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PEOPLE v. LUCERO

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

The PEOPLE, Plaintiff and Respondent, v. Jerry LUCERO, Defendant and Appellant.

Cr. 34938.

Decided: November 26, 1979

Norman W. De Carteret, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and John A. Saurenman, Deputy Attys. Gen., for plaintiff and respondent.

In count I of an information, defendant was charged with committing the felony offense of attempted robbery in violation of Penal Code sections 664 and 211.   It was also charged in count I that, in the commission of the offense, defendant personally used a firearm, namely, a handgun, within the meaning of Penal Code section 12022.5.   In count II, defendant was charged with committing the felony offense of burglary in violation of Penal Code section 459.

At the beginning of the trial, count II was dismissed in the interest of justice on the People's motion.   Trial was by jury.   The jury found defendant guilty as charged in count I and also found the firearm use allegation to be true.   Proceedings were suspended and defendant was placed on probation for a period of five years subject to specified terms and conditions.   Defendant has appealed from the judgment.

Defendant makes two contentions on appeal.   First, defendant contends he was denied his right to trial by jury because the prosecutor, by peremptory challenges, excused from the jury all persons who spoke Spanish on the ground that they would not accept an interpreter's testimony translating Spanish into English and English into Spanish.   Second, defendant asserts that the evidence was insufficient to sustain his conviction.   We consider first the contention relative to the makeup of the jury.

I

The Prosecutor's Exercise of Peremptory Challenges To Excuse All Spanish-Speaking Persons from the Jury

At the beginning of the jury selection process, it was indicated to the prospective jurors that witnesses would be called who spoke only Spanish and that an interpreter would be sworn to translate Spanish into English and English into Spanish.   The court announced that it recognized that this would present a problem for members of a jury who were fluent in Spanish because they might quarrel with the interpretations by the interpreter.   The court, however, stated to all members of the panel of prospective jurors that it would be their obligation to accept the interpretation from the official interpreter witness.   The trial judge indicated his opinion that he considered it difficult for jurors who were fluent in Spanish to accept the interpretations of the interpreter.

The prosecutor then made a motion to challenge for cause all members of the jury panel who indicated that they spoke and understood Spanish fluently, based upon the court's statement that such persons would be required to perform an impossible mental gymnastic in order to get the same evidence as the other members of the jury would get through the use of the Spanish interpreter.   The prosecutor's challenge for cause was denied.   The prosecutor then indicated to the court that he intended to exclude by peremptory challenges “all the Spanish-speaking people.”

On voir dire questioning of prospective jurors, the prosecutor proceeded to determine whether each prospective juror spoke Spanish.   Through the exercise of peremptory challenges, the prosecutor excused all of the Spanish-speaking members of the panel which amounted to eight or nine in number.   Defendant made a timely objection and motion for mistrial directed at this use by the prosecutor of peremptory challenges.   The objection was overruled and the motion was denied by the trial court.

 Defendant asserts that the prosecutor's exercise of peremptory challenges to excuse from the jury all members of the panel who spoke Spanish constituted a denial of his right to trial by a jury drawn from a representative cross-section of the community and was in violation of provisions of both the federal and state Constitutions.   We agree.

The theory of the prosecution that this was an acceptable exercise of peremptory challenges because Spanish-speaking members of the jury would tend to use their own translation into English of testimony given in Spanish rather than following the court's instruction that they were required to accept as evidence the Spanish and English interpretations given by the interpreter is clearly untenable and erroneous.   If this theory of the prosecution were to be accepted, we would be required to hold that it is impossible to ever obtain an impartial jury because of the impossibility of requiring jurors to put aside their own knowledge and follow a trial court's instructions to do so.   There is no reason to believe that Spanish-speaking persons on a jury would have any more difficulty in following the law that they must accept the testimony of the interpreter than jurors generally who are told that they must decide the case upon the evidence presented rather than using any knowledge or information of their own.

It is our view that the exercise of peremptory challenges by the prosecutor in the case before us resulted in excluding from service on the jury a large and identifiable segment of the community.   Such exclusion constituted prejudicial error.

In Peters v. Kiff (1972) 407 U.S. 493, 503–504, 92 S.Ct. 2163, 2169, 33 L.Ed.2d 83, the United States Supreme Court declared:  “When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.   It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.”

In Adams v. Superior Court (1974) 12 Cal.3d 55, 59, 115 Cal.Rptr. 247, 250, 524 P.2d 375, 378, the California high court points out that the United States Supreme Court, in Williams v. Florida (1970) 399 U.S. 78, 90 S.Ct. 1139, 25 L.Ed.2d 406, “explained that the jury impartiality provisions of the Sixth Amendment to the federal Constitution require the jury selection process to provide a ‘fair possibility for obtaining a representative cross-section of the community.’   The process of selection must be structured to insure that cognizable classes of citizens are not systematically excluded from jury service.”   Although Adams points out that selection of a jury from a cross-section of the community is intended to insure that there shall be no “systematic and intentional exclusion of economic, sexual, social, religious, racial, political, or geographical groups” (Adams, supra, 12 Cal.3d 55, 60, 115 Cal.Rptr. 247, 250, 524 P.2d 375, 378), we are satisfied that Adams did not intend to make this group listing as all-inclusive.

The exclusion of Spanish-speaking members of the jury for the reasons set forth by the prosecutor to the trial court below constitutes “group bias” just as surely as if the theory of the prosecutor had been to exclude all Spanish-speaking members from the jury because of their racial or ethnic makeup such as was found in People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 and People v. Johnson (1978) 22 Cal.3d 296, 148 Cal.Rptr. 915, 583 P.2d 774.

In Wheeler, the prosecution, by peremptory challenges, excused all black members of the jury in a case in which defendants, two black men, were then convicted by an all-white jury of murdering a white grocery store owner in the course of a robbery.   In striking down such a procedure, the Wheeler court made this cogent observation:  “We conclude that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.   This does not mean that the members of such a group are immune from peremptory challenges:  individual members thereof may still be struck on grounds of specific bias, as defined herein.   Nor does it mean that a party will be entitled to petit jury that proportionately represents every group in the community:  we adhere to the long-settled rule that no litigant has the right to a jury that mirrors the demographic composition of the population, or necessarily includes members of his own group, or indeed is composed of any particular individuals.”  (Wheeler, supra, 22 Cal.3d 258, 276–277, 148 Cal.Rptr. 890, 903, 583 P.2d 748, 761, 762.)

Pursuant to Evidence Code sections 452, subdivision (g),1 and 459, we take judicial notice that a substantial percentage of residents located in the southern California area speak Spanish.   In addition, this community contains substantial numbers of other ethnic groups such as Chinese, Korean and Vietnamese—which require the use of interpreters in criminal cases.   Are prosecutors to be allowed to use peremptory challenges to exclude such identifiable segments from a jury simply because interpreters are necessary in such cases?

Although the Wheeler and Johnson courts placed their decisions on article I, section 16, of the California Constitution,2 we consider the exclusion of Spanish-speaking persons from the jury in the case before us as a violation—not only of the provisions of the California Constitution—but a violation of rights guaranteed by the Sixth Amendment of the United States Constitution.3

Although the Wheeler court placed its holding strictly upon California state constitutional grounds, it recognized that such a holding is also required by the Sixth Amendment to the federal Constitution by stating:  “[W]e now make explicit what was implicit in White, and hold that in this state the right to trial by a jury drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendment to the federal Constitution and by article I, section 16, of the California Constitution.” 4  (Wheeler, supra, 22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 899–900, 583 P.2d 748, 758;  fn. omitted.)

The reason the Wheeler court placed its decision upon California state constitutional grounds rather than upon federal constitutional grounds related to the question of whether “this pernicious practice”—of using peremptory challenges to exclude a well-defined segment of the community from the jury—had to be considered as constitutionally viable by reason of the case of Swain v. Alabama (1965) 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.   As Wheeler points out, the nation's high court in Swain rejected a black defendant's claim of a violation of the equal protection clause of the Fourteenth Amendment by the prosecutor's use of peremptory challenges to exclude from the jury all black members summoned on the panel.   The United States Supreme Court in Swain, as did our high court in Wheeler, accepted the premise that there was a presumption of validity to the prosecutor's use of peremptory challenges in any given trial.

In Swain, however, as contrasted with Wheeler, the United States Supreme Court took the view that this presumption of validity “is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.”  (Swain, supra, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759.)   The Wheeler court points out that the Swain court reached its conclusion because of its concern “that under a contrary rule the challenge ‘would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards.   The prosecutor's judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity.’ ”  (Wheeler, supra, 22 Cal.3d 258, 284, 148 Cal.Rptr. 890, 908, 583 P.2d 748, 766–767;  fn. omitted.)

We do not consider that Swain is either compelling or persuasive in terms of requiring a holding by us that the exercise of peremptory challenges in the case at bench did not constitute a violation of the defendant's right to a fair jury trial guaranteed by the Sixth Amendment to the United States Constitution.   The Swain decision is not controlling because it adjudicated the issue involved in terms of whether the prosecutor's practice violated the equal protection clause of the Fourteenth Amendment to the United States Constitution.   The Swain court did not consider at all whether such a practice of the prosecution constituted a violation of a defendant's right to an impartial jury guaranteed by the Sixth Amendment to the United States Constitution.   Even though it is obvious that Swain does not compel a contrary holding to that reached by us in the case at bench, we do not consider Swain to be persuasive with respect to the Sixth Amendment issue.

In Taylor v. Louisiana (1974) 419 U.S. 522, 528, 95 S.Ct. 692, 697, 42 L.Ed.2d 690, decided subsequent to the 1965 decision in Swain v. Alabama, supra, the court remarked:  “The unmistakable import of this Court's opinions, at least since 1940, Smith v. Texas, supra, and not repudiated by intervening decisions, is that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.” 5

The Taylor holding upset a Louisiana state court conviction of a defendant because the Louisiana jury-selection system operated to result in the systematic exclusion of women from serving on trial juries.   The Taylor court held that the “fair-cross-section requirement” was mandated by the Sixth Amendment right to a jury trial and was violated by the systematic exclusion of women from jury service.

 Although Taylor did not involve the exclusion of a representative cross-section of the community through the prosecutor's exercise of peremptory challenges, we hold that the principle of Taylor applies so that a defendant's right to a fair-cross-section jury under the Sixth Amendment to the federal Constitution is violated by the prosecution's exercise of peremptory challenges which clearly effectuates an exclusion from the jury of a representative segment of the community.

 We return to an analysis of Wheeler.   The Wheeler court began with the proposition that, in any trial, there exists a presumption that, in exercising peremptory challenges, the prosecutor is doing so on a constitutionally permissible ground.   The court then sets forth the rule that a defendant may rebut the presumption by establishing that the exercise of peremptory challenges by the prosecutor is designed to excuse jurors on the sole ground of “group bias.”   This rebuttal requires a showing of three matters:  (1) the making of as complete a record of the circumstances as possible;  (2) establishing that the prospective jurors excluded are members of a cognizable group with the meaning of the fair-cross-section constitutional requirement;  and (3) that from all of the circumstances there is a strong likelihood that such persons are being challenged—not because of any specific bias—but because of group association.

We point out that the case at bench is different from Wheeler and Swain but similar to Johnson.   Here, the prosecutor first made a motion to challenge all Spanish-speaking members of the panel for cause, and then, upon the denial of that motion, stated frankly to the trial court that he intended to use his peremptory challenges to exclude such prospective members from the jury.   In Johnson, the prosecutor openly acknowledged that he was deliberately striking all black prospective jurors from the jury on the ground of their race.   The court stated that the prosecutor thus “voluntarily shouldered the burden of justification and we may proceed to appraise his reason.”  (Johnson, supra, 22 Cal.3d 296, 299, 148 Cal.Rptr. 915, 916, 583 P.2d 774, 775.)

The Johnson court held that the reason advanced by the prosecutor was insufficient as a matter of law, and also denigrated “the high purpose of the representative cross-section rule.”  (Id. at p. 300, 148 Cal.Rptr. at p. 917, 583 P.2d at p. 776.)   The Johnson court concluded that the defendant's conviction had to be set aside because of the denial of his right to an impartial jury under the California Constitution.

The reasoning of Wheeler and Johnson is persuasive with respect to the situation presented in the case before us.   We declare that the prosecutor's exercise of peremptory challenges to exclude all Spanish-speaking prospective members from the jury constituted a violation of article I, section 16, of the California Constitution, and, in addition, constituted a violation of the Sixth Amendment to the United States Constitution.

We hold that “[t]he error is prejudicial per se:  ‘The right to a fair and impartial jury is one of the most sacred and important of the guaranties of the Constitution.   Where it has been infringed, no inquiry as to the sufficiency of the evidence to show guilt is indulged and a conviction by a jury so selected must be set aside.’ ”  (Wheeler, supra, 22 Cal.3d 258, 283, 148 Cal.Rptr. 890, 907, 583 P.2d 748, 766;  Johnson, supra, 22 Cal.3d 296, 300, 148 Cal.Rptr. 915, 583 P.2d 774.)

II

The Question of Sufficiency of the Evidence

 The defendant also advances the contention that the evidence is insufficient to sustain his conviction.   The evidence establishes that a group of men were sitting in a house drinking beer when defendant and three companions entered.   Defendant, displaying a gun, demanded beer and money.   A fight ensued, in which defendant's gun was taken from him.   Defendant points out that the evidence presented by the prosecution was not entirely consistent and that the defense evidence established that defendant had not participated in the activities involved.

However, our consideration of all of the evidence presented in the case, including that introduced by the defendant as well as that introduced by the prosecution, leads us to hold that a rational trier of fact could have found that each element of the offense charged against defendant was established by the burden-of-proof standard of proof beyond a reasonable doubt.  (Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.)

In view of the error presented by the trial court's ruling that the prosecutor was permitted to remove, by the exercise of peremptory challenges, all Spanish-speaking members from the jury panel, the judgment must be reversed and the case remanded for a new trial.

The judgment is reversed.

I dissent.

Admittedly, Spanish speaking people may, under some circumstances, be regarded as a “distinct class” within the meaning of the cases discussed in the majority opinion.   However, I cannot agree that, in the case at bench and on the facts as shown by the record, that is a controlling factor.   Clearly, the prosecutor was not using his peremptory challenges in order to secure a biased jury.   Here both the defendant and the victim were Spanish speaking;  apparently, since both the victim and the defendant were residents of the same housing project, there existed no danger of any economic or status bias.   However, I do not read any of the cases cited by the majority as universally requiring that a prosecutor may use peremptory challenges only where he has a suspicion of bias on the part of a prospective juror.   Here the prosecutor explained, on the record, a quite rational reason for his challenges—a reason which the trial judge had said, on the record, was a matter of concern.   To allow a potential dispute in the jury room over the accuracy of an interpretation, or to allow a verdict based on part of the jurors relying on the Spanish testimony and part of the jury relying on the interpretation would destroy the essential element of all jury trials—namely a verdict based on the same evidence.   In this case, I do not think that it is an answer that the trial court could have instructed the jurors to accept, as accurate, the interpretation.   I do not suggest that any of the challenged jurors would not have tried to follow that instruction.   My dissent is based on my belief that that instruction would ask the Spanish speaking jurors to perform an impossible mental task.

I conclude that defendant was given a fair trial, before a jury all of whose members acted on the identical evidence.   He can ask no more.

FOOTNOTES

1.   Evidence Code section 452, subdivision (g), provides for judicial notice of “[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.”   In addition, Evidence Code section 452, subdivision (h), is also applicable.   Subdivision (h) provides for judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to resources of reasonably indisputable accuracy.”

2.   Article I, section 16, of the California Constitution provides, in relevant part, that “[t]rial by jury is an inviolate right and shall be secured to all,  ․ ․ ․”

3.   The Sixth Amendment to the United States Constitution provides, in part relevant for our purposes, that “[i]n all criminal prosecutions, the accused shall enjoy the right to speedy and public trial, by an impartial jury  ․ ․ ․ .”

FN4. The White case referred to is the case of People v. White (1954) 43 Cal.2d 740, 278 P.2d 9..  FN4. The White case referred to is the case of People v. White (1954) 43 Cal.2d 740, 278 P.2d 9.

5.   The Smith v. Texas case referred to is that of Smith v. Texas (1940) 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84.

JEFFERSON, Associate Justice.

SWEARINGER (Assigned by the Chief Justice of California), J., concurs.

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