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Court of Appeal, First District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward MOTTON, Defendant and Appellant.


Decided: September 20, 1984

Quin Denvir, State Public Defender, Neil Rosenbaum, Deputy State Public Defender, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Thomas A. Brady and Mark S. Howell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

On appeal from a judgment of conviction for second degree murder, appellant contends that the trial court erred in denying his motions for mistrial pursuant to People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.   We disagree and affirm the judgment.1

I. The Facts

The details of appellant's crime are not relevant to the published portion of this opinion.   Briefly stated, the evidence presented at trial showed that two neighbors saw appellant inflict multiple stab wounds upon the victim and then retreat into his apartment, where he was apprehended by police a few minutes later.   Blood on appellant's pants and on a knife found in his apartment was of type A, consistent with that of the victim and inconsistent with appellant's (type B).   Appellant presented a diminished capacity defense.

II. The Wheeler Motion

Appellant contends that the trial court erred in denying his motions for mistrial pursuant to People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.   That case established that when a charge is made that an attorney used peremptory challenges on the basis of group bias, the following rules apply.   First, “․ in any given instance the presumption must be that a party exercising a peremptory challenge is doing so on a constitutionally permissible ground.”  (Id., at p. 278, 148 Cal.Rptr. 890, 583 P.2d 748.)  “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.  [A prima facie case is made as follows.]   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.”  (Id., at p. 280, fn. omitted, 148 Cal.Rptr. 890, 583 P.2d 748.)   If the complaining party makes this prima facie case, the burden then shifts to his opponent “to show if he can that the peremptory challenges in question were not predicated on group bias alone.”  (Id., at p. 281, fn. omitted, 148 Cal.Rptr. 890, 583 P.2d 748.)

The trial court ruled that appellant had failed to make the requisite prima facie showing of discrimination and that therefore the district attorney was not required to justify his peremptory challenges.   This ruling finds ample support in the record, for defense counsel failed to make a complete record in support of his motion, and, in addition, all of the circumstances of the case did not support an inference that group bias was at work.

When defense counsel first made his Wheeler motion (People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748), he based it on the assertion that the district attorney had challenged “all the black female jurors.”   There was some confusion about whether his “head count” was correct.   At one point the court stated, “All right.   So your statement of all black women is accurate․”  But later the court indicated that it had not kept track of the prospective jurors in terms of black or white, and the next day, when defense counsel expanded his motion to include an allegation of the exclusion of all blacks, the court said, “I don't have any recollection how many.   You [attorneys] said in chambers how many, although yesterday your objection was directed to excusing every black female.   I haven't kept a record of how many black males that you have excused or haven't excused.   I just don't know, ․”  The court also said, “No, it's now gone.   There is no way I can recapture that, ․  And I'm not prepared to just guess.   I didn't look at them in this case.   I made no notation․  Now, if you made the request prior to the beginning of the jury selection, ․”

 These and other comments and rulings by the court accurately indicated that the first requirement for establishing a prima facie case had not been met, in that defense counsel had failed to make as complete a record as was feasible.   Voir dire of the first 41 prospective jurors was relevant to appellant's Wheeler motion (People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748), but defense counsel elicited no indication at all of the race of 22 of them.2  Questioning indicated that 1 was Hispanic 3 and that 12 others were not black.4  Argument on the motion implied that 6 others were black, but this was not clearly established by direct question and answer, as suggested in Wheeler (id., at p. 263, fn. 1, 148 Cal.Rptr. 890, 583 P.2d 748), or in any other manner.5

Even if we assume arguendo that the 22 racially unidentified jurors were “white” and that “black women,” the object of appellant's initial Wheeler motion, is a cognizable group within the meaning of the second requirement for a prima facie showing, the third requirement was not met in this case.   The rule of Wheeler requires the moving party to show “from all the circumstances of the case ․ a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.”  (Id., at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)   Here, when the district attorney passed the jury the first time, the panel included one black, Mr. Owens.6  When he passed the second time the panel included a black male and a black female, Mr. Owens and Ms. Jackson.7  At the time of the district attorney's third pass, the panel still included these two black members.8  And at the district attorney's fourth pass, the jury included one black female, Ms. Jackson.9

Thus, on four separate occasions the district attorney passed the jury when it contained one or two black members, and if defense counsel too had passed, the jury would have been sworn with that constitution.  (Pen.Code, § 1088.)   While it is true that, as voir dire continued, two more (apparently) black people were challenged by the prosecutor, so that ultimately the panel included no black members (assumed arguendo), we find that the district attorney's four-time acceptance of a jury which included black members supports the rejection of appellant's allegation of group bias and of Wheeler error.

 Accordingly, we hold that the trial court did not err in finding that a prima facie case had not been made and in declining to require the district attorney to explain the reasons for his peremptory challenges.

III. Counsel's Trial Strategy 10

IV. Discharge of Juror 10

V. Reduction of Verdict 10VI.

The judgment is affirmed.

I dissent from the Wheeler portion of the majority opinion.   I believe that the majority's treatment of appellant's Wheeler motion is unnecessarily restrictive and at odds with the intent and purpose of Wheeler.

A fair reading of the record shows that defense counsel fully complied with the directives of Wheeler when seeking redress for the apparent systematic exclusion of blacks from the jury.   First, he raised the point in a timely manner.   His Wheeler motion was made well before the jury had been sworn and appears to have been made as soon as defense counsel became aware that a pattern of systematic exclusion might be occurring.   In the course of the Wheeler discussions the timeliness of the motion was never at issue.   While Wheeler motions made after a jury has been sworn in have been deemed untimely, (People v. Ortega (1984) 156 Cal.App.3d 63, 70, 202 Cal.Rptr. 657) motions made well within the selection process have not been criticized.   (Ibid.)

Next, in keeping with Wheeler, defense counsel made “․ as complete a record of the circumstances as is feasible.”  (Emphasis added.)  (People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)   Wheeler does not require that the record be absolutely complete.   The intent of Wheeler would not be served by disqualifying counsel from bringing the motion for failure to document the race of every single juror who has been interviewed and passed upon or challenged, “when the composition of the jury is constantly changing under the influences of challenges.”  (Ibid. at 280, 148 Cal.Rptr. 890, 583 P.2d 748.)   Significantly, Wheeler does not require counsel to prove that every single juror whose challenge was allegedly motivated by group bias was, in fact, challenged for that reason.   Rather, it held that, “․ if the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted.”  (Emphasis added;  ibid., at 282, 148 Cal.Rptr. 890, 583 P.2d 748;  accord, People v. Fuller (1982) 136 Cal.App.3d 403, 421, 186 Cal.Rptr. 283.)

While Wheeler requires that the party making the motion create as complete a record as is feasible so as to preserve the ability to review the issue being raised, that burden need not be carried to extremes to defeat attempts to reasonably object to practices which undermine the right to a fair trial.   In the instant case, the record amply demonstrates the difficulty of accurately tabulating all of the demographic features of the jury panel as well as the sequence of events during voir dire.   The record shows that at one point, the court's recollection of the number of challenges exercised thus far was at odds with the count kept by both attorneys.   At another point, the court believed that defense counsel had challenged a juror admittedly challenged by the district attorney.   The court repeatedly noted that it had no recollection of the racial make-up of jurors who had been excluded.

Difficulties notwithstanding, defense counsel here discharged his duty to substantiate his Wheeler claim.   When he initially made his motion he noted that the district attorney had stricken all black women from the panel, as the trial court conceded.   On the following day when defense counsel renewed his Wheeler objection after the prosecutor had dismissed a black male, the court noted that it had no recollection of how many black jurors had been stricken.

When defense counsel attempted to establish a record as to the number of blacks excluded, he met resistance from the trial court.   First, the court countered by noting that defense counsel, himself, had excused “some blacks.”   However, this matter has no bearing whatsoever on the defense assertion that the prosecutor was systematically excluding blacks.   If he had reason to believe that a potential black juror was biased, defense counsel was not forced to accept that juror to preserve his right to argue that the prosecution was systematically excluding blacks for improper reasons.

The court further intimated that defense counsel should have made his request to record the race of jurors at the beginning of jury selection to create a proper record.   While such a practice would be ideal, Wheeler does not require prescience.   Rather, by requiring that as complete a record as is feasible be made (ibid., at 280, 148 Cal.Rptr. 890, 583 P.2d 748) our Supreme Court envisioned the difficulties of recording all relevant demographic details of potential jurors.   The cognizable group that may be improperly stricken from the jury panel cannot always be anticipated by counsel, as an opponent who is striking jurors improperly will not give notice of his intent to exclude all blacks, or all women.

Defense counsel also satisfied the next requirement for a prima facie Wheeler case by establishing that the group of potential jurors who were stricken for improper reasons constituted a “cognizable group.”   As noted above, when he initially made his Wheeler motion, defense counsel argued that all black women were being systematically stricken;  he renewed his motion after a black male had been excused.   Thus it is not entirely clear whether on appeal appellant's argument focuses on black women or all blacks as the cognizable group.   This distinction, however, is not critical.   Even if we consider the motion as originally made, black women constitute a “cognizable group.”  “A group to be ‘cognizable’ ․ must have a definite composition ․ there must be some factor which defines and limits the group.   A cognizable group is not one whose membership shifts from day to day or whose members can be arbitrarily selected․  There must be a common thread which runs through the group, a basic similarity in attitudes or ideas or experience․”  (U.S. v. Guzman (S.D.N.Y.1972) 337 F.Supp. 140, 143–144, affd. (2d Cir.1972) 468 F.2d 1245, cert. den. (1972) 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602, quoted in People v. Estrada (1979) 93 Cal.App.3d 76, fn. 7 at p. 90, 155 Cal.App.3d 76.)   Where blacks comprise a significant portion of the population—particularly in Alameda county where blacks comprise the majority population in some areas—black women are a vital part of that “ideal cross-section of the community” that should be represented on jury panels.   (People v. Wheeler, supra, 22 Cal.3d at p. 277, 148 Cal.Rptr. 890, 583 P.2d 748.)   They share “a common perspective arising from their life experience” and their participation on a jury “․ enhance[s] the likelihood that the jury will be representative of significant community attitudes․”  (People v. Harris (1984) 36 Cal.3d 36, 51, 201 Cal.Rptr. 782, 679 P.2d 433.)

The trial court's comparison of black women as a cognizable group to “men who wear toupees” failed to acknowledge the “concurrence of racial and sexual identity,” (as aptly phrased by defense counsel) which informs the attitudes of this group.   This is of special import when we consider the fact that black women face discrimination on two major counts—both race and gender—and their lives are uniquely marked by this combination.   When the court asked:  “What function does a black woman fulfill that the white woman doesn't [on a jury]?” the entire thrust of Wheeler was overlooked.   It is not a question of the merits of one group in contrast to another.   At the very core of Wheeler is the notion that diversity “[in] beliefs and values [that] jurors bring from their group experiences” must be encouraged in order “․ to achieve an overall impartiality” in their decision-making processes.  (Wheeler, supra, 22 Cal.3d at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748.)   As Justice Marshall observed in Peters v. Kiff (1972) 407 U.S. 493, 503–504, 92 S.Ct. 2163, 2169, 33 L.Ed.2d 83, “[t]he exclusion from jury service of a substantial and identifiable class of citizens has a potential impact that is too subtle and too pervasive to admit of confinement to particular issues or particular cases ․ when any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.   It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that their exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.”  (Emphasis added.)   Justice Tobriner in his dissent in Rubio v. Superior Court (1979) 24 Cal.3d 93, 110, 154 Cal.Rptr. 734, 593 P.2d 595, insightfully added, “The subtleties and complexities of human experiences, beyond the court's capabilities of evaluation, constitute the underpinning of the cross-section requirement.   We are simply not in a position to make fine judgments as to the fungibility of identifiable segments of the community.”

Defense counsel also satisfied the third requirement for a prima facie showing of group bias under Wheeler.   The criteria mentioned in Wheeler as indicia of challenges based upon group association are demonstrated by the record below.   First, the defense demonstrated that the prosecutor struck “most or all of the members of the identified group from the venire, or used a disproportionate group number of his peremptories against the group.”  (Id., 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)   In his original Wheeler motion, defense counsel pointed out that:  (1) all of the black women had been excused by the prosecutor;  and (2) that of the eight peremptory challenges exercised by the prosecutor, five (or 62.5%) were used to strike blacks.

Recently, substantially similar showings have been held more than adequate to raise a reasonable inference of group bias and therefore establish a prima facie case under Wheeler, supra, 22 Cal.3d at 280–281, 148 Cal.Rptr. 890, 583 P.2d 748.   A prima facie case was found in People v. Hall (1983) 35 Cal.3d 161, 169, 197 Cal.Rptr. 71, 672 P.2d 854 (5 of 8 peremptory challenges used to remove all black jurors), in People v. Clay (1984) 153 Cal.App.3d 433, 456, 200 Cal.Rptr. 269 (4 of 10 peremptory challenges used to remove all blacks from the jury), Holley v. J & S Sweeping Co. (1983) 143 Cal.App.3d 588, 590, 192 Cal.Rptr. 74 (3 of 6 peremptory challenges used to excuse 3 of 4 black jurors), and People v. Fuller, supra, 136 Cal.App.3d 403, 415, 186 Cal.Rptr. 283 (3 challenges used to exclude the only 3 available black jurors.)

The trial court responded to the charge of systematic exclusion by asking the prosecutor why he had excused certain jurors:  “What about the other Black one, woman that's fresh in my mind, the other one this afternoon?   No, Miss Brown, Mr. Traback, she was excused this afternoon, and I distinctly recall her, and I was wondering why you excused her.”   Unfortunately, as the prosecutor pointed out, the court had failed to find that a prima facie case of systematic exclusion had been made.   Hence, the prosecutor was not obliged to account for the use of his challenges.   Instead, the onus was foisted back on defense counsel to object to the improper challenges.

At this point, the trial court erred.   By raising the motion in a timely manner, creating as complete a record as was feasible, establishing that a cognizable group was being excluded and showing that the exclusion of this group was systematic due to the disproportionate use of challenges against the group and the virtual elimination of the group from the panel, defense counsel clearly met all of the Wheeler requirements for a prima facie showing of group bias.   The trial court failed to make this determination and thus enabled the prosecutor to avoid his rightful burden of justification.

The People urge that the prosecutor's acceptance of the jury with at times up to two black jurors demonstrates a lack of intent to systematically exclude blacks.   This contention ignores the practical realities of jury selection and misses the point of Wheeler.   If the presence on the jury of members of the cognizable group in question is evidence of intent not to discriminate, then any attorney can avoid the appearance of systematic exclusion by simply passing the jury while a member of the cognizable group that he wants to exclude is still on the panel.   This ignores the fact that other members of the group may have been excluded for improper, racially motivated reasons.   In fact, the offending counsel who is familiar with basic selection and challenge techniques could easily accept a jury panel knowing that his or her opponent will exercise a challenge against a highly undesirable juror.   If, for instance, three people on the panel exhibit a pro-prosecution bias, then the prosecutor could pass the jury with at least three members of the group which he ultimately wishes to exclude still remaining on the jury—knowing that he will have a later opportunity to strike them.   By insisting that the presence of one or two black jurors on the panel is proof of an absence of intent to systematically exclude the several blacks that were excluded, the People exalt form over substance.

The import of Wheeler is seen in the two underlying concerns addressed.   First, is the principle that juries “․ composed of special segments of the community, or lacking an identifiable group, will damage the public's faith in the fairness of the criminal justice process.  (Wheeler, supra, 22 Cal.3d 258, 270, 148 Cal.Rptr. 890, 583 P.2d 748, citing Taylor v. Louisiana (1975) 419 U.S. 522, 528, 95 S.Ct. 692, 696, 42 L.Ed.2d 690.)   The second concern pertains to the defendant's right to have a fair and impartial trial—a right secured through the Sixth Amendment to the United States Constitution and the California Constitution, article I, section 16.  “The purpose of the jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.”  (Taylor v. Louisiana, supra, 419 U.S. 522, 528, 95 S.Ct. 692, 696, 42 L.Ed.2d 690.)   At the heart of this concern is the belief that, “․ impartiality achieved through representativeness is essential to preserving the constitutional right to jury trial․”  (Glasser v. United States (1942) 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680.)

While Wheeler stopped short of guaranteeing every defendant the right to a jury which “․ mirrors the demographic composition of the population ․”  (People v. Wheeler, supra, 22 Cal.3d at 277, 148 Cal.Rptr. 890, 583 P.2d 748), the court noted that, “[a] party is constitutionally entitled to a petit jury that is as near an approximation of the community as the process of random draw permits.”  (Ibid, emphasis added.)   The court added that, “[i]t therefore becomes the responsibility of our courts to insure that this guarantee not be reduced to a hollow form of words, but remain a vital and effective safeguard of the liberties of California citizens.”  (Ibid.)

Courts must be vigilant in securing a jury selection process which embraces the racial and ethnic diversity of our society and avails the defendant of a trial by a genuinely representative cross-section of the community.  Wheeler acknowledged the vital function of peremptory challenges as a shield against the inclusion of a juror who holds a specific bias relating to the case or the parties.  “The ideal that the peremptory serves is that the jury not only should be fair and impartial, but should seem to be so to those whose fortunes are at issue.”  (Babcock, “Voir Dire:  ‘Preserving Its Wonderful Power’ ” (1975) 27 Stan.L.Rev. 545, 552.)   Nonetheless, Wheeler decried the use of challenges when used as a sword to slash away at the constitutional rights of a defendant to a fair trial—and of all members of the community to participate significantly in the criminal justice process.  (See People v. Wheeler, supra, 22 Cal.3d 273–277, 148 Cal.Rptr. 890, 583 P.2d 748.)

A prima facie showing was made here that the prosecutor was exercising peremptory challenges not to eliminate bias but to create it.   His efforts to skew the racial composition of the jury were the basis for proper objections by defense counsel.   The trial court erred in failing to require the prosecutor to justify his use of challenges.   Here, black women would have brought to the jury room the different perspective needed to counteract the pervasive poisons of racial and sexual prejudices and stereotyping in our society.  (Cf., People v. Johnson (1978) 22 Cal.3d 296, 300, 148 Cal.Rptr. 915, 583 P.2d 774.)   The constitutional goal of diversity requires the conscious recognition of the unique perspective and experience of each of the groups that comprise our polycultural society.  (Cf., Brooks v. Beto (5th Cir.1966) 366 F.2d 1, 23.)   I would reverse and remand for further proceedings in light of Wheeler.1


1.   Our discussion of other issues raised by appellant does not merit publication.   Accordingly, parts I, II, and VI are certified for publication, and parts III, IV, and V are not.

2.   Voir dire contains no clue to the race of these jurors:  Mr. Spears;  Mr. Porritt;  Mr. Paizis;  Ms. Rios;  Mr. Guerrant;  Mr. Lustig;  Mr. Fulkerson;  Mr. Massoletti;  Mr. Orozco;  Mr. Kline;  Ms. Brooks;  Ms. Brehmer;  Ms. Hager;  Ms. Carter;  Ms. Jastram;  Ms. Moran;  Ms. Tollardo;  Mr. Finlay;  Mr. Lucas;  Ms. Macapagal;  Ms. Duran;  Mr. Foster.We do not mean to imply that a “clue” would be sufficient for Wheeler purposes.   The record should clearly reflect that the challenged jurors were black and that those remaining on the panel were not.  (People v. Ortega (1984) 156 Cal.App.3d 63, 69–70, 202 Cal.Rptr. 657.)

3.   Voir dire indicated that juror Balbuena was Hispanic.

4.   Voir dire indicated that these jurors were not black:  Ms. Harnedy;  Mr. Ellis;  Ms. Sullivan;  Ms. Horrocks;  Ms. Laniewski;  Ms. Kirkland;  Mr. Siciliano;  Mr. Anaya;  Mr. Pestana;  Mr. Hammond;  Mr. Mutialu;  Ms. Sharer.

5.   Voir dire and argument implied that these jurors were black:  Ms. Morrow;  Ms. Foster;  Mr. Owens (excused by defense);  Mr. Richardson;  Ms. Jackson;  Ms. Brown.   Defense counsel filed an affidavit that the five excused by the district attorney were black.

6.   The other members of the panel at this point and their races were:  Mr. Spears (unknown), Mr. Porritt (unknown), Ms. Sullivan (not black), Ms. Laniewski (not black), Mr. Massoletti (unknown), Ms. Kirkland (not black), Ms. Brehmer (unknown), Mr. Balbuena (not black, Hispanic), Mr. Siciliano (not black), Ms. Carter (unknown), and Ms. Jastram (unknown).

7.   The other members were:  Mr. Spears (unknown), Mr. Porritt (unknown), Ms. Laniewski (not black), Ms. Kirkland (not black), Ms. Brehmer (unknown), Mr. Balbuena (not black, Hispanic), Ms. Carter (unknown), Ms. Jastram (unknown), Mr. Anaya (not black), Mr. Pestana (not black).

8.   The other members at this point were:  Mr. Spears (unknown), Mr. Porritt (unknown), Ms. Laniewski (not black), Ms. Kirkland (not black), Ms. Brehmer (unknown), Mr. Balbuena (not black, Hispanic), Ms. Carter (unknown), Ms. Jastram (unknown), Mr. Pestana (not black), and Mr. Hammond (not black).

9.   The others were as above, except jurors Owens and Pestana had been excused and in their places were Mr. Mutialu (not black) and Mr. Foster (unknown).

10.   See footnote * ante.

1.   All of the dissent should be published as it relates to the Wheeler issue which is certified for partial publication.

BARRY–DEAL, Associate Justice.

SCOTT, J., concurs.

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