PEOPLE v. JAMISON

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. David Michael JAMISON et al., Defendants and Appellants.

No. B082926.

Decided: March 12, 1996

Richard C. Reuben, Culver City, and Michael R. Totaro, Los Angeles, under appointments by the Court of Appeal, for Defendants and Appellants. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Gustavo Gomez, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

David Michael Jamison and his brother, Willie Charles Jamison, appeal from their convictions by jury verdict of narcotics offenses.1  Both appellants challenge the trial court's ruling denying their motions for mistrial based on their claim that the prosecutor improperly challenged the only Black on the jury panel.   They contend the justifications given by the prosecutor for the exercise of the peremptory challenge are insufficient under Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, and their progeny.   Agreeing with appellants' contentions, we reverse.

DISCUSSION

Wheeler Procedure

 “It is well settled that the use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions.  (People v. Wheeler, supra, 22 Cal.3d at pp. 276–277 [148 Cal.Rptr. 890, 583 P.2d 748];  Batson v. Kentucky (1986) 476 U.S. 79, 89 [106 S.Ct. 1712, 1719, 90 L.Ed.2d 69] ).   Under Wheeler and Batson, ‘ “[i]f 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.” ’  [Citations.]  [¶] If the trial court finds that the defendant has established a prima facie case, the burden shifts to the prosecution to provide ‘a race-neutral explanation related to the particular case to be tried’ for the peremptory challenge.  [Citations.]  However, the explanation need not be sufficient to justify a challenge for cause.  [Citations.]  Jurors may be excused based on ‘hunches' and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias.  [Citation.]  [¶] There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner.   [Citation.]  We give great deference to the trial court in distinguishing bona fide reasons from sham excuses.  [Citations.]  Additionally, ‘[i]f the record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question, we affirm.’  [Citations.]”  (People v. Turner (1994) 8 Cal.4th 137, 164–165, 32 Cal.Rptr.2d 762, 878 P.2d 521, emphasis in original.)   In reviewing the trial court's ruling on a Wheeler motion, we apply the substantial evidence test.  (People v. Perez (1994) 29 Cal.App.4th 1313, 1327–1328, 35 Cal.Rptr.2d 103.)

Factual Background

Here, both appellants are Black and the juror in question was the only Black in the group of prospective jurors.   When the prosecutor exercised a peremptory challenge to excuse her, counsel for both appellants moved for a mistrial under Wheeler on the ground that the prosecutor's peremptory challenge was based on an impermissible group bias.   They noted that the prosecutor had also excused a person with a Hispanic surname and described as “dark skinned.”

The trial court conducted the voir dire of the juror in question, although all counsel were given an opportunity to state whether they had additional questions.   None of them had additional questions for her.   The juror answered the trial court's specific questions as to her occupation, marital status, residence, family, and prior jury experience.   She said that she lived in Inglewood, was single, had one teenage daughter, was a receiving clerk for Rockwell, and had no prior jury experience.   She was not asked for any other information.

After counsel for both appellants argued that they could see no reason other than race for excusing this juror, the trial court asked the prosecutor:  “You're getting ready to respond?”   She responded:  “Oh, indeed, Your Honor.”   She went on to explain:  “[E]ach time I tried to make eye contact with [the juror], she shied away.   And it gave the appearance as if she wanted to be someplace else, and gave no appearance of being involved with what was going on in this courtroom.”   The prosecutor then noted that she had not been allowed to ask particular questions of the prospective jurors to assist her in exercising her peremptory challenges.   We take this to be a reference to the trial court's earlier ruling limiting voir dire into the prospective jurors' personal reactions and feelings about the Rodney King beating.   In light of this ruling, the prosecutor stated that she had to look at the responses to questions asked by the court and by defense counsel to determine whether it appeared there was an indication the prospective juror would not be able to deliberate with the others, or had a personality which would cause others concern.   The prosecutor denied she excused the juror based on race.

Counsel for both appellants responded that the juror had not made eye contact with anyone except the judge.   They also argued that other prospective jurors also had not made eye contact, but had not been challenged.   The prosecutor responded that she had excused four other people because she believed there was something which would cause these people not to participate in jury deliberation.   Counsel for appellant David Jamison argued further that the reason given for excusing the juror was insufficient.   The prosecutor responded with an additional reason for excusing this juror and the non-Caucasian man:  their inexperience as jurors.   The trial court took the matter under submission and recessed until the following morning.

The next day, the trial court reviewed the argument of the previous day, noting the justifications offered by the prosecutor of lack of eye contact and appearance of lack of interest, and lack of prior jury experience.   The prosecutor then added an additional justification:  “The fact that those two jurors did not appear to respond with any specific information, as other jurors had, when they were questioned by the court.”   Defense counsel argued that these justifications were inadequate.

The trial court observed:  “First of all, procedurally the court should have had an opportunity to rule on whether there was a systematic exclusion or not.   My reading of the cases indicate[s] where we never get into that step, we go immediately to the justification.   And that's a tacit ruling by the court that there was some prima fa[cie] showing by the defense.   So I'm going to treat it that way, although I'm not positive I would have ruled necessarily that way if we had done it in the proper fashion.   It's extremely difficult when there's only what I consider one juror of African–American descent, because it's difficult to determine any—anything other than what occurred with that particular juror, as far as looking for a panel.”

Turning to the justifications offered by the prosecution, the trial court concluded:  “I don't accept the reason that [this juror] was—never had any prior trial—jury trial experience as a valid reason.   I think, frankly, there's still some remaining on the panel who are in that same boat.”   The trial court observed that judicial voir dire limits the ability of counsel to develop justifications for the exercise of peremptory challenges.   The court continued:  “The answers that [the juror] gave appear to me to be the normal ones, those responses, and nothing so out of line with the responses as given that would justify, in my mind, grounds for exclusion.   However, the eye contact business, what the District Attorney perceived to be a failure to volunteer information, rightfully or wrongfully, but that perception, and the District Attorney's feeling of some lack of interest on the part of the jurors are sufficient justification for the exclusion.   And I am now denying the motion.”

Prima Facie Case

 Under a Wheeler analysis, the first question is whether the defense established a prima facie case that the prosecutor excused the juror on the basis of impermissible group bias.  (People v. Turner, supra, 8 Cal.4th at p. 164, 32 Cal.Rptr.2d 762, 878 P.2d 521.)   Here, the trial court demonstrated some confusion about the first stage of a Wheeler motion.   After hearing the motions for mistrial brought by defense counsel, the court immediately asked for a response from the prosecution before making a finding as to whether a prima facie case had been shown.   We agree with Willie Jamison that this constitutes an implied finding of a prima facie case under People v. Fuentes (1991) 54 Cal.3d 707, 716, 286 Cal.Rptr. 792, 818 P.2d 75.   At that point, the burden shifted to the prosecutor to satisfy the court that the peremptory challenge was exercised on grounds of specific bias—i.e., for reasons relevant to the particular case, its parties or witnesses.   (Wheeler, supra, 22 Cal.3d at pp. 281–282, 148 Cal.Rptr. 890, 583 P.2d 748.)   Therefore, the sole issue remaining was the validity of the justifications given.   The adequacy of the prima facie case is moot.   (People v. Fuentes, supra, 54 Cal.3d at p. 717, 286 Cal.Rptr. 792, 818 P.2d 75.)

Analysis of Prosecutor's Reasons

On the second day of the Wheeler hearing, the trial court acknowledged its earlier confusion regarding the prima facie case.   At that point, however, the court turned to a detailed examination of each justification given by the prosecutor.   The court rejected the proffered reason that the juror had no prior experience as a juror on the ground that there were remaining jurors who also lacked prior experience.   In addition, the trial court observed that there was nothing in the juror's answers to voir dire which provided a valid ground for a challenge.   The court then found, however, that the other reasons given by the prosecutor were sufficient:  the lack of eye contact, the perceived failure to volunteer information, and the feeling of lack of interest.

 The trial court's duty is to make “ ‘a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily․’  [Citation.]”  (People v. Johnson (1989) 47 Cal.3d 1194, 1216, 255 Cal.Rptr. 569, 767 P.2d 1047.)   We find there was no substantial basis in the record to support the trial court's favorable evaluation of the prosecutor's explanation.

 Finding for the prosecutor, the trial court simply accepted at face value the district attorney's ipse dixit that the juror's avoidance of eye contact with her showed the juror's lack of interest and disconnection with what was going on in the courtroom.   The trial court did not indicate it validated or could validate the prosecutor's observation of the juror's body language.   Indeed, it is questionable that the court saw any of the movements of the juror shying away from eye contact with the prosecutor because the court, not the lawyers, conducted all of the voir dire up to the time the appellants made their Wheeler motion.   Moreover, because the trial court was conducting the voir dire, it is far more plausible that the juror was looking at the trial judge and not dodging the glances and gazes of the prosecutor.   Therefore, the issue boils down to what to make of the “eye contact business” and what significance should be given to it.

 Although we accord deference to the trial courts and presume that prosecutors have acted in good faith (People v. Turner, supra, 8 Cal.4th at p. 165, 32 Cal.Rptr.2d 762, 878 P.2d 521), we are not obligated to accept explanations that turn on isolated and ambiguous incidents of body language alone.   The prosecutor's explanation was based only on the juror's purported avoidance of eye contact;  the prosecutor relied on this factor to support her contention that the juror was unable to pay attention or be involved in the case.   In other words, the prosecution's explanation turns only on body language—lack of eye contact—and nothing else.   We are not compelled to find that explanation is sufficient evidence of a race neutral basis for the prosecutor's explanation in the absence of other factors which lend support for the prosecutor's interpretation of the juror's conduct.

The Supreme Court, reversing its earlier decision in People v. Trevino (1985) 39 Cal.3d 667, 217 Cal.Rptr. 652, 704 P.2d 719, held that a juror's body language may be considered in determining the prosecutor's basis for exercising a peremptory challenge.  (People v. Johnson, supra, 47 Cal.3d 1194, 1219, 255 Cal.Rptr. 569, 767 P.2d 1047.)   In Johnson, the prosecution exercised peremptory challenges to several jurors and the defendant made a Wheeler motion.   The trial court made an implied finding of a prima facie case of group bias.   With respect to one of the challenged jurors, a Black woman, the prosecution explained that she had a brother-in-law who was arrested;  “[s]he's known many guys who have gone to jail”;  she believed the courts treated Whites more leniently than other races;  she had divorced her police officer husband;  she had said it was bad luck to get on a jury;  she had been “prosecuted” for allowing her son to drive her car;  and finally, the prosecutor asserted the juror had “ ‘a very defensive body disposition, ․ she was closing her legs and folding her arms when she was talking to me,’ and ․ when counsel were introduced to her ‘she wouldn't even look in my direction.’ ”  (People v. Johnson, supra, 47 Cal.3d at pp. 1267–1271, 255 Cal.Rptr. 569, 767 P.2d 1047, emphasis added.)

In Johnson, the juror's answers revealed she had some adverse contact with law enforcement and believed the court favored Whites over minorities.   In context, her body language was not only verifiable, it rationally helped to interpret the information provided by her answers.   The situation in Johnson contrasts vividly with what occurred here, where the prosecutor relied solely on the juror's purported avoidance of eye contact, the juror's answers were unremarkable and the prosecutor did not accept the court's invitation to question the juror after the Wheeler motion was made.

In cases following Johnson, “body language” has been used by the prosecution as an interpretative tool to evaluate other factors to justify a peremptory challenge.  (People v. Turner, supra, 8 Cal.4th 137, 170, 32 Cal.Rptr.2d 762, 878 P.2d 521 [In stating his reasons for excusing a juror he had voir dired and who had indicated the father of her child had been murdered, the prosecutor noted the juror's “body language and [her] way of expressing herself” showed a great deal of hostility];  People v. Dunn (1995) 40 Cal.App.4th 1039, 1047, 47 Cal.Rptr.2d 638 [a Black juror was voir dired by the prosecution and, among other things, stated that her uncle had been convicted of murder.   The prosecution described the juror's body language at the time she was questioned as “ ‘the way [she] was sitting down, the way she was frowning’ and her apparent ‘lack of ․ interest in the proceedings' ”];  People v. Harper (1991) 228 Cal.App.3d 843, 848–849, fn. 1, 279 Cal.Rptr. 204 [during voir dire by the prosecutor, a Black juror acknowledged that she was familiar with the Waterloo Club which was described as “central” to the defendant's alibi and did not indicate she had seen drug users or drug sales even though she worked in areas where drug dealing is “obvious.”   The prosecutor then explained “ ‘combined with those two, ․ just watching her facial expressions and how she reacted during the whole time, she was incredibly I guess the word I would use is very, very placid.   She didn't show really any emotions throughout the whole thing’ ”];  People v. Gonzalez (1989) 211 Cal.App.3d 1186, 1199, 259 Cal.Rptr. 870 [after completing the voir dire of a Hispanic juror, the prosecution explained its peremptory challenge was based on the juror's status as a first generation American and his perceived inability to understand the law, coupled with the fact that the juror “had his arms folded across his chest,” and looked like he had already made up his mind].) 2  In this case the trial court only considered the alleged body language.   The body language described here was not subject to validation and was not and could not be used to interpret any other factor bearing on a specific bias.   Indeed, as the trial court found, the juror's answers revealed no prejudice one way or another.   In the absence of body language that is more expressive and commonly recognized as a sign of hostility, other factors must be present to constitute a race neutral explanation.   Any other application of “body language” as the sole basis to justify a peremptory challenge would give prosecutors carte blanche to defeat a Wheeler motion.

 The California Supreme Court recognizes that we are not compelled to accept every determination of the trial court or embrace every explanation provided by the prosecution.  “To the extent that a trial court's ruling on the proffered explanation of a prosecutor turns on the latter's credibility, we agree with the United States Supreme Court that ‘a reviewing court ordinarily should give those findings great deference.’  (Batson v. Kentucky [ (1986) ] 476 U.S. [79] at p. [98], fn. 21 [106 S.Ct. 1712, 1724, fn. 21, 90 L.Ed.2d 69] )  Our decisions demonstrate, however, ‘ordinarily’ does not mean ‘inevitably’:  in some cases the reviewing court may conclude that the explanation is inherently implausible in light of the whole record.   And even when there is no doubt of the prosecutor's good faith, the issue whether a given explanation constitutes a constitutionally permissible—i.e., nondiscriminatory—justification for the particular peremptory challenge remains a question of law.”  (People v. Turner (1986) 42 Cal.3d 711, 720, fn. 6, 230 Cal.Rptr. 656, 726 P.2d 102.)   In this case the juror's purported avoidance of eye contact with the prosecutor is the sole factor for the prosecution's explanation.   Without more, it fails to support the trial court's reliance on the explanation offered by the prosecution.

We therefore disagree with the dissent's reliance on the per curiam decision of the United States Supreme Court in Purkett v. Elem (1995) 515 U.S. ––––, 115 S.Ct. 1769, 131 L.Ed.2d 834, and its belief that the decision is consistent with People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, and its progeny.   To us, Purkett is a digression from prior federal law prohibiting the prosecutor's use of peremptory challenges to remove prospective jurors on the basis of impermissible group bias.  (Batson v. Kentucky, supra, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.)  Purkett now allows a prosecutor's explanation to a prima facie showing of racial discrimination to be sufficient even if it is “implausible or fantastic” or “silly or superstitious” so long as the trial court finds it credible.   It is hard to imagine that a California appellate court would be compelled to find an “implausible or fantastic” or “silly or superstitious” reason for exercising a peremptory challenge to be sufficient or substantial evidence to rebut a prima facie showing of racial discrimination.

 If California courts were compelled to adopt Purkett's holding, a Wheeler motion would become nothing more than an empty gesture.   However, federal law is not controlling.  People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, holds that the right to trial by an impartial jury is guaranteed by the California Constitution.   Specifically, the Supreme Court made it unmistakably clear that its holding is controlled by California jurisprudence:  “We have reviewed this line of United States Supreme Court opinions in some detail because we fully agree with the views there expressed as to the importance of the representative cross-section rule, particularly in protecting the constitutional right to an impartial jury.   We rely equally, however, on the law of California.   It was not until ․ Taylor [v. Louisiana (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690] that the high federal court imposed the representative cross-section rule on the states as a fundamental component of the Sixth Amendment right to an impartial jury incorporated in the Fourteenth Amendment.   In California we had long since adopted that rule.”  (22 Cal.3d at p. 270, 148 Cal.Rptr. 890, 583 P.2d 748, fns. omitted.)   The Wheeler opinion continues:  “Because a fundamental safeguard of the California Declaration of Rights is at issue, however, ‘our first referent is California law’ and divergent decisions of the United States Supreme Court ‘are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law.’   [Citations.]”  (Id. at p. 285, 148 Cal.Rptr. 890, 583 P.2d 748.)

To paraphrase the dissent in Purkett v. Elem, supra, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834, it is unnecessary to tolerate silly, fantastic, and implausible explanations but it is appropriate to require that the prosecutor's explanation be race neutral, reasonably specific, and trial related.   The assumption that there is a difference of constitutional magnitude between a statement that “I had a hunch about this juror based on her appearance” and “I challenged the only Black juror on the panel because she avoided eye contact with me” demeans the importance of the values vindicated by the California Supreme Court in Wheeler.   Because California law is controlling, we are not required to go down the path created by the Purkett majority.

DISPOSITION

The judgments are reversed.

In this case, the majority extend the rule of the California Supreme Court in People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 and of the United States Supreme Court in Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, and reach a result that, in my opinion, is at odds with authoritative precedents of both courts.   For that reason, I respectfully dissent.

There is no dispute about the basic rule:  “ ‘use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial [or other cognizable] group violates both the state and federal Constitutions.’ ”  (People v. Davenport (1995) 11 Cal.4th 1171, 1199, 47 Cal.Rptr.2d 800, 906 P.2d 1068, quoting People v. Turner (1994) 8 Cal.4th 137, 164, 32 Cal.Rptr.2d 762, 878 P.2d 521.)   The issue in this case is whether the record establishes as a matter of law that this happened.

It is important to recognize at the outset that the question is not whether the prosecutor's explanation for her challenge was factually correct.   The question is whether it was pretextual, masking a prohibited motive.   Of course an explanation that the trial court perceives to be factually incorrect is likely to be construed as pretextual, and for good reason.   But that is not the same as saying that the underlying challenge is illegal as a matter of law.  (See Purkett v. Elem (1995) 515 U.S. 765, ––––, ––––, 115 S.Ct. 1769, 1770–71, 131 L.Ed.2d 834, 839.)

In this case, the prosecutor made a peremptory challenge seeking to excuse the only remaining African–American on the panel from which the jury was being selected.   Both defendants were African–Americans.   Defendants' counsel promptly moved for mistrial under Wheeler, arguing that they could see no reason other than race for the challenge.   The court then asked the prosecutor for an explanation.   In doing so, without a statement negativing a finding that a prima facie showing of a race based challenge had been made, the court impliedly found that showing had been made.  (People v. Fuentes (1991) 54 Cal.3d 707, 713, 286 Cal.Rptr. 792, 818 P.2d 75.)   Later, the trial judge recognized that he had not followed the proper procedure and was “not positive I would have ruled necessarily that way if we had done it in the proper fashion.”  (See People v. Crittenden (1994) 9 Cal.4th 83, 119, 120, fn. 3, 36 Cal.Rptr.2d 474, 885 P.2d 887 [prima facie case not made, under federal or state precedent, by showing prosecutor has challenged all members of defendant's race].)   But having gone that far, the trial judge quite properly treated the case as one in which a prima facie case had been made.

The prosecutor explained her reasons for the challenge.   As the majority acknowledge, she had more than one.   The first was that the juror looked away each time the prosecutor tried to make eye contact.   The next was that the juror gave the appearance of wanting to be somewhere else, and did not appear to be involved in what was going on in the courtroom.   A third was the prospective juror's lack of experience as a juror.   The prosecutor specifically denied a racial basis for the challenge.   The trial judge did not rule immediately.   Presumably, he had the evening to reflect on the arguments of counsel.   The next day, before he ruled, the prosecutor presented a further reason:  that other prospective jurors had been more forthcoming in their responses to questions on voir dire.

The majority treat the prosecutor's first explanation, that the prospective juror had avoided eye contact, as though it was confined to voir dire.  (Voir dire was conducted by the court rather than by counsel.  (See Code Civ.Proc., § 223.))   But that embellishes what she said.   Her statement was that “each time ” the prosecutor tried to make eye contact with the prospective juror “she shied away.”   We cannot assume there were no occasions before the challenge was exercised in which it would have been natural for the prospective juror to look in the prosecutor's direction and make eye contact.   The point at which counsel are presented and introduced to the jury is one example.   It is natural that there were others, and that the prospective juror's attention was not fixed elsewhere at all times before the challenge was exercised.1

When the trial judge addressed the issue the following day, he rejected the lack of experience explanation.   The judge's treatment of the balance of the prosecutor's statements is particularly significant, and it was here that the ruling was made:  “However, the eye contact business, what the District Attorney perceived to be a failure to volunteer information, rightfully or wrongfully, but that perception, and the District Attorney's feeling of some lack of interest on the part of the jurors are sufficient justification for the exclusion.”  (Emphasis added.)

In other words, the trial court did not necessarily agree that the prospective juror had deliberately avoided eye contact with the prosecutor, or that she was not interested in the trial, but he was satisfied that the prosecutor did not act out of racial bias.

That approach is entirely consistent with the instruction of the high court in Purkett and with decisions of the California court.   In Purkett, a case in which a prosecutor's explanation that peremptory challenges resulted from inferences drawn from facial hair of the persons challenged, the court discussed the three-step process to be followed under Batson.   First, the trial judge decides whether a prima facie showing of racial discrimination has been made.   If it has, the court proceeds to the second step, at which the proponent of the challenge is called upon to give a race-neutral explanation.   If that is done, the third step is reached, at which the trial judge decides not whether the reason given is valid, but whether it is a pretext to disguise a constitutionally prohibited reason.  “The second step of this process does not demand an explanation that is persuasive, or even plausible.  ‘At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation.   Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.’ ”   (Purkett v. Elem, supra, 515 U.S. at p. ––––, 115 S.Ct. at 1771, 131 L.Ed.2d at p. 839.)   It is not until the third step is reached that the persuasiveness of the justification is relevant.  “At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.   But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious.   The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.”  (Ibid.;  emphasis in the original.)   The issue of good faith is not reached until the final step.   At that juncture, as Purkett suggests, the court is likely to find “silly” and “superstitious” explanations to be pretextual, and to sustain a Batson/ Wheeler objection.

The majority quote a statement from People v. Turner (1986) 42 Cal.3d 711, 230 Cal.Rptr. 656, 726 P.2d 102, to justify its position, as I take it, that somehow we are free to second-guess the trial court's decision about the prosecutor's good faith.   The Supreme Court said that “even when there is no doubt of the prosecutor's good faith, the issue whether a given explanation constitutes a constitutionally permissible—i.e., nondiscriminatory—justification for the particular peremptory challenge remains a question of law.”  (Id. at p. 720, fn. 6, 230 Cal.Rptr. 656, 726 P.2d 102.)   This is entirely consistent with the approach of the United States Supreme Court in Purkett.   If the prosecutor's reason is race neutral, the trial judge decides whether it was made in bad faith to disguise a constitutionally prohibited reason.   But even if the explanation is given in good faith, whether or not it is race neutral—i.e., constitutionally valid—is a question of law.   Thus, in People v. Gonzalez (1989) 211 Cal.App.3d 1186, 1200, 1201, 259 Cal.Rptr. 870, a prosecutor's explanation was that he excused an Hispanic prospective juror because the person was a first-generation American and, as such, was likely to have trouble understanding the law once he was in the jury room.   That was held to be a constitutionally prohibited reason because it was nothing but an admission of bias against naturalized citizens.  (Id. at p. 1202, 259 Cal.Rptr. 870.)

The majority err when they say there is no substantial basis in the record to support the trial court's “favorable evaluation of the prosecutor's explanation.”  (Maj. opn. p. 684.)   The trial court did not find that the prosecutor was correct in her perceptions, but only that they were honest perceptions.   And the remark that the trial court “did not indicate it validated or could validate the prosecutor's observation of the juror's body language” (maj. opn. p. 684) is not only incorrect (because the test is not whether the observation was “valid” but whether it was pretextual), it also implies that trial judges need to make findings of fact in rejecting a Wheeler challenge.   That is not the law—or, at least, it has not been.

None of this is new.   Over a decade ago, the Supreme Court, in People v. Trevino (1985) 39 Cal.3d 667, 692, 217 Cal.Rptr. 652, 704 P.2d 719, rejected “hunches” and “body language” as bases for peremptory challenges.   Justice Kaus, responding in dissent, noted:  “I have my own hunch that what is really behind the majority's rejection of hunches, gut-feelings and body language is a fear that prosecutors will insincerely attempt to justify group bias with such reasons and that trial judges, some of whom are perceived as being unsympathetic toward the Wheeler rule, will rubber-stamp their explanations.   I submit that if we cannot trust trial courts to do their job fairly, we might as well close up shop and that we, ourselves, were insincere when, in Wheeler, we professed our faith in the ‘good judgment’ of the trial bench.”  (Dis. opn. of Kaus, J. at 39 Cal.3d p. 704, fn. 4, 217 Cal.Rptr. 652, 704 P.2d 719.)   Four years later, Justice Kaus' statement was quoted with approval in People v. Johnson (1989) 47 Cal.3d 1194, 1219, 255 Cal.Rptr. 569, 767 P.2d 1047, which overturned Trevino on this issue.

In the end, we are dealing with the credibility of the attorney who makes the challenge.   The trial judge was there, and was able to look that attorney in the eye, and to decide whether she had lied to the court in denying a racial basis for her challenge.   He decided that she had not.   On this record, we have no warrant to distrust the judge's ability and sincerity in doing his job fairly.   We cannot properly say that he abused his authority in ruling as he did.

I would affirm.

FOOTNOTES

1.   We need not, and do not, recite the evidence offered to convict as it is irrelevant to the dispositive legal issues raised by appellants.

2.   There are other reported decisions which refer to “body language” but do not describe the circumstance of the jury selection so as to disclose how that factor was applied.

1.   I note that the transition between the prosecutor's eye contact remark and her statement about the prospective juror seeming to want to be somewhere else, used the pronoun, “it” (“And it gave the appearance ․”).  The majority apparently take that to mean that the prosecutor was basing her conclusion about the prospective juror's not wanting to be involved solely on the lack of eye contact.   That, I suppose, is a permissible reading of the prosecutor's literal statement.   But the prosecutor obviously was not trying to speak with statutory precision, and her explanation was not treated by the court as being so restrictive.

CHARLES S. VOGEL, Presiding Justice.

KLEIN (Brett), J.*, concurs.