PEOPLE v. WASHINGTON (1987)

Defendant Curtis Eugene Washington appeals his jury-tried conviction of second degree murder.¹  (Pen.Code, § 187.)   The jury found Washington used a deadly weapon.  (Pen.Code, § 12022, subd. (b).)  Following a brief trial by the court, the court found Washington suffered a prior felony conviction.   Washington was sentenced to prison for the term of fifteen years to life, plus a one-year enhancement for the weapon use allegation.

Washington appeals contending the prosecutor improperly exercised peremptory challenges to exclude prospective jurors solely on racial grounds.   For reasons discussed below, we conclude the trial court erred in finding the jurors were not excluded solely on the basis of race and reverse the judgment.

FACTS

Washington does not challenge the sufficiency of the evidence to support the judgment convicting him of the second degree murder of James Thompson.   In brief, the facts adduced at trial showed Thompson, the victim herein, and Washington were involved in an altercation in which Thompson stabbed Washington in the stomach.   Washington refused to testify against Thompson.   Although criminal charges filed against Thompson for the stabbing were dismissed, Thompson's parole was revoked and he was sent to prison for one year.   Upon Thompson's release from prison in 1984 Washington confronted Thompson.   A fight resulted and Washington stabbed Thompson with a letter opener killing him.

Washington is a black man and Thompson was Puerto Rican.   Of the first panel of prospective jurors, three of the jurors were black.   After court and counsel had completed voir dire of the prospective jurors from this panel, the prosecution exercised four peremptory challenges—three of which resulted in removal of the only three black prospective jurors on the panel.²  After the third black prospective juror was removed by the prosecution's exercise of peremptory challenge, Washington made a Wheeler ³ motion contending the prosecution was using her peremptory challenges to strike jurors on the ground of group bias (race) only.   Specifically, defense counsel argued:

“․ The defendant is black, ․ three potential jurors that the People have excused, three of them have been black.   Based on the information that I think we got on voir dire, I do not see any obvious reason for I think excusing them.   There's no expression of bias or interest or motive, and I think that it appears to me that all three of them being black, the defendant being black, there's a Wheeler violation here.”

In response to the Wheeler motion the prosecutor offered to explain her reason for the peremptory challenge.   The court stated, “I think you better.”

With respect to Mrs. Edwards, the prosecutor explained Mrs. Edwards' children were the same age as defendant and Mrs. Edwards was not sure whether the drunk driving case she had just served on as a juror was a criminal case.   The prosecutor further explained that with reference to the presumption of innocence in a criminal case, Mrs. Edwards indicated “I know he's innocent.”   On further voir dire by the prosecutor, Mrs. Edwards stated she wanted to find the person innocent.   The prosecutor opined “[this] definitely showed a propensity to lean toward the defense before any facts were before her.”

With regard to prospective juror Mr. Maxwell, the prosecutor explained a primary purpose in voir dire is to look for decision making jurors.   Mr. Maxwell was unemployed, unmarried, lived at home with his parents and had never served on a jury.

“When asked by [defense counsel] if he's ever made any big decisions in his life he said ․ ‘I've never been called upon to make any big decisions.’   When asked about his concept if he's ever imagined a situation regarding self-defense, he crossed his eyes, grinned and said, ‘only in my dreams.’ ”  4

The prosecutor concluded from these statements “․ he's not the kind of person that should be making a decision on a case this serious.   I don't think he has decision-making ability.”

Defense counsel took issue, inter alia, with the prosecutor's reasons for removing Mrs. Edwards and Mr. Maxwell as prospective jurors.   The court indicated that Mrs. Edwards' inclination to presume innocence was the reason the prosecution's earlier challenge for cause was denied but nevertheless reasoned it was a “reasonable explanation for the exercise of the peremptory challenge.”

“․ [T]here's been sufficient showing of ․ reasonable and articulable grounds for the exercise of a peremptory, and there's been no sufficient showing of systematic excuse of these folks just on the basis of race.  [¶] For what it's worth, for the evidence of anybody reviewing these proceedings, my observation of Mr. Maxwell is that he's extremely difficult to hear.   I had great difficulty hearing him.   Very soft spoken.   And I—I wonder whether he would have really given us the benefit of his individual judgment and opinion in any cross section deliberation.   I had some real concern in my mind in that regard.”

Washington was ultimately tried by an all-white jury.

DISCUSSION

 In Wheeler, the Supreme Court addressed the People's right to exercise peremptory challenges in conjunction with a defendant's constitutional right to a jury drawn from a representative cross-section of the community.   The court held the usual freedom associated with the use of peremptory challenges is tempered by the right to an impartial jury as “guaranteed equally and independently by the Sixth Amendment to the federal Constitution and by article I, section 16 of the California Constitution.”  (Wheeler, supra, 22 Cal.3d at p. 272, 148 Cal.Rptr. 890, 583 P.2d 748.)   The specific issue in Wheeler was whether the prosecutor could use his peremptory challenges to exclude all blacks from a jury trying two black defendants charged with murdering a white victim.   The prosecutor had peremptorily challenged every black person called from the venire, without any effort to challenge them for cause and with little or no questioning that could have disclosed any biases.   The Supreme Court ruled the use of peremptory challenges to remove prospective black jurors on the sole ground of “group association” violated the defendant's right to a jury drawn from a representative cross-section of the community.   While this constitutional right does not grant a defendant a right to a jury that mirrors the demographic composition of the population, the court held it does entitle him to “a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits.”  (Id. at p. 277, 148 Cal.Rptr. 890, 583 P.2d 748.)

The Supreme Court further noted,

“[T]hat in a predictable percentage of cases the result will be a wholly unbalanced jury, usually composed exclusively of members of the majority group.   This is inevitable, the price we must pay for juries of a workable size.   It is no less inevitable, however, that in all other instances—as in the case at bar—the representative nature of the pool or venire will be reflected at least in some degree in the 12 persons called at random to the jury box.   It is that degree of representativeness—whatever it may prove to be—that we can and must preserve as essential to trial by an impartial jury.   Certainly the prospective jurors are then subject to challenges for cause and peremptory challenges on grounds of specific bias, but for the reasons stated above we cannot countenance the decimation of the surviving jurors by peremptory challenges on the ground of group bias alone.”  (Id. at pp. 277–278, 148 Cal.Rptr. 890, 583 P.2d 748.)

The Supreme Court also acknowledged that in any given instance the presumption must be that a party exercising a peremptory challenge is doing so on a constitutionally permissible ground.   Noting, however, that this presumption is rebuttable, the court delineated the three means by which a prima facie case may be established for rebutting this presumption if a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone.

“First, ․ he should make as complete a record of the circumstances as is feasible.   Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.   Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.”  (Id. at p. 280, fn. omitted, 148 Cal.Rptr. 890, 583 P.2d 748.)

 If the trial court finds that a prima facie case has been made, the burden then shifts to the other party to show that the peremptory challenges in question were not predicated on group bias alone.

“․ The showing need not rise to the level of a challenge for cause.   But to sustain his burden of justification, the allegedly offending party must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses—i.e., for reasons of specific bias as defined herein․  And again we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.”  (Id. at pp. 281–282, 148 Cal.Rptr. 890, 583 P.2d 748.)

The principles of accommodation between the People's right to exercise peremptory challenges and a defendant's constitutional right to a jury drawn from a representative cross-section of the community addressed in Wheeler were reaffirmed in People v. Hall (1983) 35 Cal.3d 161, 197 Cal.Rptr. 71, 672 P.2d 854, and more recently in People v. Trevino (1985) 39 Cal.3d 667, 217 Cal.Rptr. 652, 704 P.2d 719.   In these later decisions the analysis set forth in Wheeler for testing the constitutionality of the prosecutor's use of peremptory challenges was applied.

In Hall, the prosecutor used five of eight peremptory challenges to remove black jurors.   There were no black jurors remaining on the jury that ultimately tried and convicted the black defendant of assault by means of force likely to cause great bodily injury and false imprisonment.   With these facts the defendant established a prima facie case of excluding jurors on the basis of group bias.   One of the reasons given by the prosecutor for excluding one of the black jurors was she had a son who was the same age as the defendant.   However, the record showed three other non-black female jurors who were not challenged, had grown children, among them at least five of whom were sons, and two of whom were about the same age as the defendant.   The Supreme Court wrote:

“Such disparate treatment is strongly suggestive of bias, and could in itself have warranted the conclusion that the prosecutor was exercising peremptory challenges for impermissible reasons.   Moreover, and particularly in that light, the explanations offered by the prosecutor for challenging certain of the other black jurors demanded further inquiry on the part of the trial court.   Yet the trial court apparently considered itself bound to accept all of the prosecutor's explanations at face value, expressing the view that group bias is shown only when a prosecutor declares an intent to exclude all members of an ethnic group from the jury.   Such abdication is inconsistent with the court's obligations under Wheeler, and on authority of that case must be held to constitute error requiring reversal.”  (Id., 35 Cal.3d at pp. 168–169, 197 Cal.Rptr. 71, 672 P.2d 854.)

In sum, the conviction in Hall was reversed because the trial court failed to follow the substance of the obligations imposed by Wheeler to determine the genuineness of the explanations given by the prosecutor for exercising the peremptory challenges in face of a prima facie showing the challenges were made on the basis of group bias.   The trial court failed to engage in a “sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observation of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily, ․”  (Id. at pp. 167–168, 197 Cal.Rptr. 71, 672 P.2d 854.)

In People v. Trevino, supra, 39 Cal.3d 667, 217 Cal.Rptr. 652, 704 P.2d 719, the Supreme Court also found the prosecutor failed to sustain the burden of showing that certain jurors were not peremptorily excluded as a result of group bias and reversed the defendant's conviction for murder.   The defendant, Trevino, appealed his conviction on the basis the prosecutor's use of peremptory challenges to exclude Spanish surnamed jurors violated his constitutional right to trial by a jury drawn from a representative cross-section of the community.   Utilizing the two-prong analysis established in Wheeler, the court found the prosecutor failed to satisfactorily explain the ground of the challenge was a specific bias on the part of the individual jurors.

The trial court did call upon the prosecutor to justify his use of peremptories against the six Spanish surnamed jurors and then denied the Wheeler motion stating:  “․ these explanations seem to fall within the reasonable use of the peremptory challenges for bias or implied bias that counsel might want to use.   For that reason the motion would be denied.”   (Id. at pp. 689–690, 217 Cal.Rptr. 652, 704 P.2d 719.)   The Supreme Court, however, observed:

“It appears that the trial court was confusing, ‘specific reason’ with ‘specific bias.’   In Wheeler, we defined ‘specific bias' as ‘a bias relating to the particular case on trial or the parties or witnesses thereto.’  (Id. [22 Cal.3d] at p. 276 [148 Cal.Rptr. 890, 583 P.2d 748].)  A review of the record demonstrates that the prosecutor did not, in fact, satisfy his burden of showing that he excluded the Spanish surnamed jurors on the grounds of specific, not group bias.”  (Id. at p. 690, 217 Cal.Rptr. 652, 704 P.2d 719.)

Specifically, the record revealed a Hall-type of situation in that the prosecutor engaged in disparate treatment of the members of the excluded group and the unchallenged jurors which treatment was condemned in Hall and deemed strong evidence of exclusion on the basis of group bias.   The strongest factor the prosecutor relied on in explaining his use of peremptory challenges against the Spanish surnamed jurors was the jurors' ages (youth).   The prosecutor explained the jurors were close to the same age as the defendant and was concerned they lacked the maturity necessary to decide a murder case.   The record, however, revealed jurors of the unchallenged group were also young.   Similarly, some of the jurors of that group were female, but the prosecutor indicated he excluded some of the Spanish surnamed jurors because they were female.   The Supreme Court found the prosecutor failed to adequately explain such disparate treatment.

In the case before us, it is not contended Washington failed to establish a prima facie case of group bias by demonstrating all three black prospective jurors were removed by peremptory challenges and that none remained on the jury.  (Cf. People v. Rousseau (1982) 129 Cal.App.3d 526, 536–537, 179 Cal.Rptr. 892.)   Rather, the focus of Washington's arguments is the prosecutor failed to provide legally sufficient reasons for utilizing three of its four peremptory challenges to excuse all the blacks.   Washington argues, in the language of Wheeler, the trial court failed to “distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.”  (Id., 22 Cal.3d at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748.)

 Preliminarily, we are obliged to determine the appropriate standard for reviewing a trial court's determination the prosecutor's peremptory challenges were exercised on the basis of specific bias and not solely upon the basis of group bias.   Several recent appellate court cases have considered challenges to trial court denials of Wheeler motions on grounds the trial court either misunderstood its Wheeler -imposed obligations or there was disparate treatment evidencing disingenuousness on the part of the prosecution.   (See People v. Randle (1982) 130 Cal.App.3d 286, 181 Cal.Rptr. 745;  People v. Clay (1984) 153 Cal.App.3d 433, 200 Cal.Rptr. 269;  People v. Ortega (1984) 156 Cal.App.3d 63, 202 Cal.Rptr. 657, and People v. Brewster (1986) 184 Cal.App.3d 921, 229 Cal.Rptr. 352.)   In these cases the appellate courts independently reviewed the record for evidence supporting the prosecutor's justifications for exercising peremptory challenges on the basis of specific bias and, finding sufficient evidence, expressly or implicitly held the trial court did not abuse its discretion in denying the Wheeler motions.   Language in Trevino suggesting this standard of review is appropriate is found in footnote 21 wherein the court states in part:

“․ Though we do ‘rely on the good judgment of the trial courts' in reviewing Wheeler rulings, ․ we must do so in the ‘specific bias' context envisaged by Wheeler․  Only then can we assure that a defendant is afforded the full complement of cross-sectional rights.”  (People v. Trevino, supra, 39 Cal.3d at p. 689, fn. 21, 217 Cal.Rptr. 652, 704 P.2d 719.)

We now address Washington's claim the prosecutor failed to adequately justify its peremptory challenges on the basis of specific bias.

Washington urges evidence supporting his claim consists of the fact he obtained change of venue from the North County Superior Court to the downtown Superior Court in order to assure a jury drawn from a representative cross-section for the community (which effort the prosecutor “vigorously opposed” and, upon transfer of the matter, the prosecutor peremptorily excluded the only three blacks called to the jury box.)   Washington further claims the fact prospective juror Mr. Maxwell was a “quiet, soft spoken young man afforded no justification for his excusal.”   Washington also challenges the prosecutor's perception of prospective juror Mrs. Edwards as pro-defense because of her expressed understanding a defendant in criminal proceedings is presumed innocent until proven guilty.   Washington speculates that with Mrs. Edwards' prior voting record as a juror “․ one might expect the defense, not the prosecutor, to peremptorily challenge her.” ⁵  Washington also cites as a sham excuse, the prosecutor's peremptory challenge of Mrs. Edwards on the basis Mrs. Edwards' children were close in age to defendant.   Two other (presumably non-black) jurors who also had children of Washington's age were not peremptorily challenged by the prosecutor.⁶

 However, since a Wheeler violation as to any of the questioned peremptory challenges is all that is necessary to conclude the composition of the jury violates the representative cross-section and defendant's constitutional right to trial by jury, (Wheeler, supra, 22 Cal.3d at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748), a review of the challenge to Mr. Maxwell supports our determination that he was excused not because of a specific bias but because of group association.   Hence, we need not discuss further the two other peremptory challenges.

The People's voir dire of Mr. Maxwell was desultory at best.⁷  The People argued he was excused because he was not a decision maker, he was unmarried, and spoke softly.⁸  However, as in People v. Fuller (1982) 136 Cal.App.3d 403, 420, 186 Cal.Rptr. 283, the “[p]robing questions, to elicit specific bias, were not asked” of Mr. Maxwell.   The trial court, in summarizing its finding of justification of a valid challenge by the People, decided it also felt Mr. Maxwell would not be able to speak up to the other jurors.   This finding was made despite Mr. Maxwell's specific answers to the contrary when questioned by the defense.   When asked if he might be swayed by and tend to rely on older juror's life experiences when reaching his verdict his response was an unequivocal “No.”   He also said he could stand up to the other jurors.   These responses are especially significant and have the ring of truth in light of his other answers regarding the fact his life experiences did not encompass defending himself except in his dreams.

The court in determining specific bias existed did not carry out its mandated duty when it concluded the reasons of perceived inability to make a decision, being soft-spoken and unmarried are equivalent to the “specific bias” required by Wheeler.   The prosecutor's “specific reasons” are not the equivalent of “specific bias” on the part of the individual juror as required by the law.   In so finding the trial court did not carry out its duty as mandated by Wheeler.

Our analysis leads us to conclude as our Supreme Court recently did in People v. Turner (1986) 42 Cal.3d 711, 722, 230 Cal.Rptr. 565, 726 P.2d 102, that the answers provided by Mr. Maxwell failed to reveal a “specific bias” or that he was “reasonably likely” to have such a bias relevant to this case or its parties or witnesses as required by Wheeler and its progeny.   The subjective conclusory nuances the prosecutor chose to apply to Mr. Maxwell's answers, i.e., he was soft-spoken and questions had to be repeated, he was unmarried, and he didn't appear to be a decision maker, and the trial judge's interpretation of these reasons as being the equivalent of specific bias is neither supported by the record nor the law (People v. Trevino, supra, 39 Cal.3d at p. 692, fn. 25, 217 Cal.Rptr. 652, 704 P.2d 719) especially when weighed against the constitutional right to a fair jury trial:

“To suggest, ․ that either body language ․ or a conclusory notion [emphasis added] that a juror might not form his own opinion ․ rises to the level of specific bias in the Wheeler context, is to reduce the constitutional guarantee to meaningless superficialities.”  (Ibid.)

 We find support for our position in our Supreme Court's most recent holding on this issue and the United States Supreme Court's holding in Batson v. Kentucky (1986) 476 U.S. 79, –––– – ––––, 106 S.Ct. 1712, 1723–24, 90 L.Ed.2d 69, 88–89, reversing Swain v. Alabama (1965) 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.   The purpose of the peremptory challenge (excusing a juror without having to give a reason) must be viewed along with the constitutional guarantee of a right to trial by a jury drawn from a representative cross-section of the community guaranteed by article 1, section 16 of the California Constitution, and the equal protection clause of the Fourteenth Amendment guaranteed by the United States Constitution.   If the exercise of peremptory challenges in a particular case fails to pass constitutional muster it is grounds for reversal.  (People v. Turner, supra, 42 Cal.3d at p. 717, 230 Cal.Rptr. 656, 726 P.2d 102.)

 The burden of justification as to the questioned challenge to Mr. Maxwell has not been sustained.   The People by exercise of its peremptory challenges violated Washington's right to obtain a jury drawn from a representative cross-section of the community.   This violation is prejudicial per se.  (People v. Turner, supra, 42 Cal.3d at p. 728, 230 Cal.Rptr. 656, 726 P.2d 102.)

DISPOSITION

Judgment reversed.

I respectfully dissent.

The disparate treatment found in Hall which Washington claims occurred here with respect to Mrs. Edwards is not born out by the record.   Although Mrs. Edwards had a son close in age to Washington and although the prosecutor excluded her and not the other presumably non-black prospective jurors who also had sons close in age to Washington, this reason was not the sole articulated basis for excluding Mrs. Edwards.   The prosecutor explained Mrs. Edwards seemed pro-defense.   Mrs. Edwards did not simply explain she believed a defendant is presumed innocent until proven guilty.   When asked if “[a]s the trial begins, is there a part of [her] that to tell the truth [she] really hope [s] deep down [defendant] is innocent?”   Mrs. Edwards said “Yes.”   Her answers provided sufficient basis for concluding she had a specific bias towards the defense, and thus constituted an adequate reason for peremptorily challenging and excluding her from the jury panel.

I also disagree with Washington's assessment the reasons given by the prosecutor for excluding prospective juror Mr. Maxwell were inadequate.   Based on Mr. Maxwell's demeanor and the absence of any major decision making circumstances in his life, the prosecutor could reasonably suspect Mr. Maxwell might have had difficulty deciding the case or making known his opinions, especially if those opinions were in the minority.   Particularly significant is Mr. Maxwell's statement he would not feel comfortable in Mr. Washington's place if a juror of his frame of mind had to decide the case.   Upon further questioning Mr. Maxwell explained he would be “scared” if he was the defendant.   Similarly, in People v. Ortega (1984) 156 Cal.App.3d 63, 202 Cal.Rptr. 657, the court of appeal found the prosecutor had bona fide reasons for excusing a juror “because when she was asked how she felt about sitting in judgment on someone else, she replied, ‘I don't know.   Would be kind of hard.’ ”  (Id. at p. 71, 202 Cal.Rptr. 657.)   The court observed, “Since a juror's function is to sit in judgment on the defendant, it is reasonable for an attorney to exercise a peremptory challenge on a person who has doubts about his or her ability to perform that function.   The exercise of such a peremptory challenge is unrelated to racial consideration.”  (Ibid.)

I would further find there is no basis for concluding the trial court here misunderstood or abdicated its Wheeler obligations to “reasonably and sincerely” evaluate the prosecutor's explanations for peremptorily challenging these jurors.   Unlike the trial court in Hall, the trial court here did not merely give the prosecutor's justifications a rubber stamp of approval.   There was a discussion of the peremptory challenge of Mrs. Edwards on the basis of her apparent pro-defense inclinations and the court also voiced its own concerns regarding Mr. Maxwell's ability to function as a juror.

The record before us shows the trial court followed the procedures set forth in Wheeler.   The record further shows the court followed the substance of Wheeler.  “Wheeler does not forbid the use of peremptory challenges to eliminate members of cognizable groups for reasons other than their membership in the cognizable group.  [Citations.]  So long as a peremptory challenge is exercised for some reason other than a wish to exclude members of a cognizable group, the jury remains constitutionally ‘representative’ and no defect exists which Wheeler would proscribe.”  (People v. Randle (1982) 130 Cal.App.3d 286, 295, 181 Cal.Rptr. 745.)   I believe substantial evidence supports the trial court's finding the prosecutor excluded Mr. Maxwell and Mrs. Edwards on the basis of specific bias and not on the basis of group bias alone and the trial court did not, therefore, abuse its discretion in denying Washington's Wheeler motion.

FOOTNOTES

FOOTNOTE.  

1.   Defendant Curtis Eugene Washington was originally charged with murder in the Information under the name of “Curtis Johnson, aka Curtis Eugene Washington.”   Before trial, defense counsel informed the court defendant's true name is Curtis Eugene Washington.   All subsequent documents filed in this matter reflect defendant's true name.   Pursuant to Penal Code section 953, this opinion similarly refers to defendant by his true name.

2.   In this appeal Washington does not challenge the exercise of the peremptory challenge to one of those prospective jurors, Mrs. Nash.   He does, however, argue prospective jurors, Mr. Maxwell and Mrs. Edwards, were excluded by the prosecution solely on the basis of race.One black person was in the second group of jurors called, but that person was never summoned as a prospective juror.

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

4.   Mr. Maxwell answered “No” to the question “Have you been called upon ․ to make a decision about something that was very important, ․ [¶] Have you been confronted in a situation or with a situation where you felt you had to use some type self-defense [sic]?  A. Only in my dreams.”

5.   The People challenged Mrs. Edwards, a black juror, because her son's age was close to that of Washington and she was perceived to have pro-defense leanings.   Mrs. Edwards had that day completed another criminal jury trial and that defendant was found guilty.   If anything, but for the manner in which she was questioned it appeared she was a juror the prosecution would normally select.  (Cf. People v. Turner (1986) 42 Cal.3d 711, 726, 230 Cal.Rptr. 656, 726 P.2d 102.)   Mrs. Nash was challenged for a host of reasons which were not challenged in this appeal.

6.   One of these jurors was Spanish surnamed.   The victim was of Puerto Rican descent.

7.   Compare to People v. Brewster, supra, 184 Cal.App.3d at p. 925, 229 Cal.Rptr. 352, wherein the court noted each prospective juror was asked similar questions and examined for a similar length of time.

8.   Compare voir dire of Mr. Northcote one of the final 12.

RIGGS, Associate Justice.** FN** Assigned by the Chairperson of the Judicial Council.

WORK, J., concurs.