PEOPLE v. BENSON

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

The PEOPLE, Plaintiff/Respondent, v. James Darryl BENSON, Defendant/Appellant.

No. A039642.

Decided: July 24, 1990

Eric S. Multhaup †, San Francisco, for defendant/appellant James Darryl Benson. John K. Van de Kamp, California Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Aileen Bunney, and Laurence K. Sullivan, Supervising Deputy Attys. Gen., San Francisco, for plaintiff/respondent the People.

Appellant was convicted of the murder of a fellow jail inmate, and raises numerous contentions of error in this appeal.   We summarize our rulings as follows:

 (1)–(5) **

(6) There was no error by the trial court in denying appellant's second motion, pursuant to People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, wherein appellant claimed the prosecutor improperly exercised peremptory challenges to exclude blacks from the jury for reasons of group bias.   The trial court made no implied finding of a prima facie showing of juror exclusion for reasons of group bias.   The record does not support a contention of unjustified systematic exclusion of a cognizable group of jurors where, inter alia, the prosecutor's jury selection procedures resulted in a statistical over-representation of blacks on the jury, and proper neutral reasons existed for excluding three potential black jurors whose peremptory challenges appellant questions.

We, therefore, affirm the conviction.

I. STATEMENT OF THE CASE

On July 16, 1985, appellant was charged by information with the murder of Alfred Ingram and other offenses.1  The information also alleged that appellant had personally used a knife and had suffered certain prior convictions.   Codefendant Randy Alana was jointly charged.

Following pretrial motions in October 1986, jury selection began.   A mistrial was declared in December based on appellant's successful Wheeler motion.   Jury selection began again;  and trial commenced on March 11, 1987.   The parties rested on May 4;  after arguments of counsel, the jury was instructed on May 18 and returned a guilty verdict on May 20.

On July 29, 1987, appellant was sentenced to a prison term of thirty-seven years to life, consisting of twenty-five years to life for the murder charge;  five years for the first prior;  five years for the second, third, and fourth priors combined;  one year for the fifth prior;  and one year for the personal use of a knife.

This timely appeal followed.

II. STATEMENT OF THE FACTS***

III. DISCUSSION (A–E)***

F. Wheeler Motion

Appellant's final contention, based on People v. Wheeler, supra, is unusual.   The jury selection procedures at trial, as we hereinafter discuss in greater detail, resulted in the percentage of blacks serving on appellant's jury exceeding that of their representation on the venire panel as a whole.   Appellant nonetheless urges Wheeler error, contending that certain blacks were impermissibly excluded from the trial jury.   We will reject this contention because no prima facie showing of impermissible exclusion of blacks was made, no implied finding of such prima facie showing was made by or resulted from the trial court's offer to the prosecutor to “respond” to appellant's Wheeler motion, and the record supports the prosecutor's exercise of peremptory challenges on valid neutral grounds totally independent of group bias.12

The trial court, clearly cognizant of the requirements of Wheeler and when jury selection was first in progress, granted a Wheeler motion made by appellant.   A second panel was then drawn;  empaneling of this jury, whose composition and method of selection is the subject of appellant's appeal, was undertaken before the same trial court.   Jury selection spanned more than one month.

The relevant facts are these:  On the venire panel of 58 there were 8 blacks, about 14 percent of the panel.   At least two persons who identified themselves as blacks, Roosevelt S. and Alphas S., were not challenged and served on the jury;  blacks, thus, constituted about 17 percent of the jury.   Another juror, Laura D., identified her race as “Brown.”   Two other jurors, Ana S. and Laudelina M., were also Spanish surnamed or of Hispanic origin.   The trial jury was composed of two persons who, like the appellant, were black males;  two white males;  five white females;  and three jurors best described as persons of color, in an inclusive sense of that term.13  The foreperson of the jury was Alphas S.

The vast majority (75 percent) of the persons challenged by the prosecutor were not black.   One black potential juror, Carol T., was excused for cause after she informed the court she had been told by her boyfriend that her life would be in danger if she voted to find the defendants guilty.   Excusing her due to an inability to fairly consider the evidence out of concern for her own safety was obviously proper.   Appellant does not contend otherwise.   A white juror, Mark D., was excused for cause by the court for the same reason.

Two prospective black jurors, Adante H. and Alfren M., were challenged by the prosecutor.   Adante H. had been briefly incarcerated for a crime he portrayed as a case of mistaken identity, and he had been discharged from the Army under dishonorable circumstances for a variety of instances of misconduct.   Alfren M. had expressed the opinion that community groups seeking to deal with the problem of drug-related crime in East Oakland should “mind their own business.”   Appellant does not dispute that reasons unrelated to group bias existed for these peremptory challenges.

 Appellant makes his assignment of Wheeler error on the prosecutor's challenge of potential black jurors Sandra M., Dave H., and Carolyn C.;   he has, however, retreated as to Sandra M., and acknowledged that a challenge due to a prior theft conviction which she initially sought to conceal “perhaps met accepted standards.”   Indeed it did.  (See People v. Wheeler, supra, 22 Cal.3d at p. 277, fn. 18, 148 Cal.Rptr. 890, 583 P.2d 748 [observing that previous incarceration meets the test of specific bias of a potential juror:  “A personal experience of this nature, suffered either by the juror or a close relative, has often been deemed to give rise to a significant potential for bias against the prosecution.”].)   We are left to consider appellant's contention the prosecutor's peremptory challenges of Dave H. and Carolyn C. constituted Wheeler error.

Appellant's Wheeler motion was made when prospective juror Dave H. was challenged, and the following colloquy between the trial court and counsel occurred over one month after the prosecutor had peremptorily challenged Carolyn C.:  “[THE COURT:]  With regard to the Wheeler motion, when the prospective Juror [Dave H.] was challenged, the defense made a motion under People versus Wheeler.  [¶] At this time I would like for the district attorney to respond to that.  [¶] MR. MORRIS [a defense attorney]:  Is your Honor ․ holding there [is] a prima facie case [in] which he has to give justification?  [¶] THE COURT:  I'm saying there were three blacks and he excused three and I want him to tell me why.  [¶] ․ [¶] ․ The three we're dealing with [are Sandra M., Carolyn C. and Dave H.] [¶] ․ [¶]  With a note that all the while [Carol T. (a black female prospective juror) ] was on there [the tentative jury as seated].”   The prosecutor then discussed his challenges of the three jurors, and the court thereafter disposed of appellant's Wheeler motion in one word:  “Denied.”

1. The Court Made No Implied Finding of a Prima Facie Showing of Juror Exclusion for Reasons of Group Bias

Appellant contends the court's request that the district attorney respond to the Wheeler motion constituted an implied finding of group discrimination.   The first question presented here is this:  Does a trial court's request for prosecutorial input or response to a defense Wheeler motion automatically constitute its implied finding of a prima facie showing of the prosecution's exclusion of jurors for reasons of group bias, shifting the burden to justify its peremptory challenges of members of a cognizable group to the prosecution?   We answer this question in the negative.

 Under People v. Wheeler, supra, the court initially presumes that the prosecutor's challenges are being exercised on a constitutionally permissible ground.   That presumption may only be rebutted by proof of a “strong likelihood” group bias and not specific bias is the actual reason for the challenges, sufficient to create a prima facie case of discriminatory juror exclusion.   Any prosecutor's obligation to present a neutral explanation in this case for his peremptory challenges arises only if such a prima facie case is established, tending to show the “strong likelihood” of a racially motivated exclusion of black jurors from the jury.  (People v. Wheeler, supra, 22 Cal.3d at pp. 278–282, 148 Cal.Rptr. 890, 583 P.2d 748.)

We first turn to an analysis of post-Wheeler cases dealing with how or whether an implied prima facie case of group discrimination is established.

In People v. Turner (1986) 42 Cal.3d 711, 719, 230 Cal.Rptr. 656, 726 P.2d 102, a Supreme Court majority said:  “[U]nless the trial court ․ had made at least an implied finding of group discrimination, it would have had no basis for asking the prosecutor to ‘explain’ the reasons for his peremptory challenges.   We may therefore fairly deem that the inquiry implied such a finding, and shifted the burden of justification to the prosecutor.   Indeed, after Wheeler it is disingenuous to treat such inquiries as anything else.   For example, in People v. Trevino [ (1985) ] 39 Cal.3d 667, 668 [217 Cal.Rptr. 652, 704 P.2d 719], we similarly observed that ‘The trial court called upon the prosecutor to explain his exclusion of the Spanish surnamed jurors,’ and we proceeded to evaluate the sufficiency of the ensuring explanations.”

The Turner court, however, alternatively based its conclusion that an implied finding of group discrimination was made by the trial court on an independent examination of the record:  “The combination of these factors [disclosed by the record] establishes a prima facie case of group discrimination.”  (Ibid.;  accord People v. Snow (1987) 44 Cal.3d 216, 222–227, 242 Cal.Rptr. 477, 746 P.2d 452.)

Three years later, in People v. Johnson, supra, Justice Panelli, who had written a concurring opinion in Turner, wrote for the majority in rejecting a Wheeler motion.14  Johnson concerned the validity of the prosecutor's explanation of his use of peremptory challenges in a case, unlike the case at bench, where the record showed he had (in the words of Justice Mosk's dissent) “deliberately struck all the Blacks, all the Asians, and all the Jews from the jury that condemned [the defendant] to death.”  (47 Cal.3d at p. 1254, 255 Cal.Rptr. 569, 767 P.2d 1047, emphasis added.)

The trial court in Johnson asked the prosecutor “ ‘Do you wish to respond [to the defendant's Wheeler motion]?’   It then proceeded to hear the prosecutor's explanations for the use of the peremptory challenges.”  (47 Cal.3d at p. 1217, 255 Cal.Rptr. 569, 767 P.2d 1047, brackets in original, emphasis added.)   The majority in Johnson then characterized Turner as finding “that such an inquiry by the trial court constituted ‘at least an implied finding’ of a prima facie showing” and proceeded to evaluate the prosecutor's explanations.  (Ibid.)

After its decision in Johnson, the Supreme Court addressed the question at issue here in a unanimous opinion authored by Justice Broussard in People v. Bittaker (1989) 48 Cal.3d 1046, 259 Cal.Rptr. 630, 774 P.2d 659.

In Bittaker, the prosecutor challenged 5 of 6 black jurors and 21 of 60 white jurors.   On defendant's claim these facts demonstrated a prima facie case of group bias shifting to the prosecutor the burden to justify the challenges, “The court afforded the prosecutor a chance to respond—the prosecutor denied the charge—and then denied defendant's motion.”  (Id., 48 Cal.3d at p. 1091, 259 Cal.Rptr. 630, 774 P.2d 659.)   The content of the prosecutor's denial of the charge is not set forth in the opinion.

Without citing either Turner or Johnson, Bittaker states:  “Defendant argues that by offering the prosecutor a chance to respond to the motion, the court in effect found that defense counsel had made a prima facie showing of group bias, thus shifting to the prosecutor the burden to justify his challenges.   We do not so interpret the judge's ruling.   He did not call upon the prosecutor to explain his challenges, but to respond to the defense motion.   When the judge then denied the motion, he did so on the ground that the defense had not made out a prima facie showing of group bias, not that the prosecutor had rebutted such a showing.  [¶] To establish a prima facie case, the defendant ‘must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.’  (People v. Wheeler, supra, 22 Cal.3d 258, 280 [148 Cal.Rptr. 890, 583 P.2d 748].)   In determining whether the defendant has made such a showing, trial judges may ‘bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience.’  (Id., at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748].)  [¶] ․ [T]he record here suggests grounds upon which the prosecutor might reasonably have challenged the five Black jurors he excused.”  (48 Cal.3d at pp. 1091–1092, 259 Cal.Rptr. 630, 774 P.2d 659, emphasis added.)

The language of Turner, and Johnson 's citation to Turner, seem difficult to reconcile with the language of Bittaker;  i.e., the trial court's invitation to the prosecutor “ ‘to respond’ ” to a Wheeler motion in Johnson was said to constitute, on the authority of Turner, an implied finding of a prima facie showing of group bias;  the same invitation in Bittaker was held not to lead to that result, but rather to represent the inviting of prosecutorial response solely as an aid to the court in determining the threshold Wheeler question of whether a prima facie showing of group bias had been made.15

The problems of appellate analysis of the issue before us are unnecessarily compounded where, as here, no clear statement is placed on the record by the trial court denying a Wheeler motion, after inviting the prosecutor's response thereto.   The court should clearly state whether its denial of the motion is based on a finding that no prima facie showing of group bias has been made, or on a finding that the prosecutor has met its burden of justifying peremptory challenges after that prima facie showing was made.

The Fifth District Court of Appeal in People v. McCaskey (1989) 207 Cal.App.3d 248, 257, 254 Cal.Rptr. 742, decided before either Johnson or Bittaker, examined the issue of a trial court's intent “to make an implied finding that a prima facie case was established under Wheeler.”

Justice Best explained as follows:  “A reviewing court must look carefully at the circumstances faced by the trial court whenever it is asked to decide whether the trial court intended to make an implied finding that a prima facie case was established under Wheeler.   It is clear that not every request for input from the prosecutor is intended by a trial court as a prima facie finding.   The trial court may simply want input on the very question of whether a prima facie case has been established․  It would have been imprudent, and maybe unfair, for the trial court to decide this question without providing the prosecutor an opportunity to state her observations or opinion.   The trial court must be given some latitude to make inquiries to more preparedly deal with the situation before it.”  (Id., 207 Cal.App.3d at p. 257, 254 Cal.Rptr. 742, emphasis added;  accord People v. Hall, (1989) 208 Cal.App.3d 34, 43, 256 Cal.Rptr. 149 [“In the present case, we cannot deem the trial court's invitation to the prosecutor to state his reasons ․ to be an implied finding that defendant had established a prima facie case of group bias.”].)

Turner was distinguished by McCaskey, inter alia, “on the basis that the Supreme Court felt the ‘combination of ․ factors' in [Turner ], not present [in McCaskey or in the case at bench], clearly established a prima facie showing of group discrimination.”  (People v. McCaskey, supra, 207 Cal.App.3d at p. 256, 254 Cal.Rptr. 742, ellipsis in original.)

The McCaskey record disclosed the trial judge to have said:  “ ‘I don't find that there has been a systematic exclusion of Mexican–Americans from this jury.’ ”  (Ibid., emphasis omitted.)   This statement concerning lack of finding was made after the prosecutor, as here, was provided an opportunity by the court to respond to a Wheeler motion and had, as was the case here, availed herself of that opportunity in considerable detail by giving an explanation of her peremptory challenges;  an explanation the McCaskey court termed “unsolicited.”  (Id., 207 Cal.App.3d at p. 257, 254 Cal.Rptr. 742.)

If the court invites the prosecutor, directly or by implication,16 “to respond” to the Wheeler motion, that action, under McCaskey and Bittaker, would not seem to constitute an implied finding of a prima facie case of group bias in the exercise of peremptory challenges.   If in response to that invitation the prosecutor, without being asked therefor, gives an “unsolicited” explanation of the reasons for peremptorily challenging jurors of a cognizable group, that “is of no moment” because the court's invitation to respond to the motion means “defendant never made it past the prima facie stage.”  (People v. McCaskey, supra, 207 Cal.App.3d at p. 257, 254 Cal.Rptr. 742.)   Conversely, if the court initially asks the prosecution “to ‘explain’ ” his peremptory challenges, the language of Turner (if one ignores its examination of the record as an alternative basis of its finding a prima facie case of group bias was there established) would seem to compel a holding that such words must be interpreted as establishing an implied finding of group discrimination.

Such a limited analysis, however, would relegate appellate review, of whether the trial court impliedly found that a prima facie case of group bias was made, to a purely semantical analysis of the court's verbal exchange with counsel.   A response may include an explanation;  an explanation may constitute a response.   Simply addressing counsel for the non-moving party by name after a Wheeler motion is made is, at best, equivocal on the question of what the court invited by such means.   Such analysis would totally ignore other relevant matters of record the trial court heard and considered on the threshold question of whether a prima facie case of group discrimination had been established;  and contrary to established authority, would preclude appellate courts from considering such matters in interpreting the trial court's ruling.   Instead, on appeal, establishment of that prima facie case in the mind of the trial court would be implied solely by the form in which the court addressed its post-motion inquiries or statements to the non-moving party.   It seems incongruous to say that a direct or implied offer to respond to a Wheeler motion does not require an implied prima facie finding of group bias, precipitating a shift in justifying a peremptory challenge, regardless of what “unsolicited explanation” the prosecutor may state for the record in responding;  but that an opposite result occurs when the court requests the prosecution explain the reasons for the challenges.   We believe precedent dictates we avoid this incongruity by an independent review of the record, as we later discuss, to avoid the unfair and illogical result that a limited analysis of a trial court's implied findings, based solely on such semantical distinctions, might produce.

In the case at bench, such semantical analysis alone would not, in any event, conclusively reveal whether the trial court made an implied prima facie finding of group bias.   The court's statements to the prosecutor arguably contained elements of both an invitation to respond to the Wheeler motion and a request to explain the reasons three minority jurors were challenged.   Accordingly, we examine the exchange between court and counsel as a first step in interpreting the court's ruling by determining if it intended to make an implied finding of group bias.

 The trial court, as in Bittaker and McCaskey, asked the prosecutor to “respond” to the motion.   A defense attorney interrupted, in an obvious attempt to establish of record a court finding of a justification burden shift to the prosecutor, by asking:  “Is your Honor ․ holding there [is] a prima facie case ․ ?”  The judge, who was obviously alert to the ramifications of Wheeler, having granted a motion thereunder previously in the trial, refused to take this bait.   He answered the defense question by saying the Wheeler issue went to the challenge of three black jurors while one black prospective juror remained seated, and he wanted the prosecutor to tell him why those three jurors were excused.   We believe the court's refusal to confirm that a prima facie case of group bias in such challenges had been established, on defense counsel's direct inquiry, impliedly and significantly indicated the court had not made that finding.   We interpret the court's statement, in response to the interruption by defense counsel, as one intended to do nothing more than refocus counsel's attention on the response requested of the prosecutor, before defense counsel interrupted, to aid the court in determining whether a prima facie case of group bias was established.   The court's statement did not trigger a shift in burden to the prosecutor to justify the peremptory challenges at issue, i.e., that statement did not imply a prima facie finding of group bias.   It follows that, when the prosecution's response had been received and both defense and prosecutor had addressed the court, the latter's response to the motion—“Denied”—was one simply indicating its finding no prima facie case had been established.

A review of the record, as we later discuss, independently confirms this conclusion, which we find was reached by a trial judge who saw and heard the entire voir dire proceedings, and was “aware of his duty under Wheeler to be sensitive to the manner in which peremptory challenges were used.   He found no improper use of the peremptory challenges by the prosecutor.”  (People v. Johnson, supra, 47 Cal.3d at p. 1221, 255 Cal.Rptr. 569, 767 P.2d 1047.)

Before undertaking our independent record review, we note, as have other courts, that the cases considering whether the trial court has made an implied finding of a prima facie case of group discrimination, in its response to a Wheeler motion, all have one common but unfortunate constituent:  The trial court does not clearly state on the record if its statements or inquiries to the adverse side are made because it finds a prima facia case of group discrimination has been established on the record, or if it intends thereby simply to seek information to aid in deciding the threshold question of whether a prima facie case has been established.   A clear statement on the record that a prima facie case has or has not been established eliminates the necessity on appeal of determining by implication, through an analysis of his colloquy with counsel and of the record, what the trial judge found.  “We are not to be understood, however, as approving of rulings by implication on this important issue.   Rather, in every case in which a Wheeler motion is made the trial court should expressly rule on the sufficiency of the showing of a prima facie case of group bias.”  (People v. Turner, supra, 42 Cal.3d at p. 719, fn. 3, 230 Cal.Rptr. 656, 726 P.2d 102, emphasis added.)

 In determining if a prima facie case of constitutional abuse has been shown, as a first distinct step, the court directs its focus to the contention of the objecting party and the record.   The objecting party has the burden of establishing the prima facie case of group discrimination before justification by the other side is appropriate.  People v. Granillo (1987) 197 Cal.App.3d 110, 122, 242 Cal.Rptr. 639 points out the problem of “an undoubtedly unintended implication” of establishment of such prima facie case, arising because the court hears justification for the challenges in advance of determining the threshold question of whether a prima facie case has been established.   To avoid such “undoubtedly unintended implication,” the court soliciting input from the non-moving party, for the purpose of determining whether a prima facie case has been established, should simply state on the record that such input or comment is solicited for that reason.

2. The Record Independently Reflects Proper Neutral Grounds Existed for Exercise of the Questioned Prosecution Peremptory Challenges

People v. Bittaker, supra, People v. Turner, supra, and People v. Dominick (1986) 182 Cal.App.3d 1174, 227 Cal.Rptr. 849 are all cases in which the record was independently reviewed as a basis of determining if it suggested “grounds upon which the prosecutor might reasonably have challenged the ․ jurors he excused.”  (People v. Bittaker, supra, 48 Cal.3d at p. 1092, 259 Cal.Rptr. 630, 774 P.2d 659.)  “We have independently examined the entire record concerning jury selection in this case and agree with both the trial court and the Attorney General that this record amply evidences ‘independent grounds' for the peremptory challenges in question.”  (People v. Dominick, supra, 182 Cal.App.3d at p. 1195, 227 Cal.Rptr. 849, emphasis added.) 17

We have, as a second step in our analysis, independently reviewed the appellate record of the voir dire of the individual black jurors whose challenge the Wheeler motion concerned.   We conclude that our interpretation of the trial court's ruling, as one intended to impliedly find no prima facie case of unjustified systematic exclusion of any black juror 18 was thereby established, is independently supported by our review.   The record clearly demonstrates that proper neutral reasons for those challenges were apparent to the trial court when it impliedly found no prima facie case of group discrimination had been established.

When the Wheeler motion was made, jury selection was in progress.   The trial court was then required to decide whether a prima facie case of challenge based on group bias was established as to any black juror whose peremptory challenge was urged as Wheeler error.

We have earlier discussed the peremptory challenge of Sandra M.   The record shows her prior incarceration for theft and her apparent attempt to conceal that matter.   Appellant implicitly concedes, and we conclude, her challenge was unrelated to group bias and properly exercised.

 The record shows and the prosecutor noted that juror Dave H. had a brother in prison on a murder conviction.   The risk of the use of threats and intimidation by persons associated with appellant and his gang, directed against the brother in order to influence Dave H., was an obvious and legitimate neutral basis for the challenge of Dave H.

We are left with only the challenge to Carolyn C.   The voir dire disclosed the following relevant facts.   Carolyn C. could not remember when she was last employed,19 although that date was at least five years prior to the trial.   She and her two young children lived with her unemployed parents.

Carolyn C. had reported for jury duty on the wrong day, in fact a month early, because she said she had somehow misread the date on her jury form which ordered her to appear.   She had visited her brother-in-law while he was confined in Santa Rita jail for some crime which she did not remember, but thought might have been “stealing or something like that.”   She could not remember when this visit to her brother-in-law in jail had happened:  “Oh, wow, it has been a long time.   I don't even remember.”   She had not listed his incarceration on her jury form where such information was requested.   She was told that if chosen as a juror she must “reach some conclusion after comparing all the evidence in the case.  [¶] Do you think you could do that?”   Her response was not one calculated to inspire confidence in the prosecution:  “I could try.   I don't want to say ‘yes' or ‘no[.’]”

The prosecutor's statements, made after his response was invited by the court following appellant's Wheeler motion, were made more than one month after the voir dire of Carolyn C.   He stated:  “With regards to Miss [C.], she has been unemployed since I guess '81.   Has two kids and apparently her only means of subsistence is with her parents.   That is not the profile for the type of juror I want on this case.  [¶] THE COURT:  Okay.”  (Emphasis added.)

In reviewing the trial court's ultimate denial of the Wheeler motion, we are required to and do give “great deference to the trial court in distinguishing bona fide reasons from sham excuses.”  (People v. Johnson, supra, 47 Cal.3d at p. 1221, 255 Cal.Rptr. 569, 767 P.2d 1047, emphasis added;  accord Batson v. Kentucky (1986) 476 U.S. 79, 98, fn. 21, 106 S.Ct. 1712, 1724, fn. 21, 90 L.Ed.2d 69 [“[A] reviewing court ordinarily should give those findings great deference.”].)

 The trial court's denial of the Wheeler motion, because no prima facie case of group discrimination as to Carolyn C. was established, is fully supported by the record of her voir dire examination.   For whatever reason, she came to court for jury selection in a notorious case a month prior to the date she was requested to appear, demonstrating some degree of inattention.   She had visited a relative in jail and had not revealed that fact on her jury questionnaire.   Asked if she would be able to compare evidence in the case and reach a conclusion, she gave a response which would hardly appeal to the prosecutor—nor indeed to any party intending to present complex evidence for a jury's consideration.   Under People v. Johnson, supra, we are also required to give great deference to the judgment of the trial court in deciding a Wheeler motion, because of its observations of the voir dire and demeanor of the potential jurors.   The prosecutor did not exhaustively and effectively enunciate all the matters here relevant, and treated them perhaps too summarily in accepting the court's invitation to respond to the Wheeler motion and in equating them to the “profile” projected by the juror.   The experienced trial court, however, observed the juror's examination and could obviously consider her “profile,” as measured by the context of the voir dire examination, to include these matters apart from her unemployment.20

 Appellant shifts gears a bit concerning the unemployed status of Carolyn C., contending that the prosecutor's reasons for challenging her had some impermissible basis not in race, but in “socio-economic” status.   It is initially clear that, here, Carolyn C.'s long-term unemployment and her lack of any other apparent means of support were not being manipulated by the prosecutor simply as a pretext for racial discrimination.   The prosecution accepted other black jurors who were employed.   To the extent appellant might be construed to be making a different argument, i.e., that unemployed status or seeming lack of any source of income is also, like race, an impermissible basis for jury selection, his argument fails.   The unemployed or persons with low incomes “do not constitute a cognizable class.”  (People v. Johnson, supra, 47 Cal.3d at p. 1214, 255 Cal.Rptr. 569, 767 P.2d 1047 [low income persons are not a class for jury selection purposes under the requirement that the venire pool be an accurate cross-section of the population];  see also People v. Harris (1989) 47 Cal.3d 1047, 1078, 255 Cal.Rptr. 352, 767 P.2d 619 [rejecting claims that there was a cognizable class for jury selection purposes composed of self-employed persons or those who did not have employers who would continue their salaries during jury service];  People v. Marbley (1986) 181 Cal.App.3d 45, 47, 225 Cal.Rptr. 918 [there is no cognizable group composed of “young people” for Wheeler purposes, which would require “ ‘an identifiable group distinguished on racial, religious, ethnic, or similar grounds' ”;  quoting People v. Wheeler, supra, 22 Cal.3d at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748.].)

Every counsel who has ever participated in jury selection knows that a prospective juror's employment status is frequently a crucial consideration.   Virtually all questionnaires directed to prospective jurors and every voir dire conducted by court or counsel elicit such facts.   Substantial effort is devoted to obtaining such information because it is universally regarded as a relevant and legitimate consideration in jury selection.   The California Standards of Judicial Administration specifically contemplate that voir dire should include substantial inquiry regarding the prospective jurors' employment status.  (Cal. Standards Jud.Admin., §§ 8(c)(20) & 8.5(c)(20) [23 West's Cal.Codes Ann.Rules, pt. 2 (1981 ed.) pp. 426, 435] [“Each of you [prospective jurors] should now state your name, where you live, your marital status (whether married, single, [or] widowed or divorced), the number and ages of your children if any, your occupational history, and the name of your present employer.”   Emphasis added.].)   The Judicial Council has obviously specified these employment-related matters for voir dire inquiry as one aid to the exercise of peremptory challenges during jury selection.

People v. Dominick, supra, cited as a “consideration[ ] commonly observed in our trial courts which lead[s] to use of peremptory challenges” a record disclosing, inter alia, that a challenged juror “was an unemployed divorcee with three children who had quit her last job after only three months ․”  (182 Cal.App.3d at p. 1195, fn. 13, 227 Cal.Rptr. 849, emphasis added.)   Thus, Carolyn C.'s employment status was a neutral reason, legitimately supporting her peremptory challenge and the trial court's implied ruling no prima facie case was established showing she was challenged because of group bias.21

In deferring to the trial court's decision, our inquiry simply extends to whether “the record here suggests grounds upon which the prosecutor might reasonably have challenged the ․ Black jurors he excused.”  (People v. Bittaker, supra, 48 Cal.3d at p. 1092, 259 Cal.Rptr. 630, 774 P.2d 659, emphasis added, citing People v. Dominick, supra, 182 Cal.App.3d 1174, 227 Cal.Rptr. 849 and People v. Rousseau (1982) 129 Cal.App.3d 526, 179 Cal.Rptr. 892;  see People v. Dominick, supra, 182 Cal.App.3d at p. 1195, 227 Cal.Rptr. 849.)

The trial court was also plainly no rubber-stamp for the prosecutor, having granted a previous motion for mistrial based upon Wheeler error.   A natural consequence of the granting of such a prior motion, which required the prosecutor to repeat the laborious voir dire process, is the chastening of the prosecutor, and the special vigilance of the trial court to prevent a repetition of the same fault.   The record indicates that is what occurred here.   Proper neutral grounds existed for the challenges of the individual jurors assigned as Wheeler error, fully supporting our interpretation of the trial court's ruling that no implied finding of juror exclusion for reasons of group bias was intended to be made.

3. No Pattern of Impermissible Wheeler Juror Exclusion Is Demonstrated by the Record

Finally, we have also examined the record to determine more broadly if it demonstrates any pattern of improper exclusion of jurors.   We find no such pattern.

People v. Harvey (1984) 163 Cal.App.3d 90, 208 Cal.Rptr. 910 dealt with the question of whether a pattern of impermissible Wheeler juror exclusions is shown by a record where the prosecutor challenged two of three black persons.   In a factual situation clearly analogous to the case at bench, Justice Wiener wrote the following, in language we endorse:  “We note a considerable tension in this area of the law between the desirability of theoretical consistency and the need to develop workable rules which can be understood and applied by lawyers and trial judges.   In theory at least, even the exclusion of a single prospective juror may be the product of an improper group bias.   As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.   Assuming that peremptory challenges are not to be replaced with a system requiring that counsel explain the basis for each and every challenge, it would appear that a pattern of exclusion must be evident before Wheeler 's prima facie case requirement can be satisfied.”  (Id. at p. 111, 208 Cal.Rptr. 910, emphasis in original.) 22

“The cases interpreting Wheeler seem to suggest that absent some apparent alternative explanation, the use of peremptory challenges to exclude three or more prospective jurors where such exclusions operate to eliminate all or substantially all of the members of a cognizable group from the jury panel is sufficient to establish a prima facie case.   The attorney who has so exercised his peremptory challenges must then explain to the court the rationale for his challenges.  [Citation.]”  (Id., 163 Cal.App.3d at pp. 111–112, 208 Cal.Rptr. 910, emphasis added.)

“In the present case, the prosecutor's peremptory challenge of two black prospective jurors does not suggest the necessary pattern of impermissible exclusion to establish a prima facie showing.  [Citation.]  This is particularly true where the two challenges do not operate to exclude all members of the cognizable class from the jury.”  (Id., 163 Cal.App.3d at p. 112, 208 Cal.Rptr. 910;  fn. omitted, emphasis added.)

There was no “strong likelihood” of improper racial motivation shown here giving rise to a prima facie case.  (People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)   No court has ever held that merely the slight over-inclusion of a particular group on the jury, as here, or its inclusion in numbers comparable to the makeup of the venire panel, demonstrates a “strong likelihood” of improper motivation sufficient to create a prima facie case of the improper exclusion of that group from the jury.   In fact, a consistent line of precedent holds that it is a showing of either total, or almost total, exclusion which demonstrates the “strong likelihood” required to raise such a prima facie case.  (Id. at pp. 263, 283, 148 Cal.Rptr. 890, 583 P.2d 748 [“[T]he prosecutor proceeded to strike each and every black from the jury by means of his peremptory challenges․”  “Applying these rules to the record before us, we hold that defendants made a prima facie showing that the prosecutor was exercising peremptory challenges against black jurors on the ground of group bias alone.”];   cf. People v. Johnson, supra, 47 Cal.3d at p. 1256, 255 Cal.Rptr. 569, 767 P.2d 1047 (dis. opn. of Mosk, J.);  People v. Snow, supra, 44 Cal.3d at p. 226, 242 Cal.Rptr. 477, 746 P.2d 452.)

Where members of a group are not excluded from the jury, and are in fact included, there is obviously no prima facie case of exclusion.   In People v. Boyd (1985) 167 Cal.App.3d 36, 48–49, 212 Cal.Rptr. 873, this manifestly correct conclusion was reached on facts which are almost precisely the same as ours:  Appellant argued Wheeler error because the prosecutor had challenged three blacks, although two blacks were selected to serve on the jury.  “From the totality of circumstances, it is clear that defense counsel had not made out a prima facie case at any time that the district attorney was using his peremptory challenges to strike jurors on the ground of group bias alone so as to shift the burden of explanation to the prosecutor․”  (Id. at p. 50, 212 Cal.Rptr. 873, emphasis added.)

No prima facie case of racial exclusion was found, moreover, where two persons with Spanish surnames were challenged by the prosecutor, but another was not challenged and became a member of the jury.  (People v. McCaskey, supra, 207 Cal.App.3d at p. 254, 254 Cal.Rptr. 742.)

We finally note that a unanimous Supreme Court in Bittaker, supra, also found no prima facie case where the prosecutor struck five of six black jurors, leaving the jury about 8 percent black even though the venire was about 9 percent black.  (48 Cal.3d at p. 1091, 259 Cal.Rptr. 630, 774 P.2d 659.)   Ours is a case in which the jury after selection was about 17 percent black and in which the venire panel had been only about 14 percent black, clearly indicating no strong likelihood of improper exclusion of black jurors.

 Our independent review of the record reveals that no pattern of impermissible exclusion of black jurors for reasons of group bias was shown to exist, so as to support an implied finding of a prima facie case of group bias in jury selection.

We conclude racial or group bias was not the basis of any peremptory challenge of the prosecution to any individual juror of a panel in which blacks and women were slightly over-represented on the trial jury when compared to their proportion of the venire panel, in which at least three races or ethnic origins were represented, and in which a black was elected by his fellow jurors to serve as foreperson.

IV. DISPOSITION

The judgment of conviction is affirmed.

I concur in the judgment because I agree that the facts do not establish a prima facie case of group discrimination.   I write separately because I believe the majority's confusing opinion, which is in large part gratuitous, misconstrues the case law, invites group bias in the exercise of peremptory challenges, and constitutes a dangerous precedent.

I.

The question whether a prima facie case of group discrimination was found by the trial court is governed by People v. Turner (1986) 42 Cal.3d 711, 230 Cal.Rptr. 656, 726 P.2d 102.   The Supreme Court declared in that case that a judicial request for an explanation of the reasons for one or more peremptory challenges must be deemed an implied finding of group discrimination.   Indeed, the court observed, “it is disingenuous to treat such inquiries as anything else.”  (Id., at p. 719, 230 Cal.Rptr. 656, 726 P.2d 102.)

The majority claims that this rule is “difficult to reconcile” with language in People v. Bittaker (1989) 48 Cal.3d 1046, 259 Cal.Rptr. 630, 774 P.2d 659.  (Maj. opn. at p. 720.)   According to the majority, Bittaker creates a distinction between the situation in which the trial judge requires counsel to explain his peremptory challenges—in which case the court is deemed to have made an implied finding of a prima facie case of group discrimination—and the situation in which the judge merely offers counsel an opportunity to respond to the Wheeler motion, in which case there is no implied finding of a prima facie case.   My colleagues have misconstrued Bittaker.   When he denied the Wheeler 1 motion, the trial judge in Bittaker stated that “he did so on the ground that the defense had not made out a prima facie showing of group bias” (id., at p. 1092, 259 Cal.Rptr. 630, 774 P.2d 659), which the Supreme Court concluded was correct.   Thus Bittaker stands for the fairly self-evident proposition that an implied finding of a prima facie case cannot be deemed to exist where the trial court has made an express finding that a prima facie case does not exist.

The purported difference between requiring counsel to explain his peremptory challenges and simply offering him an opportunity to respond to the motion—a talmudic distinction that will surely be lost on anyone familiar with the realities of trial practice 2 —provides no sure footing for a reliable rule of law.   The exegetical effort of an appellate court to discover whether an inexplicit trial judge has mandated a response or merely permitted one, such as that undertaken in People v. McCaskey (1989) 207 Cal.App.3d 248, 254 Cal.Rptr. 742, is and should remain unnecessary.3  The Supreme Court has repeatedly “stressed the importance of an express ruling by the trial court as to whether a prima facie case has been shown․  [Citation.]”  (People v. Snow (1987) 44 Cal.3d 216, 222, 242 Cal.Rptr. 477, 746 P.2d 452;  People v. Turner, supra, 42 Cal.3d at pp. 719, fn. 3, 230 Cal.Rptr. 656, 726 P.2d 102.)   As Justice Panelli and others have pointed out, the failure of the trial court to expressly rule that the moving party has met his burden of showing a prima facie case of group bias deprives the other party of notice that he is required to justify his peremptory challenges.  (People v. Turner, supra, 42 Cal.3d at pp. 728, 729, 230 Cal.Rptr. 656, 726 P.2d 102, conc. opn. of Panelli, J.;  People v. Gonzalez (1989) 211 Cal.App.3d 1186, 1198, 259 Cal.Rptr. 870 [“The prosecution should not be obligated to justify peremptory challenges unless the court has found that prima facie evidence of improper exclusion exists.”].)   For this reason, and presumably as well because the absence of an express finding complicates appellate review, the Turner court declared that a trial court that fails to make an express ruling but nonetheless requests a response to a Wheeler motion must be deemed to have made an implied finding of a prima facie case.  Turner, which was recently followed in People v. Johnson (1989) 47 Cal.3d 1194, 1217, 255 Cal.Rptr. 569, 767 P.2d 1047, is still the final word of our high court on this subject and must be followed.   Moreover, the Turner rule has the virtue of placing the responsibility to initially decide whether a prima facie case exists where it belongs:  at the trial level.   An appellate court required to make the determination on the basis of an ambiguous record must not only speculate as to what the trial judge may have had in mind but cannot apprehend the “body language” and other subjective considerations deemed so important in People v. Johnson, supra, 47 Cal.3d at p. 1219, 255 Cal.Rptr. 569, 767 P.2d 1047.

Unlike Bittaker, the trial judge in this case not only failed but actually refused to unambigously state whether by asking the district attorney to respond to the Wheeler motion—i.e., to explain his challenges—he had concluded that the defense had made out a prima facie case.4  However, the court's statement that “there were three blacks and [the prosecutor] excused three and I want him to tell me why” clearly mandated an explanation of the peremptory challenges in question.   Accordingly, I believe we are compelled, not only by Turner but as well by Bittaker, to conclude that the trial court made an implied finding of a prima facie case of group discrimination.   Like the Turner court, I think “it is disingenuous to treat such inquiries as anything else.”  (People v. Turner, supra, 42 Cal.3d at p. 719, 230 Cal.Rptr. 656, 726 P.2d 102.)

I concur in the judgment because I agree that the record in this case provides no basis for such a finding and that therefore the district attorney had no duty to rebut a prima facie showing of systematic exclusion.   The defense failed to make out a prima facie case, in my view, because evidence of specific bias was elicited from each of the prospective jurors in question.   This conclusion does not rest on the statistics the majority uses to characterize the racial makeup of the venire and jury, which I consider unimportant.5  Nor does my analysis assume that long term unemployment, without more, is a valid basis for a peremptory challenge, the subject to which I now turn.

II.

The majority's elaborate attempt to show that Carolyn C. was justifiably challenged, essentially because she was unemployed outside the home,6 is not only unpersuasive but uncalled-for.   The obvious reason the peremptory challenge of this black juror did not create a prima facie case of discrimination is because she had visited her brother-in-law at Santa Rita Jail, the scene of the murder, and initially failed to disclose this information.   In light of this adequate justification for her challenge it is entirely unnecessary to inquire whether she could also properly have been challenged because she reported for jury duty on the wrong day or because she was unemployed.

As stated in the majority opinion, the district attorney's entire explanation for the use of a peremptory challenge of Carolyn C. was that “she has been unemployed since I guess '81.   Has two kids and apparently her only means of subsistence is with her parents.   That is not the profile for the type of juror I want on this case.”   If I thought a prima facie case of group bias had been established as a result of the challenge of Carolyn C., thus shifting to the prosecutor the burden of persuading the court that the challenge was exercised “on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses” (Wheeler, supra, 22 Cal.3d at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748), I would conclude that he had failed to carry this burden.   The prosecutor's “explanation” fails to identify any evidence suggestive of specific bias within the meaning of Wheeler.  “If such vague remarks were held to satisfy the prosecution's burden of rebutting a prima facie case of group discrimination, the defendant's constitutional right to trial by a jury drawn from a representative cross-section of the community could be violated with impunity.”  (People v. Turner, supra, 42 Cal.3d at p. 725, 230 Cal.Rptr. 656, 726 P.2d 102;  accord Batson v. Kentucky (1986) 476 U.S. 79, 98, 106 S.Ct. 1712, 1724, 90 L.Ed.2d 69 [If such “general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause ‘would be but a vain and illusory requirement.’ ”].)

As pointed out in Wheeler, the reasons that may legitimately be used to justify a peremptory challenge “share a common element:  they seek to eliminate a specific bias as we have defined that term herein—a bias relating to the particular case on trial or the parties or witnesses thereto.   By the same token, they are essentially neutral with respect to the various groups represented on the venire:  the characteristics on which they focus cut across many segments of our society.   Thus both blacks and whites may have prior arrests, both rich and poor may have been crime victims, both young and old may have relatives on the police force, both men and women may believe strongly in law and order, and members of any group whatever may alienate a party by ‘bare looks and gestures.’ ”  (People v. Wheeler, supra, 22 Cal.3d at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748.)

The fact of long term unemployment is not here indicative of specific bias, first of all, because it does not relate to the facts of the instant case or the parties or witnesses who will appear and is therefore not logically “suggestive of juror partiality.”  (Id., at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748.)   Arguably, persons who have been unemployed for a long period of time might feel victimized by authorities and therefore more partial to the defense;  it is equally plausible, however, that such persons may feel more vulnerable to crime and therefore more partial to the prosecution.   I am unaware of any reliable evidence that jurors unemployed for lengthy periods are more or less inclined than employed jurors to convict criminal defendants.   Moreover, if there is any particular inclination it does not stem from individual biases related to the facts of a particular case or a specific party or witness, but is the result of a different general attitude about crime or the criminal justice system.   The representation on juries of such a different view, assuming it exists, is the very purpose of the constitutional right to a jury composed of a representative cross-section of the community.  (Wheeler, supra, 22 Cal.3d at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748.)   The presumption that certain jurors are biased simply because they have been unemployed for a long time is precisely the sort of “group bias” that is constitutionally forbidden.  “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 to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.”  (Peters v. Kiff (1972) 407 U.S. 493, 503–504, 92 S.Ct. 2163, 2168–2170, 33 L.Ed.2d 83, opn. of Marshall, J., fn. omitted.)   Jurors must, in other words, be challenged as individuals, on the basis of situation-specific biases.   They cannot properly be challenged because they are members of a group thought to possess a distinctive point of view.

Claiming that employment status “is universally regarded as a relevant and legitimate consideration in jury selection” (maj. opn. at p. 725), the majority cites certain provisions of the Standards of Judicial Administration Recommended by the Judicial Council.  (Ibid.)  The cited provisions do not, however, relate to the fact of employment or unemployment but to the nature of a prospective juror's present and past occupations, which may of course be very indicative of actual or specific bias.  (Cal. Standards Jud.Admin., §§ 8, 8.5.)   Moreover, the fact that it is proper to ask a prospective juror whether he is employed does not mean that he may be peremptorily challenged simply because he has been unemployed for a long time.

Unemployment is an improper basis for a peremptory challenge not only because it not probative of specific bias but because it is not “neutral” with respect to the various groups represented on the venire.   That is, the use of this factor to justify peremptory challenges would “significantly skew the population mix of the venire in one direction” (Wheeler, supra, 22 Cal.3d at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748;  accord Batson v. Kentucky, supra, 476 U.S. at p. 98, 106 S.Ct. at p. 1724) and impair the representativeness of the jury.

Long term unemployment obviously does not equally afflict “both rich and poor.”  (Ibid.)  In People v. Turner, supra, 42 Cal.3d 711, 230 Cal.Rptr. 656, 726 P.2d 102, the prosecutor explained his use of a peremptory challenge to exclude a black juror “by emphasizing that [h]e ‘was a truck driver.’ ”   (Id., at p. 722, 230 Cal.Rptr. 656, 726 P.2d 102.)   The Supreme Court rejected this explanation, stating that “the remark suggests yet another impermissible group bias behind this challenge, because trial by a jury from which working-class people are systematically excluded is also a violation of the representative cross-section rule.  [Citations.]”  (Id., at p. 722, 230 Cal.Rptr. 656, 726 P.2d 102.)   Similarly, in Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 the United States Supreme Court struck down the exclusion from the jury lists of all day laborers.  “Were we to sanction an exclusion of this nature,” the court declared, “we would encourage whatever desires those responsible for the selection of jury panels may have to discriminate against persons of low economic or social status.   We would breathe life into any latent tendencies to establish the jury as the instrument of the economically and socially privileged.”  (Id., at pp. 223–224, 66 S.Ct. at p. 987.)  “Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society.   Jury competence is an individual rather than a group or class matter.   That fact lies at the very heart of the jury system.   To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.”  (Id., at p. 220, 66 S.Ct. at pp. 985–986, cited with approval in People v. Wheeler, supra, 22 Cal.3d at p. 268, 148 Cal.Rptr. 890, 583 P.2d 748.   See also, People v. White (1954) 43 Cal.2d 740, 749, 278 P.2d 9.)

Neither People v. Harris (1989) 47 Cal.3d 1047, 255 Cal.Rptr. 352, 767 P.2d 619 nor People v. Johnson, supra, 47 Cal.3d 1194, 255 Cal.Rptr. 569, 767 P.2d 1047 stand for the proposition that persons long unemployed may for that reason be excluded from the jury, as the majority suggests.   The defendants in those cases claimed that the refusal to order payment of juror fees in excess of the $5 fixed by statute or the granting of hardship exclusions removed poor people from the venire, violating the fair cross-section requirement.   These contentions were rejected primarily because the defendants failed to show that the persons excluded—some of whom were excused “because their absence from a job would cause serious hardship to an employer” (Harris, supra, 47 Cal.3d at p. 1077, 255 Cal.Rptr. 352, 767 P.2d 619)—were all poor persons or otherwise constituted a distinctive group whose absence from the venire would upset the “demographic balance.”  (Ibid.;  People v. Johnson, supra 47 Cal.3d at p. 1214, 255 Cal.Rptr. 569, 767 P.2d 1047.)   It is true that in dictum the Johnson court went on to note that, in any event, “persons with low incomes do not constitute a cognizable class.”   (Johnson, supra, at p. 1214, 255 Cal.Rptr. 569, 767 P.2d 1047), citing People v. Estrada (1979) 93 Cal.App.3d 76, 155 Cal.Rptr. 731.)   The citation to our opinion in Estrada makes it clear that the Johnson court was not purporting to legitimate the exclusion from juries of unemployed persons.   In Estrada we held that “less educated” persons, “young adults,” “blue collar workers,” and “households with incomes less than $15,000” were either too vague or limitless to constitute a cognizable group for Wheeler purposes.  (Id., at pp. 90–91, 155 Cal.Rptr. 731.)   We went on to point out, however, that “we d[id] not mean to imply that the proper kind of data could not be gathered to delineate a constitutionally cognizable group based on family income, and our Supreme Court so intimated in People v. Wheeler, supra, 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748].”  (Id., at p. 92, fn. 10, 155 Cal.Rptr. 731.)   To say that persons with “low incomes” are too vague a group to be constitutionally cognizable does not mean that long term unemployed persons with no income, entirely dependent on government or others, constitute too vague a group.   In any event, there is no reported case upholding the exclusion of such unemployed persons.   Moreover, the statement in Wheeler that the factors indicative of specific bias that may justify a peremptory challenge must be “essentially neutral” with respect to “both rich and poor” (Wheeler, supra, 22 Cal.3d at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748) very strongly suggests that unemployed jurors on welfare or wholly dependent on others for long periods may not for that reason be peremptorily challenged.

Unemployment is not a neutral factor for the additional reason that it is suffered by people of color at a much higher rate than others.   The disparity is most pronounced with respect to blacks.   In 1989, the year in which this case was tried, black unemployment in California was about twice that of the total population of this State and more than twice that of the white population.7  The majority's unprecedented approval of the use of long term unemployment as a reason to peremptorily challenge prospective jurors therefore provides a convenient mask for racially based challenges the courts should rigorously prohibit, not facilitate.

The only case cited by the majority that appears to lend credence to the idea that Carolyn C.'s status as an unemployed person was a neutral reason justifying a peremptory challenge is People v. Dominick (1986) 182 Cal.App.3d 1174, 227 Cal.Rptr. 849.   The majority seizes upon a footnote in that case assertedly indicating that a peremptory challenge was validly exercised because the juror in question “was an unemployed divorcee with three children.”  (Id., at p. 1195, fn. 13, 227 Cal.Rptr. 849.)   The footnote also points out, however, that the juror had “stated that she did not know if she could impose the death penalty” (ibid.), as the prosecutor wanted.   This response, which related to the case to be tried and was therefore indicative of specific bias, was undoubtedly far more responsible for the peremptory challenge than the juror's marital or employment status.   To the dubious extent Dominick can be construed to suggest that the status of being an unemployed single mother is in and of itself a sufficient neutral reason for the exercise of a peremptory challenge it conflicts with the rationale adopted by the United States Supreme Court in Taylor v. Louisiana (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, and Ballard v. United States (1946) 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181, regarding the exclusion of women from jury panels, and should not be followed.   Single mothers dependent on government or on family for lengthy periods comprise far too large and distinct a group within our society to exclude without doing violence to the fair cross-section requirement.

It is in this connection pertinent to note that in certain metropolitan areas of this state a large number of economically dependent single mothers are members of racial minorities.   Thus, given the district attorney's reference to Carolyn C.'s “kids” as well as her financial dependence, one cannot help but wonder whether the “profile” he wanted to exclude from the jury in this case is that of a welfare mother, which in Oakland, where this case was tried and the prospective juror lived, almost invariably refers to black women.8  “[I]n 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.  [Citation.]  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․'  [Citation.]”   (People v. Motton (1985) 39 Cal.3d 596, 605–606, 217 Cal.Rptr. 416, 704 P.2d 176.)

The use of employment status as a basis upon which to peremptorily exclude prospective jurors, which implicates issues of class and race if not also gender, exemplifies group bias and violates the right to trial by a jury drawn from a representative cross-section of the community, a right guaranteed equally and independently by the Sixth Amendment to the federal Constitution and by article I, section 16, of the California Constitution.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

1.   Appellant was ultimately tried and acquitted of the other offenses in a separate trial.

FOOTNOTE.   See footnote *, ante.

12.   “ ‘Group bias' ” is defined by Wheeler as a presumption that certain jurors are biased “merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds․”  (22 Cal.3d at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748;  People v. Johnson (1989) 47 Cal.3d 1194, 1215, 255 Cal.Rptr. 569, 767 P.2d 1047.)

13.   During deliberations, counsel stipulated that Laura D. could be excused pursuant to her own request due to personal reasons;  she was replaced by an alternate who was a white female.   In this opinion, we will otherwise refer only to the selection of the jury members, and not the alternates.

14.   Johnson disapproved People v. Trevino (1985) 39 Cal.3d 667, 217 Cal.Rptr. 652, 704 P.2d 719, cited in Turner as illustrative of authority for the trial court's request for a prosecutor's explanation of his exercise of peremptory challenges constituting an implied finding of group discrimination.  (People v. Johnson, supra, 47 Cal.3d at pp. 1219–1222, 255 Cal.Rptr. 569, 767 P.2d 1047.)   The ground of disapproval, however, was directed to Trevino 's disallowance of prosecutorial reliance on subjective features in challenging jurors, such as “body language and the prospective juror's mode of answering questions” (People v. Johnson, supra, 47 Cal.3d at p. 1219, 255 Cal.Rptr. 569, 767 P.2d 1047;  People v. Trevino, supra, 39 Cal.3d at p. 692, 217 Cal.Rptr. 652, 704 P.2d 719), favorably quoting Justice Kaus's dissent in Trevino:  “ ‘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.’  (People v. Trevino, supra, 39 Cal.3d at p. 704, fn. 4 [217 Cal.Rptr. 652, 704 P.2d 719].)”  (People v. Johnson, supra, 47 Cal.3d at p. 1219, 255 Cal.Rptr. 569, 767 P.2d 1047, fn. omitted.)   The subjective reasons for challenging a juror may not be rejected because they are trivial;  they must, however, be specific and neutral.  (Id. at p. 1218, 255 Cal.Rptr. 569, 767 P.2d 1047.)

15.   The concurring opinion states, “the trial judge in Bittaker stated [made the explicit finding on the record in denying the Wheeler motion] that ‘he did so on the ground that the defense had not made out a prima facie showing of group bias.’ ”  (P. 728, emphasis added.)   We do not read Bittaker as so citing the record on appeal or ascribing such express finding to the trial judge.  “The court afforded the prosecutor a chance to respond—the prosecutor denied the charge—and then denied defendant's motion.”  (People v. Bittaker, supra, 48 Cal.3d at p. 1091, 259 Cal.Rptr. 630, 774 P.2d 659, emphasis added.)  Bittaker simply sustained the lower court's denial of the Wheeler motion, after examining the record, because no prima facie showing of prosecutorial challenges for group bias appeared in the record, and none could be implied from the trial court's invitation to the prosecutor to respond to the Wheeler motion.   Had the lower court made the explicit finding the concurring opinion erroneously postulates, no necessity would have existed for the Bittaker court to discuss what the lower court “in effect [or impliedly] found” by offering the prosecutor “a chance to respond to the motion.”  (Ibid.)  The quoted language erroneously ascribed to the trial judge by the concurring opinion is clearly that used by the Bittaker court in stating its own analysis of the lower court's implied findings in denying the Wheeler motion.

16.   The request for prosecutorial response to the Wheeler motion in McCaskey was also implied.   After the motion was made and argued by defense counsel, the court simply addressed the prosecutor by saying, “Ms. Begen?”  (People v. McCaskey, supra, 207 Cal.App.3d at p. 255, 254 Cal.Rptr. 742.)

17.   The type of record examination undertaken in Dominick may reveal independent grounds for a peremptory challenge inadvertently overlooked or forgotten by the prosecutor, after a lengthy jury selection process, when he is asked to explain his challenges or to respond to a Wheeler motion.   On voir dire, a challenged prospective juror may, for example, have indicated an unwillingness to believe a law enforcement witness under oath, thereby furnishing a clear ground for challenge for specific bias.   The prosecutor's failure to recollect that juror's statement of record and his consequent omission of it, either in responding to a Wheeler motion on the issue of a prima facie showing of group bias or in justifying his past peremptory challenges if the burden therefor has shifted to him, should not preclude the trial court from considering such statement in formulating its decision (which should be expressly stated on the record) as to whether a prima facie case of group bias has been established;  or, if so, whether the burden of justifying the challenge has been met.

18.   Blacks are, obviously, a cognizable group under Wheeler.   (22 Cal.3d at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748.)

19.   Our concurring colleague speculates that Carolyn C. was excused because she was on welfare (i.e., that she was a “welfare mother”).  (Conc. opn., p. 733.)   The appellate record nowhere so indicates.

20.   We do not wish to be understood, however, as generally approving or encouraging the use by the prosecution of such vague terms as “the profile.”   Assuming arguendo the burden had shifted to him to justify his peremptory challenges, more specific and exact terms are required on the record in rationalizing the questioned peremptory challenges.   The failure to do so, in the context of many records on appeal, unnecessarily risks reversal for Wheeler error where the prosecutor bears the burden of such justification.

21.   Unemployment ranges in scope from temporary to chronic.   It is not a condition tied to or distinguishing any particular race, religion, or ethnic group.  (Cf. People v. Stankewitz (1990) 51 Cal.3d 72, 105, 270 Cal.Rptr. 817, 793 P.2d 23.)   All are subject to its effects.   No California court has adopted the concurring opinion's position that unemployed persons constitute, for that reason, a cognizable group for purposes of triggering a Wheeler analysis of peremptory challenges.The concurring opinion cites with approval this court's opinion (Div. Two) in People v. Estrada (1979) 93 Cal.App.3d 76, 155 Cal.Rptr. 731 (hg. den. July 12, 1979).  (Conc. opn., pp. 732–733.)Presiding Justice Taylor there rejected the contentions that “ ‘young adults,’ ” the “ ‘less-educated,’ ” “ ‘blue collar workers,’ ” and “ ‘households with family incomes less than $15,000’ ” were cognizable groups for purposes of impartial grand jury selection.  (People v. Estrada, supra, 93 Cal.App.3d at pp. 90–93, 155 Cal.Rptr. 731;  accord People v. Johnson, supra, 47 Cal.3d at p. 1214, 255 Cal.Rptr. 569, 767 P.2d 1047 [“[P]ersons with low incomes do not constitute a cognizable class.  (People v. Estrada․)”].)In discussing the cognizability of a group for such purposes, Estrada observed, inter alia:  No evidence existed of group cohesion of attitude or ideas of the “ ‘less-educated’ ” precluding their adequate jury representation if excluded therefrom;  the “ ‘low income[ ]’ ” group possessed no limiting characteristic, factor, or composition not arbitrarily shifting from day to day;  a class of “ ‘blue collar workers' ” was too vague and ambiguous;  and no substantial evidence of record supported the contention “ ‘young adult[s]’ ” possessed a difference in attitude which would prejudice defendant if not represented on the jury.   (Ibid.)Purporting to extol the virtue of a “reliable rule of law” (conc. opn., p. 729), the concurring opinion would produce a totally opposite result, of the type rejected by Estrada, in establishing a vague and ambiguous cognizable group for purposes of Wheeler analysis:  those unemployed “for a long period of time” (conc. opn, p. 731).   We are left to speculate as to the length of this unemployment.   Is it six months?   Is it five years?   Is it dependent on the work experience and age of the prospective juror?Of equal importance is the question of whether substantial evidence supports the conclusion that all persons unemployed for this undefined “long period” have some cohesion of attitudes or ideas not adequately represented on a jury if such group is excluded.   Paraphrasing Presiding Justice Taylor in Estrada, “What attitudes, types of ideas and particular experiences would lead a [long-term unemployed person] to perceive the evidence of the defendant's guilt differently than [an employed person or a short-term unemployed person]?”  (93 Cal.App.3d at p. 92, 155 Cal.Rptr. 731.)None are disclosed on this record, and they cannot be established through sheer judicial speculation.

22.   Compare People v. Gonzalez (1989) 211 Cal.App.3d 1186, 1193, 259 Cal.Rptr. 870 where relying on Wheeler, supra, the court wrote:  “If a single peremptory challenge of a prospective juror in the subject cognizable group is not justified, the presumption of systematic exclusion is not rebutted․”  We believe the analysis of Harvey, supra, is apposite to the case at bench, since our independent review of the record fully supports grounds totally independent of group bias for the prosecutor's peremptory challenges here questioned, justifying the court's implied finding no prima facie case of challenge for group bias had been established.   The Gonzalez court found the record it reviewed insufficient to support such independent grounds for a peremptory challenge;  and thus, disregarded the trial court's express statement on considering a Wheeler motion that it could not “ ‘make a determination at this point that they [Hispanics] are being systematically excluded, and [that it was] not going to make any finding at this particular point.’ ” (211 Cal.App.3d at p. 1196, 259 Cal.Rptr. 870.)

1.   People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.

2.   For one thing, trial counsel do not ask themselves whether the judge is requiring or just permitting a response to an adversary's motion;  they invariably respond.   Furthermore, there is no meaningful difference between an attorney's explanation of his challenges and his response to a Wheeler motion.   The most effective way of responding to a Wheeler motion is by explaining the challenges in question.

3.   The statement in McCaskey that “A reviewing court must look carefully at the circumstances faced by the trial court whenever it is asked to decide whether the trial court intended to make an implied finding that a prima facie case was established under Wheeler ”  (207 Cal.App.3d at p. 257, 254 Cal.Rptr. 742), appears to be dictum, because the trial court in McCaskey “expressly found that no prima facie showing had been made.”  (Id., at p. 256, 254 Cal.Rptr. 742, italics in original.)   Moreover, the court that issued McCaskey subsequently distinguished that case from implied findings cases on the ground that an express finding had been made.  (People v. Gonzalez, supra, 211 Cal.App.3d 1186, 1197, 259 Cal.Rptr. 870.)

4.   In this connection, I think it unfair for the majority to characterize defense counsel as “baiting” the judge by asking him whether his request for a response from the district attorney constituted a finding of a prima facie case.  (Maj. opn. at p. 722.)   If in response to this entirely legitimate question the trial judge had stated his finding forthrightly, as the Supreme Court has repeatedly urged (People v. Snow, supra, 44 Cal.3d 216, 222, 242 Cal.Rptr. 477, 746 P.2d 452) this would be a far simpler case.

5.   The majority makes much of the facts that “the percentage of blacks serving on appellant's jury exceeding that of their representation on the venire panel as a whole” (Maj. opn. at p. 717);  that the percentage of blacks on the jury (17%) exceeded that of blacks on the venire (14%);  and that “[t]he vast majority (75 percent) of the persons challenged by the prosecutor were not black.”  (Maj. opn. at p. 717.)   While statistics such as these may sometimes be relevant to show group bias (Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748), they can easily be misused and are not controlling.  (People v. Allen (1989) 212 Cal.App.3d 306, 317, 260 Cal.Rptr. 463, quoting People v. Chambie (1987) 189 Cal.App.3d 149, 157, 234 Cal.Rptr. 308.)   Such numbers are least relevant when used, as my colleagues employ them, to show the absence of group discrimination.   As one court has pointed out, “a prima facie showing may be made even though a member of the cognizable group remains on the jury.”  (People v. Granillo (1987) 197 Cal.App.3d 110, 121, 242 Cal.Rptr. 639.)   Moreover, “[i]f a single peremptory challenge of a prospective juror in the subject cognizable group is not justified, the presumption of systematic exclusion is not rebutted.   At that point, the Supreme Court intended that the jury panel be discharged.”  (People v. Gonzalez, supra, 211 Cal.App.3d at p. 1193, 259 Cal.Rptr. 870, italics added.)

6.   My use of the word “unemployment” throughout this opinion refers to the lack of gainful employment outside the home.   It is, of course, completely unrealistic to think that any responsible parent, least of all a single parent, can be truly unemployed.

7.   The total unemployment rate in California in 1989 was 5.1 percent.   White unemployment that year was 4.8 percent;  nonwhite unemployment was 6.7 percent;  hispanic unemployment was 7.6 percent;  and black unemployment was 10.1 percent.  (Calif. Employment Development Dept., Labor Market Conditions in California (June 1, 1990) p. 8, Fig. 7B.)

8.   In 1989, 59.3 percent of all recipients of federal Aid to Families with Dependent Children (AFDC) benefits in Alameda County were black (Calif. Dept. Soc Serv., Statistical Service Bureau, AFDC 350 Report (1990)), although according to the last census blacks comprise only 18.4 percent of the population of that county.   Because black residents of Alameda County are concentrated in Oakland, the percentage recipients of AFDC benefits in that city who are black is certainly much higher.

PETERSON, Associate Justice.

SMITH, J., concurs.

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