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Court of Appeal, First District, Division 5, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Herman Anselmo SANCHEZ, Defendant and Appellant. IN RE: Herman Anselmo SANCHEZ on Habeas Corpus.

Nos. A053863, A056096.

Decided: May 18, 1992

Donald Specter and Arnold Erickson, Prison Law Office, San Quentin, for defendant and appellant. Daniel E. Lungren, State Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Mark S. Howell, Supervising Deputy Atty. Gen. and Sharon Rosen Leib, Deputy Atty. Gen., Office of the State Atty. Gen., San Francisco, for plaintiff and respondent.

Herman Anselmo Sanchez appeals his conviction by jury trial of battery by a prisoner on a correctional officer.  (Pen.Code, § 4501.5.) 1  His principal claim of error is that the prosecutor peremptorily challenged a Hispanic juror solely for racial or ethnic bias, in violation of Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 and People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.   In a consolidated petition for habeas corpus, he claims ineffective assistance of counsel.   We reverse for Wheeler error.


Appellant, an inmate at Pelican Bay State Prison, was convicted of battery on a correctional officer.   He contends the court erred in denying his motion challenging the People's peremptory excuse of the only available Hispanic juror.

 The People's use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right of the accused under the Sixth and Fourteenth Amendments of the federal Constitution and article I, section 16 of the California Constitution to trial by an impartial jury drawn from a representative cross section of the community.  (Batson v. Kentucky, supra, 476 U.S. at p. 89, 106 S.Ct. at p. 1719;  People v. Wheeler, supra, 22 Cal.3d at pp. 276–277, 148 Cal.Rptr. 890, 583 P.2d 748.)   Such use of peremptory challenges also violates the equal protection and due process rights of the excluded jurors.  (Edmonson v. Leesville Concrete Co. (1991) 500 U.S. 614, –––– [111 S.Ct. 2077, 2081–2082, 114 L.Ed.2d 660, 671–672];  Powers v. Ohio (1991) 499 U.S. 400, –––– [111 S.Ct. 1364, 1372–1373, 113 L.Ed.2d 411, 427];  Batson v. Kentucky, supra, at p. 87, 106 S.Ct. at p. 1718.)

A litigant asserting an unconstitutional exclusion of cognizable group members from the jury bears the initial burden of making a timely objection and prima facie showing that the jurors are being excluded on the basis of group bias.   (Batson v. Kentucky, supra, 476 U.S. at p. 96, 106 S.Ct. at p. 1723;  People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)   Once the litigant has established a prima facie case, the burden shifts to the People to justify their peremptory challenges on race-neutral grounds.  (People v. Fuentes (1991) 54 Cal.3d 707, 716–717, fn. 5, 286 Cal.Rptr. 792, 818 P.2d 75;  People v. Turner (1986) 42 Cal.3d 711, 719, fn. 3, 230 Cal.Rptr. 656, 726 P.2d 102.)

 To make a prima facie case, the defendant should (1) make as complete a record as possible, (2) establish that the person(s) excluded are members of a cognizable group, and (3) from all the circumstances of the case show a strong likelihood that such persons are being challenged because of their membership in the group and not for any other specific bias.  Batson, Wheeler and their progeny have not established a rigid method by which a party is compelled to make a prima facie case.   Rather, when making its decision whether the party has made the requisite showing, the trial court should consider all relevant circumstances.  (Batson v. Kentucky, supra, 476 U.S. at pp. 96–97, 106 S.Ct. at pp. 1723;  People v. Wheeler, supra, 22 Cal.3d at pp. 280–281, 148 Cal.Rptr. 890, 583 P.2d 748;  People v. Howard (1992) 1 Cal.4th 1132, 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

Both Batson and Wheeler give examples of evidence that could establish a prima facie case, but carefully note that their examples are not all-inclusive.  “For example,” says Batson, “a ‘pattern’ of strikes against [members of the recognized class] included in the particular venire might give rise to an inference of discrimination.   Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.   These examples are merely illustrative.”  (Batson v. Kentucky, supra, 476 U.S. at p. 97, 106 S.Ct. at p. 1723.)  Wheeler, “[f]or illustration,” refers to certain types of relevant evidence:  (1) The character and substance of the prosecutor's voir dire;  (2) whether the prosecutor used a disproportionate number of peremptory challenges against members of the identified group;  (3) the race or ethnicity of the defendant vis-a-vis the members of the excluded group, the victim and the remaining jurors;  and (4) the fact that the excluded jurors have in common only their membership in the recognized group and otherwise are as heterogeneous as the community as a whole.  (People v. Wheeler, supra, 22 Cal.3d at pp. 280–281, 148 Cal.Rptr. 890, 583 P.2d 748.)

 Although the Batson/Wheeler examples refer to jurors in the plural, the peremptory excuse of only one member of the class may support a Wheeler motion, because even a single discriminatory exclusion violates the defendant's right to a representative jury.  (People v. Fuentes, supra, 54 Cal.3d at p. 716, fn. 4, 286 Cal.Rptr. 792, 818 P.2d 75.)   As People v. Moss (1986) 188 Cal.App.3d 268, 277, 233 Cal.Rptr. 153, observed:  “There is no arbitrary numerical cutoff so that if only one or two [jurors of a cognizable class] are on the venire or survive challenges for cause, ‘the prosecutor need have no compunction about striking them from the jury because of their race.’   [Citation.]  We emphatically reject any automatic rule which would leave prosecutors ‘free to discriminate against [members of a cognizable class] in jury selection provided that they hold that discrimination to an “acceptable level [of one or two].” ’ ”   The fact that not only the rights of the defendant, but also those of the challenged juror are violated by an unconstitutional challenge (Edmonson v. Leesville Concrete Co., supra, 500 U.S. at p. –––– [111 S.Ct. at pp. 2081–2082, 114 L.Ed.2d at p. 672];  Powers v. Ohio, supra, 499 U.S. at p. –––– [111 S.Ct. at pp. 1372–1373, 113 L.Ed.2d at p. 427];  Batson v. Kentucky, supra, 476 U.S. at p. 87, 106 S.Ct. at p. 1718) further emphasizes that the number of challenges is not determinative of a prima facie case.

Voir dire in the instant case was conducted by the court alone, which posed to each potential juror an identical pattern of questions derived from section 8.5 of the Standards of Judicial Administration adopted by the Judicial Council, “Examination of Prospective Jurors in Criminal Cases”:  Occupation, marital status, spouse's occupation, prior jury experience, acquaintance with persons involved or familiar with any facts of the case, involvement with incidents similar to the instant charge, acquaintance with law enforcement personnel, ability to judge the testimony of law enforcement officers, understanding of the requisite burden of proof, and any feelings about the case making it difficult to be fair and impartial.

 Appellant is Hispanic.   For purposes of a Wheeler motion, Hispanics are a cognizable group.  (People v. Trevino (1985) 39 Cal.3d 667, 683, 217 Cal.Rptr. 652, 704 P.2d 719.)   Thirty-three potential jurors were examined on voir dire, three of whom—Carlos Hernandez, Nadine Alvarado and Colette Freitas—the People acknowledged as Hispanic.   Hernandez and Alvarado were excused for cause.   Freitas stated she was a teacher, unmarried, had no prior jury experience or knowledge of the facts or the people involved with the case, no acquaintance with anyone who had been involved in a similar incident or was in law enforcement, was able to judge the testimony of a law enforcement officer as she would any other witness, understood the People's burden of proof, and had no feelings about the case that would affect her impartiality.   The People used their first peremptory challenge to excuse her.   They also peremptorily excused three non-Hispanic jurors.

At the conclusion of jury selection, but before the jury was empaneled, appellant objected to the People's peremptory challenge of Ms. Freitas, “the only person on the jury panel with a [H]ispanic last name,” as a conscious attempt by the People to exclude Hispanics.   He also challenged the entire venire as not representing a cross section of the community because it included very few Hispanic names.

Without urging or a request from the court, the prosecutor responded that the venire contained other persons with Hispanic surnames and was representative of the county, which does not have a large Hispanic population.   He did not address the specific objection to his peremptory challenge of Freitas.2

Following the prosecutor's response, the court stated:  “I don't perceive that there is ․ any sign of a pattern of discrimination in the district attorney's exercise of [peremptory] challenges.   It just does not appear that there's anything that rises to that level.  [¶] ․  [I]t does not appear to the Court that there is sufficient basis shown to conduct any further inquire [sic ] under the Wheeler Decision.”   The court also denied appellant's motion to strike the venire.   Appellant is not appealing that ruling.

 Although the court did not expressly state that appellant failed to make a prima facie case, its ruling clearly implies as much.   However, insofar as the jury panel contained only one Hispanic juror subject to a peremptory challenge (the other two having been excused for cause), there was no basis for its finding of an absence of a pattern of discrimination in the prosecutor's exercise of peremptory challenges.  “Pattern,” as Batson used the term, (“ ‘pattern’ of strikes against [B]lack jurors included in the particular venire” [id. 476 U.S. at p. 97, 106 S.Ct. at p. 1723] ) refers to a venire containing multiple members of a cognizable group, at least several of whom have been peremptorily excused, i.e., a repetitive action.  “Pattern” is a term inapplicable to a panel containing only one person from a cognizable class, and cannot be the basis, under such circumstances, for determining whether the defendant has made a prima facie case.   Absent the possibility of a “pattern,” the prima facie case must be based on other evidence.

Ordinarily, a Wheeler motion requires something more than the bare assertion that opposing counsel has excused a member or members of a cognizable protected group.  (People v. Howard, supra, 1 Cal.4th at pp. 1154–1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   However, when reviewing the denial of a Wheeler motion where the trial court has not found a prima facie case of group bias, we are required to consider the entire jury selection record.   (Id., at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   In the instant case, we have the ideal yardstick with which to measure the jury selection process, since the entire voir dire was conducted by the court rather than the attorneys, and the same inquiries were made of each of the potential jurors.   We cannot find any reason for the prosecutor's challenge of Freitas other than that she is Hispanic, and the People do not suggest any other reason on appeal.

 We conclude that, on this record, appellant established a prima facie case.   As he pointed out, he and Freitas are both Hispanic, which is relevant to support an inference of discriminatory purpose.  (See People v. Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.)   Although defense counsel did not mention Freitas' responses to the standard voir dire inquiries, the record demonstrates that her responses were in no way distinctive from those of the jurors selected, which included an unmarried woman, a teacher, and persons without prior jury experience, all traits in common with Freitas.   Nor is there a perceptible characteristic common to the prosecutor's four peremptory challenges, other than the fact they were all women, which appellant does not challenge.   The only demonstrable difference between Freitas and the jurors selected, or the community as a whole, was the ethnicity she shared with appellant.   The race or ethnicity of the victims does not appear in the record, but insofar as it is not mentioned and their surnames are not obviously Hispanic, we may presume the victims are not of the same ethnic origin as appellant.   We also note that the prosecutor exercised his first peremptory challenge on Freitas.   All these circumstances are relevant to raise an inference of discriminatory purpose to the challenge of Freitas.  (Batson v. Kentucky, supra, 476 U.S. at p. 96, 106 S.Ct. at p. 1723.)

The People do not deny or contest the foregoing factors, but rely upon People v. Wright (1990) 52 Cal.3d 367, 399–400, 276 Cal.Rptr. 731, 802 P.2d 221, People v. Christopher (1991) 1 Cal.App.4th 666, 672–673, 2 Cal.Rptr.2d 69, and People v. Rousseau (1982) 129 Cal.App.3d 526, 536, 179 Cal.Rptr. 892, for the proposition that appellant has not made a prima facie case if his only assertion is that all members of a cognizable group have been challenged.   Given the record in this case, which provides a firm basis to evaluate appellant's Wheeler motion, we find these cases distinguishable.

In Wright, a capital case, the defendant challenged the People's peremptory excuse of a prospective Black juror on the basis of systematic exclusion.   The trial court ruled there could not be systematic exclusion insofar as she was “the first [B]lack that is seated on the jury.”  (People v. Wright, supra, 52 Cal.3d at p. 399, 276 Cal.Rptr. 731, 802 P.2d 221.)   The People immediately volunteered that the prospective juror had previously stated that she could vote for the death penalty only if “absolutely forced to,” and he would not leave a person on the jury with such an attitude.   Even though the Wright court concluded that the defendant had not established a prima facie case “solely by his observation that one prospective juror peremptorily challenged by the prosecutor was Black” (ibid.), it reached its conclusion only after determining from an independent examination of the record that there was no evidence to support defendant's claim that the prosecutor's challenge was racially motivated.   Furthermore, the Wright record demonstrated a non-racial explanation for the prosecutor's challenge.

In Christopher, the prosecutor peremptorily excused the sole Black potential juror.   Defense counsel objected, noting that the juror's voir dire responses manifested no basis other than race for the challenge.   The trial court denied the motion on the ground that it understood Wheeler to apply “to a pattern of kicking Black people [off the jury].   She is the only Black juror excused.”  (People v. Christopher, supra, 1 Cal.App.4th at p. 669, 2 Cal.Rptr.2d 69.)  Christopher held that “the prosecutor's challenge of one or two prospective jurors of the same racial or ethnic background as the defendant will not establish a prima facie case of impermissible group-based bias in the absence of other significant supporting evidence” (id., at p. 673, 2 Cal.Rptr.2d 69), disagreeing with the federal circuits which have held that the exclusion of a single prospective juror of the same race or ethnic background as the defendant automatically constitutes a prima facie case where that juror is the only group member on the panel.3  Christopher concluded the federal circuits were inconsistent with Batson, but it also observed that the trial record demonstrated that the prosecutor's questioning of the prospective juror was neither perfunctory nor unusually limited compared with his questioning of the other jurors, and that while the juror and defendant were of the same race, there was no victim of a different racial or ethnic group to which the other jurors belonged.  (The charge was possession of cocaine.)   It thus made a specific ruling based on a record to which we are not privy, but which we presume was reviewed by the Christopher court.   (See People v. Howard, supra, 1 Cal.4th at pp. 1153–1157, 5 Cal.Rptr.2d 268, 824 P.2d 1315, and cases cited therein.)

Without indicating the contents of the trial record, Rousseau held that the defendant's attempt to satisfy the required prima facie showing solely on the basis of a statement that “ ‘there were only two [B]lacks on the whole panel, and they were both challenged by the district attorney’ ” (People v. Rousseau, supra, 129 Cal.App.3d at p. 536, 179 Cal.Rptr. 892) was insufficient.   Again, because we do not have the benefit of the Rousseau record, as did the appellate court, we cannot determine all the factors that could have been considered in the trial court's ruling.  (See People v. Moss, supra, 188 Cal.App.3d at p. 277, fn. 8, 233 Cal.Rptr. 153.)

In contrast to Wright, Rousseau, Christopher and Howard, the totality of circumstances in this record demonstrates a prima facie showing of a discriminatory peremptory challenge.   Appellant and Freitas are both Hispanic (People v. Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748), Freitas was the only available Hispanic juror (id., at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748), nothing other than her ethnicity distinguishes Freitas from the jurors selected or from the community as a whole (People v. Turner, supra, 42 Cal.3d at p. 719, 230 Cal.Rptr. 656, 726 P.2d 102), and the prosecutor used his first peremptory challenge to strike the only Hispanic prospective juror.  (Ibid.)  Appellant established a prima facie case, to which the prosecution should have been ordered to respond.

In light of our conclusion, we need not address the other claims of error raised on appeal, and appellant's petition for habeas corpus becomes moot.

The judgment is reversed, and the petition for habeas corpus is denied.


1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   The prosecutor stated:  “First, I'd have the court note that it excused Mrs. Alvarado because her husband works at Pelican Bay;  and secondly, I would have the court note that Mr. Hernandez, obviously a [H]ispanic last name, was eliminated from the panel by the defense counsel.  [The prosecutor was incorrect;  the court excused Mr. Hernandez.]   Third, I would have the court note that this county is at least a thousand miles from Mexico;  and that the only resident [H]ispanic community, for the most part, is in Smith River.   And that if they do not register to vote because they are not citizens, they cannot become part of the jury panel;  and I think that the panel is representative of the community as reflected by the voter's registration cards.  [¶] It's not the prosecution's fault that there is a prison in this community and that many of the prospective jurors are either paid or associated with or have children working for the prison.   That's simply a circumstance of life that one must live with.”

3.   Two federal circuits have ruled that a prima facie case is established under Batson by the peremptory challenge of the sole prospective juror of the same race or ethnicity as the defendant.  (U.S. v. Iron Moccasin (8th Cir.1989) 878 F.2d 226, 228–229;  U.S. v. Roan Eagle (8th Cir.1989) 867 F.2d 436, 440–442;  United States v. Chalan (10th Cir.1987) 812 F.2d 1302, 1314.)   Since we have concluded that appellant established a prima facie case under California standards, we need not address any conflict among Batson standards, the federal circuit rules and California standards.

HANING, Acting Presiding Justice.

KING, J., and ROUSE, J.,* Assigned, concur.

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