IN RE: MONTE HANEY on Habeas Corpus. (2026)

I. INTRODUCTION

Monte Haney, currently incarcerated in prison, petitions for a writ of habeas corpus under Penal Code section 1473, subdivision (e) (section 1473(e)), contending his conviction is unlawful under the Racial Justice Act of 2020 (Pen. Code, § 745 et seq.; RJA).¹ He alleges his trial violated the RJA because the prosecutor used peremptory challenges to strike all prospective Black jurors from the jury and a white male juror exhibited racial bias by exclaiming, prior to opening statements, “This guy is going away.” Haney also contends he is entitled under the RJA to discovery of his jury voir dire transcripts and certain statistical evidence regarding potential racial disparities in convictions or sentencing to help him make a prima facie case for relief.

We issued an order to show cause to respondent Secretary of the California Department of Corrections and Rehabilitation (CDCR), limited to four issues: (1) whether the racially discriminatory use of peremptory challenges alone violates the RJA; (2) whether RJA habeas petitioners under section 1473(e) are entitled to discovery under section 745, subdivision (d) (section 745(d)); (3) whether a habeas petition must allege a prima facie case for relief before a court can consider a discovery request under section 745(d); and (4) what prima facie standard applies to RJA habeas petitions under section 1473(e).

While Haney's petition was pending, the California Supreme Court held in People v. Hazlett (2026) __ Cal.5th __, 2026 Cal. LEXIS 4660, *224, that the racially discriminatory use of peremptory challenges does not on its own violate section 745. As for the other three issues, shortly after the parties submitted their briefing in response to this order to show cause, the Legislature amended the RJA in several respects. (Stats. 2025, ch. 721.) The RJA is now clear that habeas petitioners under section 1473(e) are entitled to discovery under section 745(d); petitioners may obtain discovery under section 745(d) before filing a petition, much less stating a prima facie case for relief in a petition; and the prima facie standard in section 745 applies to habeas petitions under section 1473(e).

These conclusions suffice to discharge the order to show cause and require us to deny with prejudice Haney's claim based on the racially discriminatory use of peremptory challenges. But these conclusions do not otherwise address the merits of Haney's petition. As we will explain in a separate order (In re Robbins (1998) 18 Cal.4th 770, 813–814, superseded by statute on other grounds as stated in In re Friend (2021) 11 Cal.5th 720, 726), we will deny Haney's claims and discovery request on the merits but without prejudice to him filing a more limited version of his discovery request in the superior court.²

II. BACKGROUND

In 2005, a jury convicted Haney of aggravated mayhem (§ 205), torture (§ 206), corporal injury to a cohabitant (§ 273.5, subd. (a)), assault by means of force likely to produce great bodily injury (former § 245, subd. (a)(1), as amended by Stats. 2004, ch. 494, § 1), assault with a deadly weapon (§ 245, subd. (a)(1)), and criminal threats (§ 422). (People v. Haney (Dec. 20, 2006, A110037 [nonpub. opn.], review den. April 18, 2007.) It also found true several great bodily injury and weapons enhancements. (Ibid.) The conviction arose from an incident in which Haney struck his girlfriend with a heavy object, stabbed her several times, ripped out one of her eyes, and threatened to kill her. (Ibid.) The trial court sentenced Haney to life in prison with the possibility of parole plus seven years. (Ibid.) This court modified the abstract of judgment with respect to one enhancement and otherwise affirmed. (Ibid.) The California Supreme Court denied review. (People v. Haney (April 18, 2007) S149779.)

Haney filed many habeas petitions in state court in subsequent years, all of which were denied. Haney also filed a habeas petition in federal court in 2007, alleging that the prosecutor violated Batson v. Kentucky (1986) 476 U.S. 79 (Batson) by using his peremptory challenges to exclude all African Americans from his jury.³ (Haney v. Adams (N.D.Cal. May 1, 2009, No. C 07-4682 CRB (PR)) 2009 U.S. Dist. LEXIS 40856, *14.) The district court's review of the voir dire transcripts, which court records show the Attorney General had filed under seal, revealed that the prosecutor had exercised nine peremptory challenges and that defense counsel had not objected to any of them. (Id. at *14–*15.) The transcripts did not reveal the race of the jurors peremptorily challenged, but Haney alleged that there had been two African American potential jurors and that the prosecutor had excluded both of them. (Id. at *15.) The district court then summarized the transcripts and concluded that seven of the challenged potential jurors gave indications that they might be biased against the prosecution and the remaining two had race-neutral issues that made them poor candidates for sitting on a jury. (Id. at *17–*19.) The Ninth Circuit affirmed on the basis that Haney could not raise a Batson claim because his counsel had not objected on this basis during his trial. (Haney v. Adams (9th Cir. 2011) 641 F.3d 1168, 1173.)

In March 2024, Haney filed a habeas petition in San Francisco County Superior Court. Haney alleged violations of the RJA based on the prosecutor's exclusion of all African Americans from his jury and an older, white male juror's comment before trial, “This guy is going away.” Together with his habeas petition, Haney requested discovery under section 745(d) and the appointment of counsel. His discovery request sought all statistical evidence, aggregate data, and sentencing records of all defendants who were not Black and who were convicted of aggravated mayhem and torture. The San Francisco Superior Court denied Haney's habeas petition and requests for discovery and counsel in March 2024.

In May 2024, Haney filed a habeas petition in this court. In claim 1, Haney alleged an RJA violation based on the prosecutor's use of peremptory challenges to exclude all prospective African American jurors from his jury. In claim 2, he contended the superior court applied the wrong standard in concluding his petition did not state a prima facie case for relief. In claim 3, Haney alleged the superior court erred when it denied his request for transcripts of his jury voir dire. And in claim 4, Haney alleged an RJA violation based on the white juror's comment before trial, “This guy is going away.” Haney alleged the juror would not have said this if Haney were white. Haney also alleged the superior court's denial of his request for jury voir dire transcripts in 2007 interfered with his ability to raise this claim on appeal.

Separate from these claims, Haney requested discovery under section 745(d), asking for “all statistical evidence, aggregate data and sentencing records in San Francisco County of defendants who are not Black and were convicted of the same thing as [him] and received a lesser sentence than [him].” Haney also wanted to know if the prosecutor at his trial had a pattern of excluding Black people from juries. He argued he had established good cause for discovery because he is Black and the prosecutor had used peremptory challenges to exclude all Black people from his jury.

After informal briefing, this court issued an order to the CDCR to show cause why the relief Haney requested should not be granted. Following the approach of In re Robbins, supra, 18 Cal.4th at page 779, we limited the order to show cause to four potentially dispositive legal questions and deferred consideration of the merits of Haney's petition: “1. Does the [RJA] cover a claim in a habeas corpus petition based on a race-based peremptory challenge? [¶] 2. For habeas petitioners asserting RJA violations filed pursuant to Penal Code section 1473, subdivision (e), do the discovery provisions in Penal Code section 745, subdivision (d) apply? [¶] 3. Must a habeas petitioner allege a prima facie case for relief under the RJA before the trial court can consider a discovery request under Penal Code section 745, subdivision (d)? [¶] 4. What is the prima facie standard for habeas petitions asserting RJA violations filed pursuant to Penal Code section 1473, subdivision (e)? Please address whether and how, if at all, this habeas standard is distinct from the one applied to motions filed under Penal Code section 745 as discussed in Finley v. Superior Court (2023) 95 Cal.App.5th 12, 22.” Haney, through appointed counsel, filed an amended petition that incorporated and expanded upon his original petition. The CDCR filed a return, and Haney filed a traverse.

After briefing on Haney's amended petition was complete, the Legislature enacted Assembly Bill No. 1071 (2025–2026 Reg. Sess.), which amended sections 745 and 1473 in several respects. (Stats. 2025, ch. 721.) At the court's request, the parties submitted supplemental briefing regarding the impact, if any, of these changes.

III. DISCUSSION

A. Discriminatory Peremptory Challenges

The first issue identified in our order to show cause is whether the RJA covers a claim in a habeas corpus petition alleging a prosecutor made a race-based peremptory challenge. We need not analyze the question in detail because our Supreme Court spoke on the issue while Haney's petition was pending. In People v. Hazlett, supra, 2026 Cal. LEXIS 4660, at *224, the California Supreme Court held, “[T]he RJA does not apply to the questioning of or exercise of a peremptory challenge of a prospective juror.” Accordingly, a “defendant's claim regarding the prosecutor's questioning of a prospective juror and use of a peremptory challenge, standing alone, is not cognizable under the RJA.” (Ibid.) Because Haney's petition alleges only that the prosecutor's use of peremptory challenges to dismiss all prospective African American jurors from his jury violated the RJA, without any additional allegations that the prosecutor exhibited bias in some other fashion, we will issue a separate order denying this claim with prejudice. (See In re Robbins, supra, 18 Cal.4th at p. 814.)

B. Discovery Under Section 745(d) for Habeas Petitioners Under Section 1473(e)

The second and third issues identified in our order to show cause are whether the discovery provisions in section 745(d) apply to habeas petitioners asserting RJA violations under section 1473(e) and, if so, whether a court must find the petitioner has alleged a prima facie case before it can consider the petitioner's discovery request under section 745(d).

From its first enactment until the end of 2025, section 745(d) stated, “A defendant may file a motion requesting disclosure to the defense of all evidence relevant to a potential violation of subdivision (a) in the possession or control of the state. A motion filed under this section shall describe the type of records or information the defendant seeks.” (Compare former § 745(d), as enacted by Stats. 2020, ch. 317, § 3.5, with former § 745(d), as amended by Stats. 2024, ch. 495, § 4.) The Courts of Appeal were split as to whether this language allowed a defendant whose conviction was final to file a postjudgment motion for discovery under section 745 without filing a habeas petition and demonstrating to a court that an order to show cause should be issued because the petition set forth a prima facie case for relief. (Compare People v. Serrano (2024) 106 Cal.App.5th 276, 282–283, review granted, Jan. 15, 2025, S288202, review dism. Dec. 30, 2025, with In re Montgomery (2024) 104 Cal.App.5th 1062, 1071–1072, review granted Dec. 11, 2024, S287339, review dism. Dec. 30, 2025.) In their briefing in response to our order to show cause, Haney and the CDCR each took one of the sides in this split.

Effective January 1, 2026, the Legislature amended the RJA to resolve the dispute. The Legislature amended section 745(d) so that it now begins, “In any proceeding alleging a violation of subdivision (a), a defendant or petitioner may file a motion requesting disclosure to the defense of all evidence relevant to a potential violation of subdivision (a) in the possession or control of the state. A motion filed under this section, a motion under paragraph (2) of subdivision (e) of Section 1473, or a motion under paragraph (3) of subdivision (a) of Section 1473.7 shall describe the type of records or information the defendant seeks.” (§ 745(d), as amended by Stats. 2025, ch. 721, § 2, italics added.) The Legislature also added subdivision (e)(2) to section 1473, which now states, “A petitioner, or their counsel, may file a motion for relevant evidence under subdivision (d) of Section 745 upon the prosecution of a petition under this subdivision, or in preparation to file a petition.” (§ 1473(e)(2), as amended by Stats. 2025, ch. 721, § 3, italics added.) In an uncodified preamble, the Legislature stated its intent that “individuals must be afforded access to a broad range of relevant discovery to develop and support their potential RJA claims,” so that they are not “left in the impossible position of having their claims rejected for want of the very data they seek.” (Stats. 2025, ch. 721, § 1(b).)⁴

After we requested supplemental briefing, the CDCR now agrees with Haney that the amended statute makes clear that habeas petitioners like him are entitled to discovery under section 745(d) even before stating a prima facie case. We agree as well. Section 1473(e)(2) makes discovery under section 745(d) available in habeas proceedings under the RJA. It also makes clear that a petitioner need not establish a prima facie case to obtain discovery, or even have filed a petition at all, since it allows a petitioner to move for discovery “upon the prosecution of a petition under this subdivision, or in preparation to file a petition.” (§ 1473(e)(2).)

C. Prime Facie Standard for Petitions Under Section 1473(e)

The fourth issue identified in our order to show cause is what prima facie standard applies to habeas petitions under section 1473(e) asserting RJA violations and whether that standard is different from the one applied under section 745, as discussed in Finley v. Superior Court (2023) 95 Cal.App.5th 12, 22 (Finley).

Section 745, subdivision (c) (section 745(c)) has, since its enactment as part of the RJA, required a trial court to hold a hearing on a motion raising an RJA claim if the defendant makes “a prima facie showing of a violation” of section 745, subdivision (a). (Compare § 745(c) with former § 745(c), as enacted by Stats. 2020, ch. 317, § 3.5.) Until the end of 2025, section 745, subdivision (h) and (h)(2) also established that “[a]s used in this section,” meaning section 745, “ ‘[p]rima facie showing’ means that the defendant produces facts that, if true, establish that there is a substantial likelihood that a violation of subdivision (a) occurred.” (Former § 745, subd. (h) & (h)(2), as amended by Stats. 2024, ch. 495, § 4.) Meanwhile, the rule generally applicable to habeas petitions was that a petition states a prima facie case for relief if “ ‘it states facts that, if true, entitle the petitioner to relief’ ” and is not procedurally barred. (Finley, supra, 95 Cal.App.5th at p. 21.)

Finley, noting the difference between these standards, applied the lower RJA standard to a pre-trial motion under section 745, consistent with former section 745(h) and (h)(2). (Finley, supra, 95 Cal.App.5th at p. 22.) This left open the question of whether a petitioner alleging RJA claims via a habeas petition under section 1473(e) had to meet the lower RJA standard or the higher general habeas standard.

Haney argued in his amended petition that although Finley distinguished between RJA motions and general habeas petitions for the purposes of RJA motions, it never held that the general habeas standard applied to RJA habeas petitions under section 1473(e). He therefore urged us to apply the lower RJA standard to his petition. The CDCR, for its part, maintained that Finley’s application of the lower section 745(h)(2) standard governed only RJA motions under section 745 and did not apply to RJA habeas petitions under section 1473(e).

As the parties now agree, the Legislature's recent amendments to the RJA resolve this dispute as well. Section 745(h) now states that its definition of prima facie showing applies “[a]s used in this section and for the purposes of a petition pursuant to subdivision (e) of Section 1473.” Section 1473(e)(1) likewise now states, “Any and all definitions and legal thresholds specified in Section 745 are controlling for purposes of claims alleging a violation of subdivision (a) of Section 745 contained within a habeas petition filed under this section.” There is no longer room for any doubt that the Legislature intends the lower RJA prima facie standard in section 745(h)(2) to apply to RJA habeas petitions under section 1473(e).

IV. DISPOSITION

The order to show cause is discharged.

I concur in the opinion denying habeas relief, though I must emphasize that I join Section I of the opinion reluctantly and only for the reasons stated by our Supreme Court in People v. Hazlett (Aug. 27, 2026, S126387) ___ Cal.5th ___ [2026 WL 2527137] (Hazlett). Hazlett holds that alleged racially discriminatory use of peremptory challenges by prosecutors is not cognizable under the Racial Justice Act (Pen. Code, § 745) (the RJA),⁵ and unless the Legislature decides otherwise at some future point, let there be no doubt—Hazlett definitively resolves the identical issue presented here.

While I concur under compulsion of Hazlett, I write to express agreement with Justice Evans's Hazlett dissent. Nothing I say here should be taken as a criticism of Chief Justice Guerrero's treatment of the cognizability of race-based peremptory challenges under the RJA—she speaks for the court on this issue with characteristic precision and balance—but because there are some considerations in play here that neither side argued in Hazlett (I know, because the same positions and the same arguments were presented to us), I think it is worthwhile to add some perspectives that may bear on whether legislative clarification is in order.

I. The RJA: Purpose and Intent

Penal Code section 745 was not enacted in a vacuum. It was passed on our Legislature's determination that, following the lead of the United States Supreme Court, courts across the country have largely turned a blind eye to the malign effects of racial discrimination in criminal cases (see McCleskey v. Kemp (1987) 481 U.S. 279 (McCleskey)) and have been ineffective in dealing with racial bias in that context even when taking steps designed to combat it (see Batson v. Kentucky (1986) 476 U.S. 79 (Batson)).

This line of criticism is not new. It was voiced by some high court justices when McCleskey and Batson were decided (see McCleskey, supra, 481 U.S. at pp. 320–345 (dis. opn. of Brennan, J.); Batson, supra, 476 U.S. at pp. 102–108 (conc. opn. of Marshall, J.)) and by another member of the high court more recently (see Miller-El v. Dretke (2005) 545 U.S. 231, 266–273 (conc. opn. of Breyer, J.) (Miller-El)). The reservations stated by Justice Marshall in his Batson concurrence—pinpointing the difficulty of ferreting out unconscious bias in the use of peremptory challenges—were notably prescient.

Taking a side in this ongoing debate decades later, our Legislature made its intentions clear when the RJA was enacted, repeatedly citing the views of Justices Brennan and Marshall and stating that: (1) the RJA's objective is to eradicate all forms of racial bias ⁶ in any criminal proceeding in the California courts, at every stage from the beginning to the end; (2) the RJA is designed to eliminate any requirement that intentional discrimination be shown in order to prove racially discriminatory taint in criminal proceedings; (3) toward that end, the statute seeks to address implicit bias as well as explicit bias and permits statistical proof of bias based on disproportionate racial impact; and (4) racially biased use of peremptory challenges in jury selection, the problem flagged by Justice Marshall in Batson, is one of the principal evils the RJA means to rectify. We need not go to the legislative history to discover any of this. The uncodified findings explain all of these points at length. (Assem. Bill No. 2542 (2019–2020 Reg. Sess.) (Assembly Bill 2542), Stats. 2020, ch. 317, § 2, subds. (a)–(j); see Young v. Superior Court (2022) 79 Cal.App.5th 138, 149–150 (Young).)

After five years of experience under the RJA, the Legislature has signaled its dissatisfaction with perceived judicial reticence to apply the RJA in full accordance with statutory intent. Another set of uncodified legislative findings, passed in 2025 in connection with certain RJA amendments, cited various examples of courts “misconstru[ing] the statute to apply procedural barriers or otherwise impose impediments to relief, discordant with the legislative intent of the RJA.” (Assem. Bill No. 1071 (2025–2026 Reg. Sess.) (Assembly Bill 1071), Stats. 2025, ch. 721, § 1, subd. (a).) These recent legislative findings also state the Legislature's intention that, “in applying the RJA, courts consider evidence of racism's origins, insidious shifts, and current manifestations.” (Stats. 2025, ch. 721, § 1, subd. (d).)

II. The Attorney General's Position in the Case

Against this backdrop, the Attorney General contends that because a racially discriminatory peremptory challenge in jury selection is directed “towards” a prospective juror, instead of “towards the defendant,” such a challenge does not constitute an “exhibit[ion]” of racial bias within the meaning of the RJA. To “confirm” this reading of the statute but without identifying any ambiguity in its words, the Attorney General moves quickly to the RJA's legislative history.

Here, the Attorney General relies on unenacted contingency language in Assembly Bill 2542, the bill that became the RJA, specifically authorizing relief if “[r]ace, ethnicity, or national origin was a factor in the exercise of peremptory challenges” (Assem. Bill 2542, § 3). This contingency language was designed to go into effect only upon the failure of Assembly Bill No. 3070 (2019–2020 Reg. Sess.) (Assembly Bill 3070), a concurrent bill that eventually became Code of Civil Procedure section 231.7.⁷ Both the RJA and Code of Civil Procedure section 231.7 were enacted, however, so in the end the specific reference to race-based use of peremptory strikes was not included in the enacted text. From this, the Attorney General invites us to infer a legislative intent to address the topic under Code of Civil Procedure section 231.7 instead of the RJA.

Recognizing that the Attorney General's position is now the law, I believe there are reasons to believe the Legislature may take a different view of its own intent. While I tend to agree with Justice Evans's reading of the statutory drafting history, I would add the observation that Assembly Bill 3070 covered both civil as well as criminal cases and thus, at least in theory, faced more potential opposition than Assembly Bill 2542 did because of its impact on civil practice. Given this fundamental difference in statutory coverage, the reality of the time these bills emerged is that Assembly Bill 2542 probably had greater political momentum in the wake of the George Floyd killing, which occurred in late May 2020. That, I think, has some bearing on any reading of what the unenacted Assembly Bill 2542 contingency language meant.

Anticipating the potential failure of Assembly Bill 3070 under these unique conditions, the language may well have been proposed to head off any argument that the rejection of Assembly Bill 3070 demonstrated a categorical legislative intent not to address racially discriminatory use of peremptory challenges in either statute. It seems to me that is and has always been a weak argument, given the comprehensive scope of the RJA, but under circumstances where Assembly Bill 3070 failed, it may well have been a matter of legitimate concern. Viewed in this light, the true statutory intent here—simply to emphasize that race-based peremptory challenges would remain covered by the RJA even if Assembly Bill 3070 failed ⁸ —may be exactly contrary to the intent urged by the Attorney General.

Now, can we say for sure whether the legislative history reveals a clear intent, one way or the other, on the issue of whether the RJA covers race-based peremptory challenges? Candidly, I think not. What we can say for sure, though, is that the toggling of different versions of the contingency language in early drafts of Assembly Bill 2542 (i.e., prospective and retroactive [option one] versus retroactive only [option two]) does not speak directly to the essential question here—whether, in order for the RJA to cover peremptory challenges in the first place, specific language addressing this issue was necessary at all.

For those who ultimately voted in favor of both bills—the members of the Legislature whose views obviously matter the most here—the distinction drawn in early drafts between option one and option two likely did not matter since both enactments were prospective upon the final vote. The fact that retroactivity was a nonissue when the final vote took place goes unmentioned by the Attorney General. The RJA was not made retroactive until 2022, upon passage of a subsequent amendment. (Stats. 2022, ch. 739, § 2.) The Attorney General's silence about this detail in the legislative history obscures the fact that two objectives likely lay behind the early draft unenacted contingency language, something that is easy to miss when we judges try to attribute a single “intent” to statutory text, whether proposed or enacted. One of those objectives was moot at the time of the final vote, and the other was addressed two years later when the Legislature in effect enacted option one (the prospective and retroactive version) under circumstances when it was no longer necessary to say anything about the contingency scenario where Assembly Bill 3070 failed.

The bottom line for me in assessing the Attorney General's legislative history argument is this: Rather than piece together statutory intent from fragments in the drafting history, I think it is better to avoid trying to divine the meaning of proposed contingency language that never went into effect (Medical Board v. Superior Court (2003) 111 Cal.App.4th 163, 182 [“Because the legislative history is itself ambiguous, it is not useful in construing” disputed meaning of statutory language]; see J.A. Jones Construction Co. v. Superior Court (1994) 27 Cal.App.4th 1568, 1579), especially since, by taking up the Attorney General's invitation to do so, we are adopting a construction of the RJA that is at odds with the uncodified legislative findings. Those findings, after all, were voted on and passed upon a final vote of the entire Legislature. The early drafts and associated committee commentary were not.

III. Race-Based Use of Peremptory Challenges in Historical Context

The weakest link in the Attorney General's argument is his failure to identify an ambiguity in the statutory language that justifies looking beyond the text, structure and context of the statutory words before leaping into legislative history. Read in context—and here I mean the full historical context supplied by the background law in this area, not just the narrow confines we see in the legislative drafting process—I find no ambiguity in the phrase “towards the defendant,” and no need to try to determine what the unenacted Assembly Bill 2542 contingency language might tell us about the substantive scope of the RJA.

Responding to the Legislature's reminder that courts should account for the full historical backdrop when interpreting and applying the RJA (Assembly Bill 1071, ch. 721, § 1, subd. (d)), I review this history in depth below and distill some specific lessons from it in part III.D, post. To cut to the heart of the matter upfront, my short answer to the Attorney General's textual analysis is that, if we trace the full evolution of the law of jury discrimination, the injury caused by race-based use of peremptory challenges is the deprivation of the defendant's right to a fair and impartial jury under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Taking that as the background law the Legislature understood to be applicable when it passed the RJA, I conclude that we are dealing with conduct directed “towards” the defendant.

Justice Evans's citation to Strauder v. West Virginia (1880) 100 U.S. 303 (Strauder)— the beginning of a long road that led to Wheeler—shows that she appreciates the importance of this history, but I think there is more to say on the topic. To begin with, and at the most general level, most scholars of the history of racism in the United States, whether writing as generalists ⁹ or as legal academics concerned specifically with the evolution of the law in this area,¹⁰ cover the topic of race discrimination in jury service, and many place it at the center of their narratives along with discrimination in voting rights. With this in mind, one general observation may be made at the outset: The centrality of racial exclusion in jury selection, by its sheer prominence in these scholarly works, tends to undercut any suggestion that, based on the ambiguous circumstances surrounding the unenacted contingency language referring to peremptory challenges in Assembly Bill 2542, the Legislature chose to drop the topic of race-based peremptory challenges from the RJA altogether. Indeed, that conclusion seems almost stunning in historical context, given the Legislature's stated goals.

A. The Strauder Trilogy

The history of race-based use of peremptory challenges, which is part of the broader history of race discrimination in jury selection in the United States, is vast.¹¹ The conventional starting point is Strauder, one of three high court decisions addressing race discrimination in jury selection in 1880 and 1881. As pertinent here, the other two are Virginia v. Rives (1880) 100 U.S. 313 (Rives) and Neal v. Delaware (1881) 103 U.S. 370 (Neal).)¹² Together, these three cases enunciate a set of foundational principles that have marked out the boundaries of the law governing racial discrimination in jury selection ever since.

The leading case in the trilogy is Strauder itself, the first race discrimination case to be decided by the high court under the then recently adopted Fourteenth Amendment. Upholding a facial challenge to a West Virginia statute that limited jury service to adult white men,¹³ Strauder has been cited in modern equal protection cases ranging from Brown v. Board of Education (1954) 347 U.S. 483, 490, fn. 5, to McCleskey, supra, 481 U.S. at p. 310, to Students for Fair Admissions v. President and Fellows of Harvard College (2023) 600 U.S. 181, 202 (Students for Fair Admissions), and is generally recognized to be the fountainhead of the high court's Batson jurisprudence (see Flowers v. Mississippi (2019) 588 U.S. 284, 294; Miller-El, supra, 545 U.S. at p. 238; Georgia v. McCollum (1992) 505 U.S. 42, 46; Batson, supra, 476 U.S. at p. 85).

The constitutional analysis in Strauder began with a general discussion of the purpose of all three Civil War amendments.¹⁴ Some of the language in Strauder spoke in the register of the Thirteenth Amendment,¹⁵ but there is no question that the high court ultimately resolved the case on Fourteenth Amendment equal protection grounds. To frame its equal protection analysis, the high court placed great stress on the state constitutional right every criminal defendant in West Virginia had to a jury trial. “The right to a trial by jury [of one's peers] is guaranteed to every citizen of West Virginia by the Constitution of that State, and ․ is a very essential part of the protection such a mode of trial is intended to secure[,]” the high court points out. (Strauder, supra, 100 U.S. at p. 308.)¹⁶

The West Virgina Supreme Court held that “the powers of the State Legislatures over the civil rights, privileges, duties, or immunities of any and all of its citizens, whether negroes or whites, remain as they always were” and, despite the passage of the Fourteenth Amendment, “the negro has no more right to insist upon” equal treatment in state court proceedings “than a Chinaman or a woman.” (State v. Strauder (1877) 11 W.Va. 745, 815, 817.) Unsurprisingly, the high court reversed.¹⁷ Having extended to all West Virginians a state law right to a jury of one's peers, the high court held that West Virginia was obliged to extend the same right to all citizens with an even hand, regardless of color. Since the racially unequal treatment in Strauder was codified by statute, and since no white defendant ever faced the prospect of trial before a jury bereft of white jurors, the court concluded that “compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone[,]” denies him equal protection of the law. (Strauder, supra, 100 U.S. at p. 309.)

Rives, supra, 100 U.S. 313, was the first of a long series of cases limiting the scope of Strauder’s equal protection holding. The primary focus of the Rives opinion was procedural. Under the holding in Rives, the high court recognized a right to federal removal by a defendant objecting to his jury on Strauder grounds,¹⁸ but only prior to trial and only if he showed a constitutional violation had already occurred. (Rives, at pp. 320–323.) That holding required defendants with Strauder claims to suffer conviction first and take their chances that state courts would fairly enforce their Strauder rights in the jury selection process at trial, subject to direct review on appeal, ultimately in the high court. (Rives, at pp. 320–323.) This left Strauder enforcement almost entirely in the hands of state trial courts, where all-white juries had been the norm since the nation's founding.¹⁹ The theoretical possibility that jury selection rules might be applied at trial in violation of the equal protection clause was not enough to justify removal to federal court.

But the Rives opinion also placed an important substantive limit on Strauder’s equal protection holding. The Rives defendants contended that they were affirmatively entitled to a racially mixed jury comprised of one-third African Americans. Rejecting this contention, the high court said what a defendant has is “a right to ․ the selection of jurors to pass upon his life, liberty, or property” where “there shall be no exclusion of his race, and no discrimination against them because of their color. But this is a different thing from the right which it is asserted was denied to [them] by the State court, viz. a right to have the jury composed in part of colored men. A mixed jury in a particular case is not essential to the equal protection of the laws, and ․ is not, therefore, guaranteed by the Fourteenth Amendment.” (Rives, supra, 100 U.S. at pp. 322–323.)

The distinction Rives drew between a right to prevent race-based exclusion of prospective jurors from the jury selection process and a right to demand inclusion of particular jurors on a particular jury became a cornerstone of the governing law in this area. (See Swain v. Alabama (1965) 380 U.S. 202, 208 (Swain) [“a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn”], overruled on other grounds, Batson, 476 U.S. at p. 100, fn. 25.)²⁰ What that meant, as a practical matter, was that, at least until Batson, the pivotal issue in applying Strauder was whether members of the defendant's race were given an opportunity to serve—specifically, the focus was the composition of the jury venire and the procedures used to define eligibility—not on who was actually chosen to serve in a particular case at trial.

Neal, the first case to begin implementing the legal principles enunciated in Strauder and Rives, set the evidentiary bar high. The Strauder court had observed that states are free to “confine the selection [of jurors] to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications.” (Strauder, supra, 100 U.S. at p. 310.) Neal presented the question whether, in the absence of a legislatively codified policy of racial discrimination, an equal protection claim may be sustained where jury qualification rules, as administered, had a racially discriminatory effect.

The Delaware Supreme Court said no, even though on the record presented there, no African American had served on a grand or petit jury in Delaware for 20 years and the state admitted an official policy of race discrimination. According to the Chief Justice of the Delaware Supreme Court, the fact “ ‘that none but white men were selected is in nowise remarkable in view of the fact—too notorious to be ignored—that the great body of black men residing in this State are utterly unqualified by want of intelligence, experience, or moral integrity to sit on juries.’ ” (Neal, supra, 103 U.S. at pp. 393–394.) The high court reversed, but on a ground so narrow—the official admission of racially discriminatory purpose—it rendered Strauder toothless for decades. With the exception of Neal, no Strauder claim attacking alleged administrative discrimination in jury selection succeeded on the merits in the high court for more than fifty years.²¹

The main stumbling block was discriminatory intent. Under a line of cases decided in the late 19th and 20th centuries, the high court held that the defendant bore the burden of presenting evidence of discriminatory intent ²² ; great deference—indeed, conclusive effect—was given to state trial court findings ²³ ; the officials responsible for compiling jury rolls were presumed to be acting without discriminatory intent in compliance with federal law ²⁴ ; in the absence of “competent proof” offered on personal knowledge, a verified petition alleging statistical disparities in the available African Americans qualified to serve on juries versus the number called (consistently zero) was insufficient where the state denied any discriminatory intent ²⁵ ; access to evidence—such as requests for subpoenas to elicit testimony from jury commissioners—was frequently denied in the face of the presumption of regularity of official conduct ²⁶ ; and yet Strauder motions were held to be properly denied if not supported by evidence.²⁷ There were a few exceptions, in cases where trial courts simply refused to hear Strauder motions supported by competent evidence and presented in proper form, but these cases involved the procedure followed, not the merits of claims.²⁸

The tool of choice for racial discrimination by jury commissioners during this era—voting eligibility criteria used as a proxy for jury service qualifications, as those criteria were applied by jury commissioners in compiling the “jury roll” (i.e., the venire)—bore the signature of Jim Crow. Because these criteria, typically some formulation such as “honesty, good moral character and intelligence” in the eyes of jury commissioners, were tied to voting eligibility, racially discriminatory voter registration laws served the dual purpose of excluding African Americans from the jury box and the voting booth.

The validity of jury discrimination linked to voting discrimination came before the high court in Williams v. Mississippi (1898) 170 U.S. 213 (Williams), which was decided not long after Plessy v. Ferguson (1896) 163 U.S. 537, at the height of the Jim Crow era. In Williams, an African American criminal defendant, citing Yick Wo v. Hopkins (1886) 118 U.S. 356 (Yick Wo), argued that the unfettered discretion conferred upon administrative officers under Mississippi law to bar African Americans from registering to vote using literacy tests, and in turn to sit on juries, violated the equal protection clause under Strauder. Breezily dismissing this contention, the sum total of the high court's reasoning in Williams was that “nothing tangible can be deduced from” Mississippi's restriction on voting. (Williams, supra, 170 U.S. at p. 222.)

According to the Willams court, “[i]f weakness were to be taken advantage of, ․ the means of it were the alleged characteristics of the negro race, not the administration of the law by officers of the state.” (Williams, supra, 170 U.S. at p. 222.) The principle of Yick Wo, although anticipated under the logic in Neal as a possible limit on racial discrimination in jury service carried out by administrative means, did not apply. The challenged jury service qualification criteria in Mississippi, said the high court, “do not on their face discriminate between the races.” (Williams, at p. 224.) “[I]t has not been shown that their actual administration was evil; only that evil was possible under them.” (Id. at p. 225.)

Compounding the racial barriers to African American jury service imposed by the doctrine of intent to discriminate when applied together with subjective qualification standards, was the practical reality that, in the late 19th and early 20th centuries, many criminal defendants were unrepresented or poorly represented.²⁹ Lack of access to counsel meant that these defendants were incapable of navigating the complex thicket of pretrial procedural timeliness and forfeiture rules that state trial courts began to apply to Strauder claims after Rives. For those who were able to find counsel, defense lawyers were often unwilling to raise these claims.³⁰ And unlike today, forfeitures due to ineffective lawyering could not be rectified by postconviction review, since habeas corpus review as we know it today did not exist.³¹

B. Paradigm Shift: Norris v. Alabama

A paradigm shift came in Norris v. Alabama (1935) 294 U.S. 587 (Norris). Norris was one of two high court cases, both known today by the name of the rural town where they were first tried, Scottsboro, in Jackson County, Alabama. The Scottsboro cases arose out of the prosecution of nine young African American defendants ranging in age from 13 to 20 for the alleged rape of two white girls in 1931 while they were all riding from town to town, “hobo” style, in an open railway car. (Powell v. Alabama (1932) 287 U.S. 45, 50–52 (Powell).)

The defendants were tried in multiple groups under circumstances of mob hostility outside the courthouse. (Powell, supra, 287 U.S. at p. 50.) Although the judge appointed “all of the members of the bar” of Scottsboro to act for the defendants at arraignment (id. at p. 53), no one entered an appearance for them when the trials began five days later (id. at p. 56). The trials lasted a day each (id. at p. 50), and the juries returned guilty verdicts and imposed the death sentence with all convictions (ibid.). The high court reversed the convictions in Powell,³² a landmark in its own right because it established the right of indigent criminal defendants facing capital charges to appointment of counsel of their choice. (Id. at p. 65.)

Norris arose out of one of the retrials on remand after a change of venue to Morgan County, Alabama. Despite the fact that the victims had recanted by the time of the second trial, defendant Norris was convicted and sentenced to a life term. Relying on Strauder, and represented by counsel at that point, Norris claimed error in the denial of his motion to quash the jury venire in light of “long-continued, systematic, and arbitrary exclusion of qualified negro citizens from service on juries, solely because of their race and color.” (Norris, supra, 294 U.S. at p. 588.)

The high court upheld the claim, and reversed. (Norris, supra, 294 U.S. at p. 588.) Without mentioning its prior precedent treating state court fact finding as conclusive, the court independently reviewed the record ³³ and fashioned a burden-shifting framework looking first to whether the defendant's evidentiary showing made out a prima facie case of systematic racial exclusion in jury service, and then, if a prima facie case was established, to whether the state offered a satisfactory rebuttal. (Id. at pp. 591–598.) After finding adequate prima facie proof as to the composition of both the grand jury in Jackson County and the trial jury in Morgan County, the Norris court held that Alabama failed to offer a persuasive rebuttal. (Ibid.) It rejected a trial court finding to the contrary without deference. (Ibid.)

Norris established a new framework of analysis under which a statistical showing of “systematic exclusion” of African Americans from jury service over many years was enough to establish a prima facie case of prohibited discrimination. In a series of cases in the late 1930s, the 1940s, and the 1950s, many of them involving African American men who were sentenced to death in rape prosecutions, as in Powell and Norris, the requisite intent to discriminate was inferred from circumstantial pattern and practice evidence based on statistics comparing the population of African Americans of adult age to those who were chosen to serve.³⁴

For three decades after Norris, the high court routinely relied on the systematic exclusion test to invalidate methods of selecting jury venires, drawing no distinction between grand or petit jury service. These cases commonly involved selection methods that relied on disguised modes of discrimination hidden behind the exercise of administrative discretion.³⁵ As the high court stated in Smith, supra, 311 U.S. 128, a jury selection plan may be racially neutral on its face and thus capable of nondiscriminatory application, but would not survive scrutiny if, “by reason of the wide discretion permissible in the various steps of the plan, it is equally capable of being applied in such a manner as practically to proscribe any group thought by the law's administrators to be undesirable.” (Id. at p. 131.)³⁶

The high court's cases applying Norris in these years abandoned the Jim Crow era indifference to race discrimination in jury selection by means of administrative discretion, an attitude exemplified by the Williams case in 1898. Under the Norris line of cases, “[w]hen a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.” (Patton v. Mississippi, supra, 332 U.S. at p. 469, italics added.)

Under a line of cases spawned by Norris, the high court reframed the articulated basis for barring racial discrimination in jury service. In these cases, the high court began to look at jury service discrimination—of all kinds, based on gender, class and race ³⁷ —through the prism of the right to a fair and impartial jury. (See Smith, supra, 311 U.S. 128; Glasser v. United States (1942) 315 U.S. 60, 85; Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 220; Ballard v. United States (1946) 329 U.S. 187, 195.) This analytical approach—which focused on whether the jury, as chosen, reflected a representative cross-section of the community, was not possible in the era of Strauder because of the narrow scope given to the Fourteenth Amendment in the Slaughter-House Cases.

The representative cross-section thread in the high court's Norris jurisprudence was especially influential here in California—indeed, it eventually became the doctrinal foundation for Wheeler—as reflected in a line of cases dating from the mid-1950s. (See People v. White (1954) 43 Cal.2d 740, 749.)³⁸ The high court eventually held that a defendant's right to a fair and impartial jury is constitutionally fundamental, incorporating it as protected under the Sixth Amendment and therefore binding on the states through the due process clause of the Fourteenth Amendment, adopting representative cross-section analysis as a matter of federal constitutional law. (See Duren v. Missouri (1979) 439 U.S. 357, 358–359 (Duren).)³⁹ This created a tension—with the high court's new cross-section principle standing uneasily alongside the traditional equal protection approach that had prevailed since Strauder. And at least as a matter of federal law, the tension went unresolved until Batson.

The late 1930s through the early 1960s proved to be the highwater mark of the high court's commitment to enforcing Strauder’s antidiscrimination principle. Not only did defendants prevail in many cases during this period by invoking Norris, as noted above, but the high court broadened the procedural scheme established in Rives. In the early 1950s, the high court opened a pathway to postconviction collateral review by habeas corpus in Brown v. Allen (1953) 344 U.S. 443. That offered defendants who were unrepresented or poorly represented in their state court trials an opportunity to overcome the forfeiture of Strauder objections in state court based on rigid enforcement of pretrial procedural rules.⁴⁰

C. Swain v. Alabama Through Batson v. Kentucky

The next milestone case in the evolution of the law of race discrimination in jury selection was Swain v. Alabama, supra, 380 U.S. 202, the first case in which a claim of racially discriminatory use of peremptory challenges by a prosecutor reached the high court. The case arose in Talladega County, Alabama. (Id. at p. 210.) As the record there was summarized by the high court, “while Negro males over 21 constitute 26% of all males in the county in this age group, only 10 to 15% of the grand and petit jury panels drawn from the jury box since 1953 have been Negroes, there having been only one case in which the percentage was as high as 23%․ Although there has been an average of six to seven Negroes on petit jury venires in criminal cases, no Negro has actually served on a petit jury since about 1950. In this case there were eight Negroes on the petit jury venire but none actually served, two being exempt and six being struck by the prosecutor in the process of selecting the jury.” (Id. at p. 205.)

The holding in Swain was twofold. First, the high court rejected a statistics-based claim under Norris that the underrepresentation of African Americans in the jury venire from which the trial jury was chosen, alone, was sufficient to establish a prima facie violation of the equal protection clause. (Swain, supra, 380 U.S. at pp. 205–209.) Second, after reviewing the common law heritage of the peremptory challenge and its historic function—an “originalist” approach before that style of reasoning had a name—the high court held that, “in any given case,” a prosecutor's reasons for exercising peremptory challenges in the selection of trial juries must be presumed to have been proper and beyond equal protection scrutiny. (Id. at pp. 209–222.)

At least in theory, the Swain court left the door slightly ajar to the pursuit of Norris systematic exclusion claims in the use of peremptory challenges by prosecutors. The high court explained this caveat as follows: “We have decided that it is permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, ․ the presumption protecting the prosecutor may well be overcome.” (Swain, supra, 380 U.S. at pp. 223–224.)

A dissent from Justice Goldberg attacked the disaggregated approach to analysis the Swain majority took—separately analyzing the method of assembling the jury venire and the method of choosing the trial jury—on the ground that this kind of siloed focus on different steps in the jury selection process “seriously impairs” the authority of Norris and its progeny. (Swain, supra, 380 U.S. at p. 231 (dis. opn. of Goldberg, J.).) He pointed out that racial discrimination at different stages in the jury selection process must be viewed in its entirety, not by analyzing each stage one-by-one. “It may be,” he explained, that Talladega County's “ ‘haphazard’ method” of selecting the jury venire, “standing alone,” does not “show unlawful jury discrimination. [But] this method of venire selection cannot be viewed in isolation and must be considered in connection with the peremptory challenge system with which it is inextricably bound.” (Id. at p. 237 (dis opn. of Goldberg, J.).)

In the years after Swain, the high court eventually loosened what was once known as the “rule of exclusion” under which only total exclusion of cognizable groups from jury service over many years was enough to establish a prima facie violation of the equal protection clause. A handful of high court cases in the 1970s recognized the potential for violations of the equal protection clause in cases of underrepresentation—what the high court sometimes called “forbidden token inclusion.”⁴¹ But in no reported case, federal or state, was a defendant ever able to meet the demanding test required to trigger the narrow exception Swain envisioned.⁴²

The next major shift came in Batson, but it is important to appreciate what led to the shift. In the early 1980s, Justice Marshall authored a series of dissents from denial of certiorari calling for Swain to be revisited.⁴³ He argued that “Swain is inconsistent with the rule established in other jury selection cases that a prima facie violation is established by showing that an all-white jury was selected and that the selection process incorporated a mechanism susceptible to discriminatory application, irrespective of when in the selection process that opportunity arose.” (McCray, supra, 461 U.S. at p. 965 (dis. opn. of Marshall, J.).) And in his view, the standard of proof for discrimination in Swain imposed a nearly insurmountable burden on defendants. (Ibid.)

These dissents led to the grant of certiorari in Batson. By that time, our Supreme Court in Wheeler and other states and federal courts following it ⁴⁴ had recognized claims of racially discriminatory “group bias” in prosecutorial exercise of peremptory challenges under their respective state constitutional right-to-jury-trial protections. Wheeler explicitly declined to follow Swain in favor of an inquiry into whether prosecutorial use of peremptory challenges deprived the defendant of a fair and impartial jury composed of a representative cross-section of his community. (Wheeler, supra, 22 Cal.3d at pp. 283–287.) And in doing so, our Supreme Court relied on both the Sixth Amendment, citing the Duren line of cases, and on article I, section 16 of the California Constitution, citing its own White line of cases (Wheeler, at p. 287), while extensively discussing a large body of scholarly commentary that had been critical of Swain (Wheeler, at pp. 276, fn. 17, 278, fn. 19, 279, fns. 23 & 24).⁴⁵

When other state courts, and many federal circuit courts of appeal, rejected Wheeler, opting to continue to follow Swain, (Batson, supra, 476 U.S. at p. 82, fn. 1), the high court granted certiorari in Batson to resolve the split. (Id. at p. 112 (dis. opn. of Burger, C.J.).) The question presented in Batson was whether to follow Wheeler’s representative cross-section analysis under the Sixth Amendment (ibid.), thus avoiding the need to overrule its own decision in Swain, or instead to overrule Swain and adhere to the traditional Fourteenth Amendment approach that had been followed since Strauder.

The high court opted to overrule Swain, but only in part. In doing so, it borrowed from the remedy section of Wheeler (see Wheeler, supra, 22 Cal.3d at pp. 278–283), adopting the same three-step test the Wheeler court devised to detect prohibited “group bias,” but anchoring the analysis in the equal protection clause. (Batson, supra, 476 U.S. at pp. 88–98.) Under Batson’s now familiar equal protection test, “[f]irst, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide ․ whether the opponent of the strike has proved purposeful racial discrimination.’ ” (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)⁴⁶

Because Batson reads the antidiscrimination principle of Strauder as a prohibition of discrimination against prospective jurors and continues to apply it as a matter of equal protection law under the Fourteenth Amendment—which requires state action—the high court had to confront and resolve a series of difficult doctrinal problems in the early 1990s. Does a criminal defendant have third party standing to complain about discrimination directed toward someone else? Does a criminal defendant of one race have the right to complain about discrimination directed toward a prospective juror of another race? Does the exercise of peremptory challenges by the defense, not by the prosecution, constitute state action, thus extending the prohibition to defense lawyers as well as the prosecution?

The high court eventually answered all of these questions yes,⁴⁷ but none of them would have arisen under Wheeler’s representative cross-section rule, which applies to both sides and all cognizable minority groups (Wheeler, supra, 22 Cal.3d at pp. 276–277 [rule applies to “parties,” not just prosecution], id. at p. 280 & fn. 26 [all “cognizable group[s],” not just African Americans])—and most importantly, involves the deprivation of the defendant's right to a fair and impartial jury (id. at p. 270 [“representative cross-section rule” “protect[s] the constitutional right to an impartial jury”]). Wheeler, unlike Batson, turns on injury to the defendant's right to a fair and impartial jury, not on the prospective juror's right to be free from discrimination in jury selection.

But Batson did not completely overrule Swain. In 1990, the high court returned to the question presented by its grant of certiorari in Batson—whether race-based use of peremptory challenges to the seating of a trial jury may be attacked under the Sixth Amendment's representative cross-section requirement. Pivoting definitively away from the approach taken in Wheeler, it answered that question no. The high court rejected the argument “that a prosecutor's use of peremptory challenges to eliminate a distinctive group in the community deprives the defendant of a Sixth Amendment right to the ‘fair possibility’ of a representative jury” (Holland v. Illinois (1990) 493 U.S. 474, 478 (Holland)), and in doing so, it cited and quoted generously from Swain (Holland, at pp. 480–484), thus confirming Swain’s continuing vitality except as modified by Batson.⁴⁸

Here in California, perhaps the most enduring legacy of Swain is that, in our law, as a constitutional matter, we continue to analyze alleged discrimination in the exercise of peremptory challenges under Batson and Wheeler (with their focus on intent to discriminate) separately from the method of assembling the jury venire (where we look for systematic exclusion but do not recognize statistical disparities as sufficient to establish a prima facie case of constitutionally impermissible discrimination). (See People v. Bell (1989) 49 Cal.3d 502, 527–528 (Bell).) Bell holds that, in cases where defendants seek to show a violation of the cross-section principle based on underrepresentation of protected groups in the venire, a “ ‘defendant does not discharge the burden of demonstrating that the underrepresentation was due to systematic exclusion merely by offering statistical evidence of a disparity․ [He] must show, in addition, that the disparity is the result of an improper feature of the jury selection process.’ ” (People v. Henriquez (2017) 4 Cal.5th 1, 20, quoting People v. Burgener (2003) 29 Cal.4th 833, 857.)

In dissent in Bell, Justice Broussard took the position that a showing of statistical underrepresentation of minorities in the jury venire, alone, is enough to make out a prima facie case of systematic exclusion, even if it is produced by facially neutral methods of selection. (Bell, supra, 49 Cal.3d at pp. 562–574 (dis. opn. of Broussard, J.).) According to him, “[t]he right of a representative cross-section demands the result that venires be truly representative of the community, at least to the extent that practical reality permits.” (Id. at p. 572.) Relying on Norris and Yick Wo, Justice Broussard pointed out that “[s]tates have persistently used apparently neutral standards to exclude minorities from juries,” as illustrated by the use of poll taxes and literacy tests in the Jim Crow South to achieve that end. (Bell, supra, 49 Cal.3d at p. 573 (dis. opn. of Broussard, J.).) In his view, it is “inconsistent with the representative cross-section right ․ and the numerous federal and California cases interpreting that right for almost 50 years” to hold that systematic exclusion requires a showing of some impermissible feature of an otherwise neutral selection process. (Id. at p. 574.)

D. The Lessons of History

Having reviewed the pertinent history in considerable detail, I believe there are some lessons to be learned that help illuminate the statutory interpretation question before us.

1. Representative Cross-Section Analysis and Discriminatory Impact Versus Discriminatory Intent

The use of peremptory strikes is a discretionary “practice [that] makes it easier for those to discriminate who are of a mind to discriminate” (Avery, supra, 345 U.S. at p. 562), and as such, is only the latest in a long line of discretionary tools available to any prosecutor who seeks to tap perceived racial biases as a way to gain advantage in criminal cases. Long protected in our law as a matter of custom and tradition, the peremptory strike is particularly well suited for this purpose because its summary nature allows free play for implicit bias through the use of stereotypes and hunches. Even before Justice Marshall warned of that danger in his Batson concurrence, the Norris line of cases in the 1930s taught that, rather than try to ferret out subjective discriminatory motive—which is easily masked, often by simple denial—objective evidence based on statistics can provide the clearest evidentiary basis for inferring discrimination, and thus shift the burden of proof to the state to explain racial disparities in those who are chosen for jury service.

California was once a leader in attacking this problem. A decade before Batson, our Supreme Court adopted a reading of article I, section 16 of the California Constitution under which the race-based use of peremptory challenges by a prosecutor directly harms the defendant—and is therefore an act taken “towards” the defendant “based on his race”—because it deprives him of a fair and impartial jury. That has important implications for purposes of our statutory interpretation inquiry here. In California, under Wheeler, we are engaged in a search for whether the jury reflects a representative cross-section of the community. Though, over time, Wheeler’s three-step remedial test for “group bias” has, as a practical matter, merged into the three-step test for discriminatory intent under Batson, the foundation for analyzing who is being injured is set by Wheeler, not Batson.

In construing the RJA, consider the issue from the standpoint of duty breached and how that breach causes injury. Under the RJA, a listed group of official actors (the “[j]udge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror”) all have a duty not to commit certain prohibited acts (“exhibit[ions]” of “bias”) against the defendant based on race (“towards the defendant because of the defendant's race, ethnicity, or national origin”). (§ 745, subd. (a)(1).) When race-based use of peremptory challenges is claimed, the alleged duty breached (an exhibition of bias based on race) by a prosecutor (a covered official actor) has allegedly caused the deprivation of the defendant's right to a fair and impartial jury (violating a legal protection afforded by statute to the defendant). In outlining this rather straightforward textual analysis, the background law I believe we must assume the Legislature expects us to apply is the law of California under Wheeler, not federal law under Batson.

It is a mistake to assume that, in the summer of 2020, the Legislature wished to address race-based peremptory challenges solely by tinkering with Batson’s mode of equal protection analysis by statutory update under Code of Civil Procedure section 231.7. Certainly, the Legislature had improvements to Batson in mind, and the tinkering represents significant reform. But it seems evident to me the Legislature had more in mind at that moment in time. For many decades in the law of race discrimination in jury selection, going back to Norris, there has been an ongoing debate in the high court's equal protection jurisprudence about discriminatory impact evidence versus evidence of discriminatory intent.⁴⁹ It seems to me the Legislature has aligned California in favor of the impact side of this debate. Swain takes a stage-by-stage approach to jury selection, confining Norris’s statistics-based prima facie test to steps in the jury selection process upstream from peremptory challenges. We still adhere to that approach in California, constitutionally. (See Bell, supra, 49 Cal.3d 502.) By statute, the RJA appears to have reset how we should be thinking about all of this, and in doing so, its precursor is Norris, not Swain.

If the legislative findings accompanying the original enactment of the RJA teach us anything, it is that the dissenting points of view in modern equal protection cases involving racial discrimination in the enforcement of the criminal law (e.g., McCleskey, supra, 481 U.S. at pp. 320–366 (dis. opns. of Brennan, J. & Blackmun, J.) provide more insight into the legislative intent behind the RJA than do majority opinions in this body of jurisprudence. Thus, in my view, the dissents from Justice Goldberg in Swain and from Justice Broussard in Bell urge that we should be looking to discriminatory impact, not just discriminatory treatment. Recognizing that we are now dealing with a statutory concept of racial bias that is untethered to Swain, these two opinions provide better guides to the Legislature's likely intent than does adherence to the cramped evidentiary focus of Batson/Wheeler analysis.

In this respect, the RJA goes beyond both Wheeler and Batson. I read it as a bold effort to reclaim, by statute, the national leadership role California played when, in Wheeler, our Supreme Court devised a way to breathe new life into Strauder without running afoul of Swain. But the approach the Legislature took in the RJA, in a first effort of this kind anywhere in the United States, is more ambitious than Wheeler. The evidentiary inquiry under the RJA is plainly broader than the three-step remedy framework in Wheeler (which Batson simply borrowed). That remedial framework confines its focus to the treatment of prospective jurors in the picking of a jury for a “particular case on trial” (Wheeler, supra, 22 Cal.3d at p. 282), which is why Wheeler and Batson ended up merging in practice.

In describing the outline for what has come to be known as comparative juror analysis in the Batson/Wheeler framework, Wheeler speaks of statistical proof with disfavor, viewing it as pertinent only to “earlier stage[s] in the jury selection process, i.e., whether the master list or the grand or petit jury venire constitutes a representative cross-section of the community[,]” and of no utility in “demonstrat[ing] racial motivation in the striking of blacks from a petit jury.” (Wheeler, supra, 22 Cal.3d at p. 279.)⁵⁰ On this point, Wheeler preserves the disaggregated approach to discrete stages of the jury selection process taken in Swain and, analytically, continues to focus on an ever-elusive search for subjective discriminatory purpose. Because there is so much discretion built into the process of jury selection, particularly at the peremptory challenge stage, the Wheeler court concludes that it is “ ‘virtually impossible’ for statistical decision theory to demonstrate racial motivation in the striking of blacks from a petit jury.” (Ibid.)

The logic is sound, but only if our goal is to uncover subjective “racial motivation”—a frame of analysis the Legislature has indicated time and again that it seeks to abandon, telling us so in statutory language and in uncodified findings, emphatically enough that the message might as well be in all capital letters. And on this overarching issue, the RJA expressly rejects Wheeler’s dismissive attitude toward statistical proof. (§ 745, subd. (c)(1).) Harkening back to the Norris era—when the high court showed its greatest commitment to enforcement of Strauder and dismantled the intent-to-discriminate jurisprudence of the Jim Crow era by creating the systematic exclusion test—the RJA affirmatively endorses the use of statistics.

By taking discriminatory purpose out of the calculus, the RJA and Code of Civil Procedure section 231.7 both necessarily focus on the impact of the exercise of peremptory challenges on the jury's demographics. This allows the lawyers on both sides to continue to pursue their natural tactical interests in using peremptory strikes, which is an inevitable feature of the adversary process, as Justice Evans astutely points out in her Hazlett dissent. (Hazlett, supra, ___ Cal.5th at p. ___ [2026 WL 2527137 at p. *86] (dis. opn. of Evans, J.).) But at the same time, the RJA and Code of Civil Procedure section 231.7, read collectively, now impose on all counsel a statutory duty to refrain from undermining the court's objective of seating a jury that reflects a representative cross-section of the community. Creating a statutory duty that enlists counsel in the court's mission to achieve impartial justice is not a particularly novel or radical idea, but it does extend Wheeler—with its foundation in representative cross-section analysis—more fully to its logical conclusion.

To put a sharper point on this, once we take full stock of how the law of race discrimination in jury selection has evolved since Strauder, the most critical thing to appreciate is that in 1978 Wheeler broke with a century of equal protection precedent (the high court pivoted the other way in Holland), while preserving all of the trappings of the Jim Crow era because of its continued analytical focus on prosecutorial motivation under the test for “group bias.” The RJA and Code of Civil Procedure section 231.7, when read together, complete Wheeler’s historic break from post-Strauder equal protection jurisprudence by abandoning the intent to discriminate doctrine.

2. Summary of What We Can Learn from the History

My bottom-line conclusion is this: Only when read in combination do the RJA's statutory scheme and Code of Civil Procedure section 231.7’s statutory scheme adopt all of the strongest procedural correctives that surfaced in the mid-1930s Strauder case law—a point in time when the high court developed its systematic exclusion test and showed the greatest commitment to vigorous enforcement of Strauder’s antidiscrimination principle. In the Jim Crow era, strictly enforced rules impeding access to evidence went hand in hand with the presumption of regularity governing official conduct; the rules governing the burden of proof; and highly deferential appellate review of trial court fact finding—with all of these rules applying under the banner of the intent to discriminate doctrine.

Things changed in the mid-1930s. The RJA and Code of Civil Procedure section 231.7, when read together, adopt similar reforms to those adopted in the Norris era (de novo review; statistical means of proving discrimination by circumstantial evidence) and address many of the same problems that have been obstacles to enforcement of Strauder since the 19th century (the presumption of correctness as an impediment to proving discrimination; no collateral review in habeas proceedings; lack of access to counsel). That is ultimately why, in my view, after considering the lessons history teaches, these pioneering statutes must be construed to work in harmony.

How, as a practical matter, do they work together? Quite simply, as follows. Even if a prosecutor strikes a prospective juror by peremptory challenge in a manner that is not presumptively proscribed under Code of Civil Procedure section 231.7, the peremptory challenge might still constitute a violation of the RJA, if, in light of the circumstances, the defendant can prove it was exercised “on the basis of” his race. (§ 745, subd. (a).) Because of the absence of any presumption of invalidity and the need to make a prima facie case, proving a violation under the RJA will be harder than it would be under Code of Civil Procedure section 231.7, but the RJA should remain available as a catchall mechanism, since it is impossible to say that the listed presumptive invalidity scenarios in Code of Civil Procedure section 231.7, subdivisions (e) and (g), will always detect disguised racial bias. When the two statutory schemes are read together, statistics may be part of the “totality of the evidence” under the RJA (§ 745, subd. (h)(1)) and the “totality of the circumstances” under Code of Civil Procedure section 231.7 (Code. Civ. Proc., § 231.7, subd. (d)(1)).

To use a concrete example, in a case where the disputed exercise of a peremptory challenge is against the sole member of a particular ethnic group in the venire, resulting in an all-white jury, there may well be an antecedent question about why there was just one person of color in the venire. Under the siloed analysis we have inherited from Swain, that antecedent question is irrelevant as a constitutional matter under Batson/Wheeler. But under a statutory analysis pursuant to the RJA and Code of Civil Procedure section 231.7, it is not—or at least it should not be, if we correctly read the statutes in tandem. The specificity of Code of Civil Procedure section 231.7 and the generality of the RJA, in short, should be read and applied as complementary means to the same end—identifying unconscious bias, which is the overarching goal of both statutory schemes.

We now know, for example, that even if a prosecutor fails to rebut the presumption of invalidity under Code of Civil Procedure section 231.7, subdivision (d)(2), there remains the further question whether the totality of the circumstances test has been met under subdivision (d)(1) of that statute. (People v. SanMiguel (2026) 20 Cal.5th 254, 283–288.) I see no reason why the inverse is not also true: Where the presumption of invalidity has been rebutted as to one or more proffered reasons for a peremptory strike, the totality of the circumstances might still suggest to an objective observer that unstated discrimination was a factor in the exercise of a peremptory challenge. That ultimate question will always turn on all the surrounding circumstances. And in the process of “inferential reasoning” (SanMiguel, at p. 283) courts must rely upon when addressing subtle and difficult questions of unconscious bias, statistical evidence—as a potentially illuminating objective source of proof—may be relevant. It might provide little help in some situations, but it might speak loudly in others, as was the case in McCleskey, supra, 481 U.S. 279.

Finally, moving from substance to procedure, the RJA has a discovery mechanism that is specifically designed to require disclosure of information bearing on claims of race discrimination in criminal proceedings. (See Young, supra, 79 Cal.App.5th at pp. 162–163.) Although Code of Civil Procedure section 231.7 has no analogous mechanism, information generated by the RJA's disclosure process may be relevant to the totality of the circumstances question that is ultimately the focus of both statutes. Prosecutorial notes and training manuals provide a good example. (See, e.g., Miller-El, supra, 545 U.S. at p. 266 [“The prosecutors took their cues from a 20-year-old manual of tips on jury selection, as shown by their notes of the race of each potential juror”]; cf. Amadeo v. Zant (1988) 486 U.S. 214 (following discovery of memorandum in files of jury commissioners outlining methods designed to underrepresent black people and women on grand and traverse jury venire, habeas corpus proceedings were allowed to proceed).

The RJA also expressly permits claimed violations to be raised postconviction by habeas petition under section 1473; Code of Civil Procedure section 231.7 has no analogous mechanism. If Code of Civil Procedure section 231.7 serves as the only vehicle by which criminal defendants may raise statutory claims attacking race-based prosecutorial use of peremptory challenges, this sole category of racially discriminatory conduct in criminal cases is the only one that would lie beyond the reach of section 1473 postconviction petitions authorized by the RJA. I find it unlikely that the Legislature intended such an anomalous result. It would be contrary to one of the principal lessons we can learn from the evolution of the law of race discrimination in jury selection: Postconviction review is sometimes critical, since lack of effective counsel has historically been an obstacle to meaningful enforcement of Strauder claims.

This procedural impediment is certainly different in nature than it once was (see ante, at p. 20, fn. 25), but the Legislature clearly views it as still a problem. In this case, Haney, who claims that all African American prospective jurors were swept from his jury by prosecutorial peremptory strike, was foreclosed from pursuing a Batson/Wheeler claim in federal court because of his counsel's failure to object on that ground in a timely manner. (Haney v. Adams (9th Cir. 2011) 641 F.3d 1168, 1173.) We will never know whether, by invoking the RJA, he might have been able to prove the allegation of racially discriminatory use of peremptory challenges he makes in these section 1473 proceedings, but I think he should have been allowed to try.

IV. Conclusion

Under article VI, section 13 of the California Constitution, there is a fundamental boundary that circumscribes what the Legislature can do in directing appellate courts to order reversals for “all error, no matter its scope or actual effects.” (People v. Bankston (2026) 19 Cal.5th 786, 876; see People v. Simmons (2023) 96 Cal.App.5th 323, 340–345 (dis. opn. of Yegan, J.).) On an issue that is plainly within this boundary (Wheeler, supra, 22 Cal.3d at p. 283 [denial of the right to a fair and impartial jury is per se reversible]) and central to the Legislature's expressed racial justice mission under the RJA, the Attorney General has argued that the RJA does not apply at all. Time will tell whether, in the view of the Legislature, this ahistorical statutory interpretation position—which is now the law, after Hazlett—is consistent with the level of judicial commitment to uprooting racial bias in criminal cases that the Legislature has repeatedly stated in legislative findings it wants to see in the application of the RJA.

In the meantime, we would do well to remember what our Supreme Court said in Wheeler, quoting the “seminal [words of] Justice Black ․ for a unanimous [high] court [in Smith, supra, 311 U.S. at p. 130]: ‘It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.’ ” (Wheeler, supra, 22 Cal.3d at p. 267.) “In that war,” the Wheeler court said, “the courts cannot be pacifists.” (Ibid.) In the RJA, our Legislature has said the same thing.

Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Eric Flemming

Counsel: Monte Haney, in pro per.; and Kaiya Pirolo, under appointment by the Court of Appeal, for Petitioner.

Rob Bonta, Attorney General, Lance Winters and Jeffrey M. Laurence, Assistant Attorneys General, Donna M. Provenzano and Melissa A. Meth, Deputy Attorneys General for Respondent.

FOOTNOTES

1.   Undesignated statutory citations are to the Penal Code.

2.   We publish this introductory portion of the opinion to give context to Justice Streeter's separate concurrence. The remainder of the court's opinion does not meet the standards for publication (California Rules of Court, rule 8.1105(c)), so it is unpublished.

3.   The September 12, 2024, request for judicial notice of certain records from Haney's federal habeas petition and the California Supreme Court case In re Wilkins, S284457 is denied because the documents are unnecessary to the resolution of this matter. (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 613, fn. 29.) Haney's request for judicial notice of the records in his direct appeal is also denied for the same reason.

4.   To avoid a “chaptering out” problem, the Legislature made the same changes to sections 745 and 1473 again in a second bill that was enacted later in the session. (See In re A.N. (2020) 9 Cal.5th 343, 356, fn. 5.) Because the Legislature stated its purpose for the changes in the earlier bill, we focus on that enactment.

5.   All further undesignated statutory citations are to the Penal Code, absent a special definition.

6.   I refer to race bias and racial discrimination within the meaning of the RJA, “in context, to refer not only to bias based on race, but also to bias based on ethnicity or national origin, consistent with the overarching prohibition in [section 745,] subdivision (a).” (People v. Barrera (2026) 19 Cal.5th 919, 977, fn. 9.)

7.   The Legislature enacted Code of Civil Procedure section 231.7 in August 2020 (Assem. Bill 3070; Stats. 2020, ch. 318, § 2), the Governor signed it in September 2020, and it went into effect January 1, 2021.

8.   It is not unusual in drafting statutes that the Legislature may add language for emphasis, rather than to add to a statute's substantive scope. (Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 858; People v. Olay (2023) 98 Cal.App.5th 60, 66, fn. 7.)

9.   See Du Bois, Black Reconstruction in America 1860–1880 (1935, 2007 ed.) pages 802, 811, 1159, 1450, 1517, 1760; Myrdal, An American Dilemma (1944) volume II, pages 139–141, 162; Woodward, The Strange Career of Jim Crow (1955, 2002 ed.) pages 19–20.

10.   See Kennedy, Race, Crime, and the Law (1997) pages 169–255 (Race, Crime, and the Law); Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004) pages 39–43.

11.   See Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels (1977) pages 177–193 (Jury Selection Procedures). This treatise by Professor Van Dyke, an influential scholar of jury selection practices in the 1970s, was cited repeatedly by our Supreme Court in Wheeler, supra, 22 Cal.3d at pages 258, 266, footnote 5; id. at page 273, footnotes 11, 13; id. at page 280, footnote 25. See also Race, Crime, and the Law, supra, pages 169–255 (devoting three of ten chapters and nearly a quarter of his 513-page treatise to the topic of “Race and the Composition of Juries”).

12.   A fourth case in this series is Ex parte Virginia (1880) 100 U.S. 339, which upheld the constitutionality of a provision in the Civil Rights Act of 1875 criminalizing racial discrimination in jury selection. But we may set that case aside. In the nearly 150 years since Ex parte Virgina came down, no subsequent prosecution has been brought under it, at least in the reported cases. (Schmidt, Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia (1983) 61 Tex. L.Rev. 1401, 1475 (Lost Promise of Strauder).)

13.   This statute was a carry-over from the pre-Civil War norm in all states. From the founding of the nation to the Civil War, limiting jury service to white male property owners was the rule. (See Waldrep, Jury Discrimination: The Supreme Court, Public Opinion, and a Grassroots Fight for Racial Equality in Mississippi (2010 ed.) (Grassroots Fight for Racial Equality in Mississippi), Appendices 1–3 [compiling constitutional provisions and statutes from all states in antebellum America limiting jury service to adult white males].) After the Civil War, demands for racial equality in jury service, just as much as racial equality in voting, were central to the thinking of the framers of the Fourteenth Amendment. (See Forman, Jr., Juries and Race in the Nineteenth Century (2004) 113 Yale L.J. 895, 898–902; id. at p. 895 [quoting Senator Charles Sumner, one of the framers of the Fourteenth Amendment, in an 1872 speech before Congress, “How can justice be administered throughout States thronging with colored fellow-citizens unless you have them on the juries?”].)

14.   Strauder, supra, 100 U.S. at p. 306 (“The true spirit and meaning of the amendments ․ cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish.”); id. at pp. 305–306.

15.   Strauder, supra, 100 U.S. at p. 307, quoting Slaughter-House Cases (1873) 83 U.S. 36, 71 (“ ‘No one can fail to be impressed with the one pervading purpose found in all the amendments, lying at the foundation of each, and without which none of them would have been suggested–we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.’ ”).

16.   At the time, the right to jury trial was not among the narrow set of rights deemed so “fundamental” as to be binding on the states under the Fourteenth Amendment's privileges and immunities clause. (See Slaughter-House Cases, supra, 83 U.S. at pp. 75–80.)

17.   The West Virginia Supreme Court took a narrow view of the Fourteenth Amendment, reading it as applicable only to the question of the federal citizenship rights of the formerly enslaved. (State v. Strauder, supra, 11 W.Va. at pp. 803–805.) The court cited and relied on Dred Scott v. Sandford (1857) 60 U.S. 393 as if it were still good law except on the citizenship issue. (State v. Strauder, at pp. 803–804.)

18.   At the time, federal jury selection rules followed a Reconstruction-era federal policy of allowing racially mixed juries, which was a sharp departure from the pre-Civil War norm nationwide. (Juries and Race, supra, 113 Yale L.J. at pp. 924–926.) The new policy, codified in the Civil Rights Act of 1875 (the statute whose validity was upheld in Ex parte Virginia, supra, 100 U.S. 339), was first instituted by military order in the occupied South during the early years of Reconstruction. (See Grassroots Fight for Racial Equality in Mississippi, supra, at pp. 152–156, Table 4.1.) Professor Forman has pointed out that this policy was designed to address, and for a time had a salutary effect on, the refusal of all white grand juries in the South to indict white perpetrators of Ku Klux Klan violence against formerly enslaved persons. (Juries and Race, at pp. 914–920.)

19.   Lost Promise of Strauder, supra, 61 Tex. L.Rev. at page 1440.

20.   See also Gibson v. Mississippi (1896) 162 U.S. 565, 580 (Gibson); Thomas v. Texas (1909) 212 U.S. 278, 282 (Thomas); Akins v. Texas (1945) 325 U.S. 398, 403 (Akins); Cassell v. Texas (1950) 339 U.S. 282, 287; cf. Wheeler, supra, 22 Cal.3d at page 277 (“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”).

21.   Lost Promise of Strauder, supra, 61 Tex. L.Rev. at page 1458.

22.   Martin v. Texas (1906) 200 U.S. 316, 319.

23.   Thomas, supra, 212 U.S. at p. 281.

24.   Tarrance v. Florida (1903) 188 U.S. 519; Thomas, supra, 212 U.S. at p. 282.

25.   Charley Smith v. Mississippi (1896) 162 U.S. 592, 601–602; Brownfield v. South Carolina (1903) 189 U.S. 426, 428.

26.   Gibson, supra, 162 U.S. at p. 584.

27.   If there is a familiar ring to this—an impediment to evidence gathering created by a presumption of regularity in official action, together with strict enforcement of the burden of proving intent to discriminate—it is because, procedurally, that was essentially the state of equal protection law in 2020 as applied to claims of race discrimination in the enforcement of criminal law, at least until the RJA changed things in California by statute. (See Young, supra, 79 Cal.App.5th at pp. 162–163 [discussing United States v. Armstrong (1996) 517 U.S. 456].)

28.   Carter v. Texas (1900) 177 U.S. 442; Rogers v. Alabama (1904) 192 U.S. 226.

29.   See, e.g., Neal, supra, 103 U.S. at page 396 (prisoner “whose life was at stake, and who was too poor to employ counsel of his own selection”); Lost Promise of Strauder, supra, 61 Tex. L.Rev. at page 1482 (“Strauder’s nondiscrimination principle was vitiated by the state courts’ concerted refusal to undertake fair inquiry into the methods of jury selection, by the state jury commissioners’ capacity to hide systematic racial exclusion behind ‘general asseverations,’ and by the ineptitude and passivity of the mostly white counsel for black defendants”).

30.   Many decades later, the problem persisted. (See, e.g., United States ex rel. Goldsby v. Harpole (5th Cir. 1959) 263 F.2d 71, 82 [“As Judges of a Circuit comprising six states of the deep South, we think that it is our duty to take judicial notice that lawyers residing in many southern jurisdictions rarely, almost to the point of never, raise the issue of systematic exclusion of Negroes from juries.”]; id. at p. 82 [“[T]he very prejudice which causes the dominant race to exclude members of what it may assume to be an inferior race from jury service operates with multiplied intensity against one who resists such exclusion․ [¶] ․ Such courageous and unselfish lawyers as find it essential for their clients’ protection to fight against the systematic exclusion of Negroes from juries sometimes do so at the risk of personal sacrifice which may extend to loss of practice and social ostracism.”].)

31.   Andrews v. Swartz (1895) 156 U.S. 272; In re Wood (1891) 140 U.S. 278, 279.

32.   Powell laid the groundwork for Gideon v. Wainwright (1963) 372 U.S. 335, approximately three decades later.

33.   See Norris, supra, 294 U.S. at pages 589–590 (“The question is of the application of this established principle to the facts disclosed by the record. That the question is one of fact does not relieve us of the duty to determine whether in truth a federal right has been denied․ If this requires an examination of evidence, that examination must be made. Otherwise, review by this Court would fail of its purpose in safeguarding constitutional rights.”). Today, we would term this de novo review of a mixed question of law and fact in circumstances where the question under review implicates a matter of federal constitutional right. After Batson, the high court eventually returned to a standard of deferential review. (See Hernandez v. New York (1991) 500 U.S. 352.)

34.   See Eubanks v. Louisiana (1958) 356 U.S. 584; Cassell v. Texas, supra, 339 U.S. 282; Avery v. Georgia (1953) 345 U.S. 559 (Avery); Patton v. Mississippi (1947) 332 U.S. 463, 467; Smith v. Texas (1940) 311 U.S. 128 (Smith); Pierre v. Louisiana (1939) 306 U.S. 354; Hill v. Texas (1942) 316 U.S. 400. Several of these cases were summary reversals, see Brunson v. North Carolina (1948) 333 U.S. 851; Hale v. Kentucky (1938) 303 U.S. 613, 614; Hollins v. Oklahoma (1935) 295 U.S. 394.

35.   E.g., Avery, supra, 345 U.S. at page 562 (“Petitioner's charge of discrimination in the jury selection in this case springs from the Jury Commissioners’ use of white and yellow tickets. Obviously that practice makes it easier for those to discriminate who are of a mind to discriminate.”); Pierre v. Louisiana, supra, 306 U.S. at page 540 (grand jury venire was required to be chosen from annually compiled general list, which had to be “well mixed” by statutory mandate, but jury commissioner followed practice of choosing first 20 names from supplemental list comprised only of white persons, so he never reached any names on the general list); Smith, supra, 311 U.S. at page 132 (“Where jury commissioners limit those from whom grand juries are selected to their own personal acquaintance, discrimination can arise from commissioners who know no negroes as well as from commissioners who know but eliminate them.”).

36.   This approach echoed Yick Wo, supra, 118 U.S. 356. See Washington v. Davis (1976) 426 U.S. 229, 241 (acknowledging that the statistics-based Norris test for “systematic exclusion” based on a prima facie showing of “disproportionate impact” descends from Yick Wo).

37.   See Hernandez v. Texas (1954) 347 U.S. 475, 478 (rejecting claim that discrimination for purposes of Strauder is limited only to African Americans; any cognizable minority group constituting a “distinct class” within the community is covered).

38.   See also People v. Carter (1961) 56 Cal.2d 549, 568; People v. Sirhan (1972) 7 Cal.3d 710, 753; In re Wells (1971) 20 Cal.App.3d 640, 649; Ganz v. Justice Court (1969) 273 Cal.App.2d 612, 620.

39.   See also Taylor v. Louisiana (1975) 419 U.S. 522, 527; Peters v. Kiff (1972) 407 U.S. 493, 500.

40.   Brown v. Allen was a groundbreaking federal habeas corpus case which rejected the traditional rule—dominant in the Jim Crow era—requiring federal habeas courts to give absolute deference to prior decisions by state courts. (See Wright v. West (1992) 505 U.S. 277, 287.) Eventually, the high court significantly constrained federal habeas corpus review of claims alleging race discrimination in jury selection (see, e.g., Teague v. Lane (1989) 489 U.S. 288; Wainwright v. Sykes (1977) 433 U.S. 72), and in the 1990s Congress placed additional limits on that avenue of review (28 U.S.C. § 2254(d)). The important takeaway point here is not that Brown v. Allen created a path of federal habeas review, but that in the Norris era postconviction collateral review was made available as a mode of pursuing Strauder claims.

41.   Swain, supra, 380 U.S. at p. 206; Castaneda v. Partida (1977) 430 U.S. 482; Alexander v. Louisiana (1972) 405 U.S. 625; Turner v. Fouche (1970) 396 U.S. 346.

42.   See, e.g., People v. Newton (1970) 8 Cal.App.3d 359, 390 (Newton) (applying Swain and holding its exception was not met); In re Wells, supra, 20 Cal.App.3d at p. 647 (same).

43.   See Gilliard v. Mississippi (1983) 464 U.S. 867, 868 (dis. opn. of Marshall, J.); see also Thompson v. United States (1984) 469 U.S. 1024 (dis. opn. of Marshall, J.); Williams v. Illinois (1984) 466 U.S. 981 (dis. opn. of Marshall, J.); McCray v. New York (1983) 461 U.S. 961 (dis. opn. of Marshall, J.) (McCray).

44.   See Batson, supra, 476 U.S. at p. 82, fn. 1.

45.   Professor Van Dyke's treatise was featured prominently in this discussion, as noted above. (Ante, at p. 10, fn. 7.) For an example of his views, see Jury Selection Procedures, at page 19 (“As recently as World War II, it was easy for most Americans to consider the privilege of making important governmental decisions as the prerogative of whites (and usually males), and thus accept juries that excluded blacks and women. Only in the first post-war decade—which saw the integration of the armed forces, the first civil rights legislation, and the rejection of segregation as unconstitutional—did national policy begin to insist that blacks have the same rights as whites.”).

46.   The high court referenced Wheeler’s “version of this standard” to demonstrate the practical workability of this kind of approach (Batson, supra, 476 U.S. at p. 99, fn. 23), but made no attempt to instruct lower state or federal courts as to “how best to implement” the Batson framework (id. at p. 99, fn. 24).

47.   See Georgia v. McCollum, supra, 505 U.S. 42 (defendant need not be of same race as excluded juror; discriminatory exercise of peremptory challenges by defense constitutes state action; prosecution has standing to object to discriminatory use of peremptory challenges by defense); Powers v. Ohio (1991) 499 U.S. 400, 416 (defendant has third party standing to object to discrimination against prospective jurors).

48.   Central to Holland’s rationale was a history-and-tradition-based theory of the peremptory challenge laid out in detail by the Swain court. As explained by the Holland court, “[t]he Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one ․” (Holland, supra, 493 U.S. at p. 480.) Tracing this theory of the peremptory challenge all the way back to Blackstone, just as the Swain court did, the Holland court further explained that the objective of neutrality has traditionally been accomplished by allowing each side to use peremptory challenges to eliminate perceived biases on each extreme in picking the trial jury. (Holland, at p. 481.) “[T]o say that the Sixth Amendment deprives the State of the ability to ‘stack the deck’ in its favor is not to say that each side may not, once a fair hand is dealt, use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side.” (Ibid.)

49.   The same debate is also taking place in adjacent areas of law where the high court has shown a level of commitment to the doctrine of discriminatory intent that we have not seen since the Jim Crow era. (See, e.g., Louisiana v. Callais (2026) ___ U.S. ___, ___ [146 S.Ct. 1131, 1152–1153] (voting rights); Students for Fair Admissions, supra, 600 U.S. at p. 206 (university admissions).)

50.   See Wheeler, supra, 22 Cal.3d at page 279 (Under methods of analysis proposed by both the defendant and amicus, a technique “commonly called statistical decision theory, has impressive credentials: the United States Supreme Court has given it increasing weight in the past decade” but it “has been criticized on the ground that it ‘involves complicated calculations resulting in answers that are difficult to visualize and evaluate,’ and that ‘the result is significantly affected by the choice of sample size.’ ”).

BROWN, P. J.

WE CONCUR: STREETER, J. GOLDMAN, J.