2d 1277 (Montiel ), the Court stated:  “If the trial court makes a ‘sincere and reasoned effort’ to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.   In such circumstances, an appellate court will not reassess good faith by conducting its own comparative juror analysis.   Such an approach would undermine the trial court's credibility determinations and would discount ‘ “ ‘the variety of [subjective] factors and considerations,’ ” ' including ‘prospective jurors' body language or manner of answering questions,’ which legitimately inform a trial lawyer's decision to exercise peremptory challenges.”  (Id. at p. 909, 21 Cal.Rptr.2d 705, 855 P.2d 1277, italics added.)

Quoting this passage, the Court said even more recently:  “Just as an appellate court will not compare the responses of rejected and accepted jurors to determine the bona fides of the justifications offered, so the trial court itself has no obligation to perform such an analysis.  ‘[W]e fail to see how a trial judge can reasonably be expected to make such detailed comparisons mid-trial.’  [Citation.]   Moreover, as we have indicated, such an analysis is largely beside the point, because it ignores the legitimate subjective concerns ‘that go into a lawyer's decision to select certain jurors while challenging others that appear to be similar [on the cold record].’  [Citation.]”  (People v. Arias (1996) 13 Cal.4th 92, 136, 51 Cal.Rptr.2d 770, 913 P.2d 980, fn.   16 (Arias ), italics added.)

I suggest that two recent doses of “will not” from our Supreme Court cannot, the majority to the contrary, translate into “may.” 4

Second, the majority argues that our Supreme Court's concern about comparative analyses obtains only in those cases where the prosecutor was either asked for or volunteered explanations concerning the questioned challenges, but does not apply in cases, such as this, where no such explanation was asked for or given.   But there is absolutely no language in any of the cases cited by the majority even implying any such distinction.   Indeed, several of the more recent cases containing the admonition against appellate courts engaging in comparative analyses were cases in which the trial court had ruled that no prima facie case had been established.  (Box, supra, 23 Cal.4th at p. 1190, 99 Cal.Rptr.2d 69, 5 P.3d 130;  People v. Turner, supra, 8 Cal.4th at pp. 169-170, 32 Cal.Rptr.2d 762, 878 P.2d 521.)   Indeed, the only case relied upon by the majority where the admonition against comparative analyses did not arise in the context of a challenge regarding a prima facie case was Johnson, supra, 47 Cal.3d at page 1220, 255 Cal.Rptr. 569, 767 P.2d 1047.5  This fact, plus the unequivocal statements in Montiel and Arias, combine to demolish the distinction so laboriously constructed by the majority.

Third, the majority suggests that perhaps our Supreme Court doesn't really mean what it says regarding comparative analyses because, in two decisions, the Court itself indulged in comparisons.   The majority is flatly wrong.   The passage from People v. Crittenden, supra, 9 Cal.4th at page 119, 36 Cal.Rptr.2d 474, 885 P.2d 887, which the majority contends reveals an inconsistency in the Court's application of this rule (maj. opn. at p. 736) does no such thing.   As a simple reading of it demonstrates, the Court was simply noting that Crittenden's “comparison” argument was not even worth debating because (1) all but one of the non-African-American prospective jurors who expressed doubt about the death penalty were also excused by the prosecution and (2) the only one who wasn't was called “later in the proceedings, when the prosecutor's remaining challenges were few.” 6

The majority also suggests that a few sentences in People v. Jones, supra, 17 Cal.4th at page 295, 70 Cal.Rptr.2d 793, 949 P.2d 890, demonstrates that the Court endorses comparative analyses.  (Maj. opn. at p. 736.)   It is, I believe, constructive to quote the two sentences the majority relies upon:  “The implication [of the defendant's argument] is that the Black prospective jurors were singled out for special scrutiny.   On this record, however, we are constrained to disagree.   There is evidence to support the court's rulings on the four Black prospective jurors in question, enough to reject the defendant's claims of Wheeler error.”  (Id. at p. 295, 148 Cal.Rptr. 890, 583 P.2d 748.)

I simply do not understand how the majority can conclude from these three plain vanilla sentences that, contrary to its repeated and emphatic words in many other decisions, our Supreme Court in fact approves of comparative analyses of the handling of prospective jurors.   Since its emphatic disapproval of the comparative analysis system espoused (and indeed undertaken) by the majority in People v. Trevino, supra, 39 Cal.3d 667, 217 Cal.Rptr. 652, 704 P.2d 719 (see Johnson, supra, 47 Cal.3d at pp. 1220-1221, 255 Cal.Rptr. 569, 767 P.2d 1047), our Supreme Court's position has been unwaveringly negative on that subject.   I hope very much that the majority in this case is not suggesting that we should return to the Trevino era of wholesale appellate adjudication on this subject.   That is, nonetheless, the effect of its opinion.   For that reason, if no other, I strongly urge the Supreme Court to grant review of the majority's decision.

4. Finally, I submit that the record before us contains ample justification for the trial court's ruling that no prima facie case had been established.   It will be recalled that the ultimate ruling by the trial court under review here was as to the second defense Wheeler motion.   That motion encompassed the prosecutor's peremptory challenges to three African-American jurors, Ruby L., Sara E., and Clodette T. The trial court made specific comments on the record regarding the apparent justifications for the challenges to the first two, Ruby L. and Sara E. It made no specific comment regarding Clodette T.

The majority takes these three in reverse order.   As far as Ruby L. is concerned, it seems to believe that the trial court's ruling regarding her is almost irrelevant.   It buries its only reference to that ruling in a footnote 20 pages into its opinion (maj. opn. at p. 740, fn. 6), even though appellant specifically made it a part of his appeal.   The majority simply says that, as to this prospective juror, “the trial court seemed to believe [she] might be unable to fully understand the proceedings.” (maj. opn. at p. 740, fn. 6.) A slight understatement, I suggest;  the trial court not only “seemed to believe” this, it clearly did and it was clearly right.

In addressing the challenge to this juror, which precipitated the second Wheeler motion, the trial court noted, among other things, that (1) “the Court had concerns with regard to her qualifications in this matter based upon her answers to the questionnaire,” (2) Ruby L. had a sister who “had had drug charges,” (3) “she herself felt that she had difficulty understanding things”, and (4) her “answers on the questionnaire ․ would have justified a peremptory challenge by either side․” 7

In short, Ruby L. was a hopeless prospective juror from the prosecution's standpoint, and the trial court was clearly correct in ruling that its challenge of her neither raised nor contributed to the raising of a prima facie Wheeler issue.   But the majority omits all this and, in so doing, does a grave injustice to the trial court.   We are, after all, reviewing the entirety of its ruling on the Wheeler/Batson issue.   Put another way, the issue before us is, was the trial court correct in finding, as to these three African-American jurors, that no prima facie violation of Wheeler had been shown?   But, apparently, because the record as to one of those three so clearly supports the trial court's ruling and, conversely, undermines the majority's position, that portion is consigned to the near-oblivion of a footnote and, even there, half-heartedly explained.   I think this is quite inappropriate.   Appellate courts regularly give parties to appeals before them a hard time when they cite only the favorable-to-them parts of the record.   We should pay a trial court at least the respect of reciting the full and complete basis of its ruling before reversing it.

As to the remaining two prospective jurors, the majority paints with a broad brush by proclaiming that “the record is bereft of any race-neutral explanation for these challenges.”  (Maj. opn. at p. 741.)   The majority's own opinion shows that this is utterly wrong;  most of the preceding four pages of its opinion are devoted to quarreling with the trial court over the proper weight to be placed upon and interpretation given to (1) Sara E.'s failure to answer question 30 regarding whether either she or a family member had ever been arrested, (2) the fact that one of her parents had, in fact, been arrested for robbery, (3) her “don't know” answer to a written question as to whether the fact that the case involved allegations of murder of a minor and child abuse would affect her ability to be fair and impartial.

But the strongest basis for the peremptory challenge to Sara E. came from her reluctant responses to the trial court's questioning of her regarding her failure to answer question 30 on the questionnaire.   That revealing dialogue went like this:

“THE COURT:  ․ You or anybody close to you ever been arrested?

“MS. E.:  I can answer that.

“THE COURT:  Was it you or someone else?

“Ms. E.:  Someone else.

“THE COURT:  How is that person related to you?

“Ms. E.:  Parent.

“THE COURT:  What was the person arrested for?

“Ms. E. I believe it was robbery.

“THE COURT:  Was that in this county or someplace else?

“Ms. E.:  Someplace else.

“THE COURT:  And how long ago are we talking about?

“Ms. E.:  Over thirty-five years ago.”

In short, it took six questions from the trial court to elicit a full and complete answer to question 30 on the questionnaire.   I respectfully suggest that, after that series of questions and answers, any prosecutor who opted to leave Sara E. “in the box” ought to consider a different career.

Also present in the record, although not cited by the trial court,8 is the fact that Sara E. had had “legal training,” clearly a “race-neutral” reason for rejecting a prospective juror.  (See People v. Crittenden, supra, 9 Cal.4th at p. 119, 36 Cal.Rptr.2d 474, 885 P.2d 887.)   Additionally, and as noted by the majority, she stated in answer to one of the written questions that, although she would “not allow my emotions to get in the way of the verdict,” she was “deeply saddened that [the victim in the case] was an eighteen month old child.”   I suggest that clearly there were more than ample reasons for the prosecution to peremptorily challenge Sara E. and that, by so doing, it did not raise a prima facie case of race discrimination.

Which leaves only Clodette T. As noted both above and by the majority, the trial court made no mention of its views regarding her in its ruling that no prima facie case had been shown.   But a review of the record discloses, again as noted by the majority, that (1) she was childless (this case involved the death and alleged abuse of a minor),9 (2) the police had made no arrest after the robbery of her home five or six years ago, and (3) she omitted to answer the two questions in the questionnaire dealing with her opinions of prosecuting and defending attorneys.

I submit that, giving the required deference to the trial court, it could reasonably have found that, considered together with the ample justifications in the record for the challenges to Ruby L. and Sara E., the challenge to Clodette T. did not, either alone or in combination with the others, present a prima facie case of a violation of Wheeler.

FOOTNOTES

1.   Bernice L. was later dropped from the motion after it was ultimately determined that her racial background was “Indian.”

2.   Appellant cited only Wheeler in his motions for a mistrial and did not mention the federal Constitution or the Batson case.   The People maintain that appellant's failure to articulate the federal basis for his objection to the peremptory challenges waives the claim, citing People v. McPeters (1992) 2 Cal.4th 1148, 1174, 9 Cal.Rptr.2d 834, 832 P.2d 146. In McPeters, the court found the defendant had waived the asserted Sixth Amendment ground by failing to raise it in connection with his Wheeler motion, but it nevertheless rejected the claim on its merits.  (McPeters, supra, 2 Cal.4th at p. 1174, 9 Cal.Rptr.2d 834, 832 P.2d 146.)   Appellant denies he waived his federal rights, citing Ford v. Georgia (1991) 498 U.S. 411, 418-419, 111 S.Ct. 850, 112 L.Ed.2d 935, which held a defendant's objection to racial discrimination in jury selection was sufficient to invoke his federal right to be free of racial discrimination in jury selection under Batson, even if he did not cite Batson or describe with particularity the exact federal provision violated.  (See also Turner v. Marshall (9th Cir.1995) 63 F.3d 807, 811, fn. 1 [challenge framed in terms of Wheeler construed to allege Batson ];  overruled on other grounds by Tolbert v. Page (9th Cir.1999) 182 F.3d 677.)   The debate as to whether appellant made and preserved a Batson claim makes sense only if, as the parties seem to believe, it is more difficult to establish a prima facie case under Wheeler than under Batson.   As later discussed, our Supreme Court has recently made it clear that Wheeler imposes the same standard as Batson.   The question whether appellant waived a Batson claim is therefore now moot.

3.   Prior to Box, our Supreme Court made no effort to clarify the ambiguity in Wheeler.   Nor has it yet done so since Box. In People v. Ayala (2000) 24 Cal.4th 243, 99 Cal.Rptr.2d 532, 6 P.3d 193, Justice Mosk, writing for the majority, simply states in passing that a party claiming peremptory challenges are being used to strike jurors on the ground of group bias must, among other things, “ ‘ “ ‘show a strong likelihood [or reasonable inference] that such persons are being challenged because of their group association․’ ” ' ” (Id. at p. 260, 99 Cal.Rptr.2d 532, 6 P.3d 193, brackets in original, quoting People v. Box, supra, at pp. 1187-1188, 99 Cal.Rptr.2d 69, 5 P.3d 130).

4.   In defense of the trial court's ruling, the dissent mentions as an additional justification the fact that Sara E. answered “yes” to question 28:  “Do you have any legal training or have you taken any law courses?”   The same answer was given by juror number 11, who was not challenged.   The trial court attached so little significance to Sara E.'s answer that it did not query her on it during voir dire, whereas juror number 11 was questioned at length about her legal training and experience (pre-law as an undergraduate;  worked at law firm in high school and college).

5.   With respect to the type of evidence that may be used to establish a prima facie case of group bias, the Wheeler court stated that the moving party “may show [1] that his opponent has struck most or all of the members of the identified group from the venire, or [2] has used a disproportionate number of his peremptories against the group.  [3] He may also demonstrate that the jurors in question share only this one characteristic-their membership in the group-and that in all other respects they are as heterogeneous as the community as a whole.  [4] Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or to ask them any questions at all.”  (22 Cal.3d at pp. 280-281, 148 Cal.Rptr. 890, 583 P.2d 748, fn. omitted.)

6.   A new trial is required if there was a prima facie case of a Wheeler violation as to even one of a cognizable group of prospective jurors.  (People v. Montiel, supra, 5 Cal.4th 877, 909, 21 Cal.Rptr.2d 705, 855 P.2d 1277;  People v. Fuentes (1991) 54 Cal.3d 707, 716, fn. 4, 286 Cal.Rptr. 792, 818 P.2d 75.) Accordingly, our finding of a prima facie case as to Ms. T. and Ms. E. makes it unnecessary to review the validity of the peremptory challenge to Ruby L., the third and last potential African-American juror, who the trial court seemed to believe might be unable to fully understand the proceedings.

7.   The prosecutor exercised a total of 12 peremptory challenges, defense counsel exercised 16 such challenges.

FOOTNOTE.   See footnote *, ante.

1.   The extended essay offered by the Ninth Circuit panel was unnecessary to its result because it ultimately affirmed the federal district court's denial of a petition for a writ of habeas corpus.   That denial and affirmance brought to an end an attack on the Contra Costa Superior Court's handling of a Wheeler motion set forth in detail in our decision in People v. Buckley (1997) 53 Cal.App.4th 658, 61 Cal.Rptr.2d 860 (Buckley ).   In Buckley, with Presiding Justice Kline dissenting, we upheld the trial court's ruling that that appellant had not established a prima facie case that the prosecution's challenges were based on race.   Our Supreme Court denied review in Buckley (see 53 Cal.App.4th at p. 683, 61 Cal.Rptr.2d 860), and our opinion has been cited several times by other appellate courts dealing with appeals of Wheeler challenges.  (See, People v. Walker (1998) 64 Cal.App.4th 1062, 1069, 75 Cal.Rptr.2d 871;  People v. Trevino (1997) 55 Cal.App.4th 396, 409-410, 64 Cal.Rptr.2d 61 and Birdine v. Hubbard (N.D.Cal. Aug. 21, 2000, No. C99-037MJJ) 2000 WL 1229112, p. 3, the latter being a post-Wade denial of a petition for a writ of habeas corpus sought on Batson grounds.)

2.   Appellant's reply brief in Box was filed January 24, 2000.

3.   The majority also contends that, previously, the Court differentiated between the concepts of “strong likelihood” and “reasonable inference.”   It argues that in People v. Sanders (1990) 51 Cal.3d 471, 500 501, 273 Cal.Rptr. 537, 797 P.2d 561 (Sanders ), the Court expressed “the belief that a ‘strong likelihood’ of group bias requires greater evidence than a ‘reasonable inference’ of such bias․” (Maj. opn. at pp. 733-734.) This is simply incorrect.   The Supreme Court said no such thing and, indeed, the term “reasonable inference” nowhere appears in the cited pages of Sanders.

4.   The majority carefully avoids discussing the “will not” language in Montiel and Arias, and doesn't even cite the latter case.   It demonstrates its inattention (to be generous) to the language used in them by saying that “our Supreme Court has not precluded comparative analyses by reviewing courts but has simply declared that they should not place an ‘undue emphasis ’ on such an analysis.”  (Maj. opn. at pp. 735-736;  italics the majority's.)   The majority to the contrary, I think the phrase “will not” is a pretty good hint of an intent to “preclude.”

5.   Both Montiel and Arias are unclear regarding the precise procedural context of their rulings.   In Montiel, the trial court asked the prosecutor for his reasons without indicating one way or the other if it felt the defense had made a prima facie showing.  (Montiel, supra, 5 Cal.4th at pp. 907-910, 21 Cal.Rptr.2d 705, 855 P.2d 1277.)   However, the Court hinted that, in such circumstances, it might infer a finding of a prima facie case (id. at p. 910, fn. 8, 21 Cal.Rptr.2d 705, 855 P.2d 1277).   In Arias, there was no such inference because the trial court indicated it has “questions” about the defense's prima facie showing (indeed, the Court itself had doubts if such had been shown);  nonetheless, the prosecutor was asked for and gave his explanations.  (Arias, supra, 13 Cal.4th at pp. 133-139, 51 Cal.Rptr.2d 770, 913 P.2d 980.)

6.   In fact, in People v. Johnson, supra, 47 Cal.3d at p. 1220, 255 Cal.Rptr. 569, 767 P.2d 1047, the Court specifically noted, by way of support for its anti-comparison stance, that “the same factors used in evaluating a juror may be given different weight depending on the number of peremptory challenges the lawyer has at the time of the exercise of the particular challenge․” Crittenden, in the passage quoted by the majority, was simply adopting this additional reason for avoiding comparative analyses,

7.   The trial court was obviously referring to Ruby L.'s answers to such questions as 37(c), 38-40, and 61.   In these, she admitted that, e.g., she could not follow instructions to judge the credibility of all witnesses, including peace officers, by the same standards, could only commit to “try” to follow CALJIC No. 1.00 “regardless of the consequences,” and was not sure that she could be fair, given the nature of the charges and circumstances of the case.

8.   We are, of course, permitted to review the record for “ ‘ grounds upon which the prosecutor might reasonably have challenged’ the jurors in question.”  (People v. Howard, supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315;  see also our opinion in Buckley, supra, 53 Cal.App.4th at p. 667, 61 Cal.Rptr.2d 860.)

9.   A Ninth Circuit case the majority omits from its encomiums to that court says that “lack of family may have appeared relevant to the prosecutor in a case involving child abuse and reasonably could be deemed to constitute a non-discriminatory basis for striking the venireman.”   (U.S. v. Lewis (9th Cir.1988) 837 F.2d 415, 417, cert. den.  Lewis v. United States (1988) 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323.)

KLINE, P.J.

LAMBDEN, J., concurs.