MOSK, J. I dissent. The majority err in holding that defendant was not denied his state constitutional right to trial by a jury drawn from a representative cross-section of the community. (Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (hereafter Wheeler).)
The majority also err in holding that defendant was not denied his federal constitutional right to equal protection of the laws. (U.S. Const., 14th Amend.; Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (hereafter Batson).) Batson applies to all cases pending on direct appeal when it was decided. (Griffith v. Kentucky (1987) 479 U.S. 314 [93 L.Ed.2d 649, 107 S.Ct. 708].) This is such a case.
The majority pay lip service to the Batson rule, but in fact violate both its letter and its spirit. On this issue, however, the federal courts—not the majority—have the last word. I therefore recommend that defendant seek federal review of the majority’s erroneous holding that he was not denied his Batson rights when the prosecutor deliberately struck all the Blacks, all the Asians, and all the Jews from the jury that condemned him to death.11 would hope that federal courts will be sensitive to the racial overtones of this result.
I
Wheeler and Batson established a number of now-familiar principles that govern this case. First, Wheeler held that neither party to a criminal trial may use peremptory challenges to exclude from the jury, solely on the ground of a presumed “group bias,” all or most members of a cognizable group distinguished on racial, religious, ethnic or similar grounds. (22 Cal.3d at pp. 276-277.) Somewhat more narrowly, Batson held that the prosecutor in such a trial may not use peremptory challenges to exclude from the jury members of the defendant’s race, solely on account of their race. (476 U.S. at pp. 96-99 [90 L.Ed.2d at pp. 87-90].)
[1255]Second, both courts prescribed a procedure for implementing the rights thus declared. Wheeler provided that if a party believes his opponent is using peremptory challenges to exclude prospective jurors on the ground of group bias, he must make a record of the circumstances, raise a timely objection, show that the excluded jurors are members of a cognizable group, and present a prima facie case that such jurors are being challenged on the ground of group bias. If the court finds that a prima facie case has been made, the burden shifts to the other party to show if he can that he exercised such peremptory challenges on grounds of “specific bias,” i.e., on grounds reasonably relevant to the particular case on trial or its parties or witnesses. If the court finds that the burden of justification is not sustained, it must dismiss the jurors selected and quash the venire. (22 Cal.3d at pp. 280-282.)
Batson similarly provided that if a defendant believes the prosecutor is using peremptory challenges in a purposefully discriminatory manner, he must show that he is a member of a cognizable racial group, that the prosecutor has peremptorily struck members of that race from the venire, and that these facts and any other relevant circumstances raise an inference that the prosecutor is using his peremptory challenges to exclude prospective jurors on the account of race. (476 U.S. at p. 96 [90 L.Ed.2d at pp. 87-88].) If the trial court finds that the defendant has made a prima facie case of discrimination, the burden shifts to the prosecutor to give if he can a “neutral explanation” for the challenges that is “related to the particular case to be tried.” (Id. at p. 98 [90 L.Ed.2d at p. 88].) If the court finds that the prosecutor has not sustained his burden, it may either disallow the discriminatory challenges or quash the venire. (Id. at p. 100, fn. 24 [90 L.Ed.2d at p. 90].)
Third, both this court and the United States Supreme Court have made it clear that peremptory challenges which operate to exclude cognizable groups from the jury cannot be justified by superficial, sham, or illegitimate reasons; accordingly, each court has directed trial judges to carefully evaluate both the bona fides and the sufficiency of any explanations offered to justify otherwise discriminatory challenges. Thus in a decision authored by Chief Justice Lucas reversing a judgment of death on Wheeler grounds, we recently reiterated that “Once a prima facie case has been shown, and an explanation tendered, the trial court must make a ‘sincere and reasoned attempt to evaluate the . . . explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the [counsel asserting the peremptory challenges] has examined members of the venire and has exercised challenges for cause or peremptorily, for “we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses [1256]belatedly contrived to avoid admitting acts of group discrimination.” ’ [Citations.]” (People v. Snow (1987) 44 Cal.3d 216, 222 [242 Cal.Rptr. 477, 746 P.2d 452].)
Similarly Batson declared that the prosecutor may not rebut the defendant’s prima facie case of racial discrimination merely by affirming his good faith or by denying that he had a discriminatory motive. (476 U.S. at p. 98 [90 L.Ed.2d at pp. 88-89].) Rather, the prosecutor must give “a ‘clear and reasonably specific’ explanation” of his reasons for exercising the peremptory challenges in question. (Id. at fn. 20.) The high court further declared that the prosecutor’s reasons for exercising peremptory challenges must be “ ‘legitimate reasons’ ” (ibid. [90 L.Ed.2d at p. 89]), and reiterated that it expected prosecutors to fulfill their duty to use such challenges “only for legitimate purposes” (id. at p. 99, fn. 22 [90 L.Ed.2d at p. 89]).
II
The record establishes that defendant is Black, codefendant Thomas Fields is Black, the victim was White, and defendant’s trial counsel is Jewish. In the course of the voir dire three Black prospective jurors were called to the jury box; all three were examined and passed for cause by all counsel; and the prosecutor then struck all three Blacks from the jury by peremptory challenge. There were also four Jewish prospective jurors; all four were examined and passed for cause; and the prosecutor struck all four from the jury by peremptory challenge. Finally, there were two Asian prospective jurors; both were examined and passed for cause; and the prosecutor struck both from the jury by peremptory challenge. The jury that was ultimately selected was all White, and included no Blacks, no Jews, and no Asians.
Before the jury was sworn both defendants objected to the exclusion of the nine minority jurors by a timely Wheeler motion. Counsel for defendant stated, “We do not have anyone from the Jewish community, we have no one from the Oriental community and we have no one from the Black community. If this area is composed of basically Caucasian, Blacks and Orientals,[2] two of those racial groups [have] been excluded. If this community is composed of people of the Christian faith, the Jewish faith, and possibly Buddhist, we have nobody from those [latter] two religious groups. Therefore, under these circumstances, we feel that the burden now shifts to the People to justify the exclusion of three definitely recognizable groups in the community and eliminating them from the panel, thereby depriving the [1257]defendants of the opportunity of a jury composed of a representative cross-section of the community.”
After some discussion of the proper scope of the motion, the court turned to the prosecutor and said, “Do you wish to respond?” Although the court thus failed to find expressly that defendant had made a prima facie case of discrimination against the minority jurors on the ground of group bias, we may “fairly deem that the inquiry implied such a finding, and shifted the burden of justification to the prosecutor. Indeed, after Wheeler it is disingenuous to treat such inquiries as anything else.” (People v. Turner (1986) 42 Cal.3d 711, 719 [230 Cal.Rptr. 656, 726 P.2d 102].)3The majority agree the trial court found that defendant made the necessary prima facie case. {Ante, p. 1217.)
A. The Jewish Prospective Jurors
The prosecutor undertook to justify each of the peremptory challenges in question. He began, however, by denying that Jews are a cognizable group. In this he was wrong. As defense counsel correctly asserted, Jews are a cognizable group for W'heeler purposes whether viewed from a religious, ethnic, or cultural perspective, or a combination of these. The long history of anti-semitism teaches this lesson all too clearly.
In any event, the prosecutor proceeded to offer explanations for his peremptory challenges of all the Jews on the panel. First he declared that “I have friends who are Jewish and have them to my home and I am entertained at their homes,” and “some of the more diligent prosecutors in our office” are Jews. This ritual recitation of the hoary excuse, “some of my best friends are Jewish,” is obviously insufficient as a matter of law. As the United States Supreme Court explained in Batson, the prosecutor does not rebut a prima facie case of group discrimination merely by affirming his good faith or denying that he personally intended to discriminate. (476 U.S. at p. 98 [90 L.Ed.2d at p. 88].) Defense counsel was therefore correct when he objected that “the record should not be filled with off-hand social pronouncements by the prosecutor.”
The prosecutor then offered a number of reasons for each of his peremptory challenges of the four Jewish prospective jurors. They fall generally into two categories: “objective” reasons based on matters of record, i.e., on answers given by the prospective jurors to questions asked of them on voir dire; and “subjective” reasons based on matters outside the record, i.e., on [1258]the prosecutor’s perception or opinion of the demeanor, personality, or appearance of the prospective jurors. For our purposes these are sharply different categories: both the trial court and a reviewing court can test the prosecutor’s objective reasons against the record; but his subjective reasons are largely unverifiable by the trial court, and are wholly beyond appellate review. Accordingly, in the analysis that follows I shall assess the prosecutor’s objective reasons in light of the record, but shall simply note his subjective reasons for later discussion. (Part IV, post.)
The first Jewish prospective juror discussed by the prosecutor was Joanne Smalley. The prosecutor began by representing to the court that “at the time I excused her I didn’t know that she was Jewish.” The record casts serious doubt on this assertion: during her voir dire examination Mrs. Smalley expressly confirmed that as she had stated in her juror questionnaire, she is a member of the “Temple Beth Shalom Sisterhood,” and said she attends temple services frequently. The prosecutor, of course, had a copy of her questionnaire and was present when Mrs. Smalley acknowledged these facts in open court.
The prosecutor’s sole objective reason for excluding Mrs. Smalley was that she allegedly said “she was opposed to the death penalty or leaned that way,” and “She didn’t know if she’d follow the law and the evidence or not if she found [the death penalty] to be appropriate . . . .”4The record shows the prosecutor’s assertion to be part exaggeration, part misstatement. Mrs. Smalley squarely told the prosecutor on voir dire that “I’m not definitely for or definitely against the death penalty.” When asked to characterize her view she replied that although she had never previously had to make a decision on the question, she would probably “lean towards not being for” the death penalty. But she repeatedly explained that she would nevertheless follow the law and the evidence on the question. Thus the court asked her, “If you felt after hearing all the evidence in this case and the instructions on the law that the death penalty was an appropriate penalty as to one or both defendants, would you have any reluctance voting in favor of it?” She replied, “I don’t believe so.” The prosecutor thereafter asked her, “Can you picture yourself voting for [the death penalty] if that would be the appropriate penalty for one or both of these defendants?” She flatly answered, “Yes.”
By contrast, the prosecutor did accept similar assurances from other jurors who had scruples about imposing the death penalty but said they [1259]could do so in an appropriate case. Thus Juror Luis Reguero5 admitted, “I would be reluctant” to vote for death, but said he could so vote even though “I may not like the decision.” Alternate Juror Rose Tucker conceded, “I am definitely more weighted towards the life imprisonment,” and explained that “I most likely tend toward life imprisonment just because I think life is important”; but she too said that she could nevertheless vote for death in an appropriate case. Neither was challenged by the prosecutor.
The rest of the voir dire examination of Mrs. Smalley was unremarkable and showed her to be a fully qualified juror with no perceivable bias about the case. She was a licensed real estate agent and her husband was a high school teacher. Indeed, other information elicited from her during voir dire was of the type that is ordinarily thought to be favorable to the prosecution. Thus Mrs. Smalley disclosed that a local police officer was a “close friend” of hers whom she had known for 12 or 13 years and whom she often saw socially; she also had a cousin who was a deputy sheriff.
The prosecutor’s remaining reasons for excluding Mrs. Smalley were wholly subjective. He claimed she was “a very nervous person,” that “she gave the defendants a very noticeable smile” when she was introduced to them and to counsel, and that “she looked to me to be a very sympathetic person, and one that would make a poor juror.” The prosecutor did not explain any of these remarks, and none, of course, is verifiable on the record.
The second Jewish prospective juror discussed by the prosecutor was Charles Kirstel. As an objective reason for challenging him the prosecutor stated that Mr. Kirstel “felt the death penalty was not a deterrent.” This is a mischaracterization of Mr. Kirstel’s view. What he actually said was that “purely [as] a general statement” he did not believe the death penalty is a deterrent “to crime in general,” explaining, “I mean in the sense that because of it crime has decreased.” Surely that was an unexceptionable observation. At numerous points in the voir dire Mr. Kirstel declared himself willing and able to vote for the death penalty if it appeared on the evidence to be the appropriate penalty in the case at bar.6
The prosecutor next asserted that Mr. Kirstel indicated “he would be more inclined to follow his own idea of what he should be doing than he [1260]would be to follow the law from the judge.” The transcript is otherwise. The court informed Mr. Kirstel, as it informed the other members of the panel, that “At the time you take the oath you don’t know what the evidence is and you haven’t heard the law. But you are nevertheless bound to follow the law and apply it to the case even though you may not agree with it or think it should be something other than it is,” and inquired whether he had “any hesitancy about that at all?” Mr. Kirstel squarely replied, “No.” He gave the same clear answer to a number of similar questions during the remainder of the voir dire. When the prosecutor pressed the inquiry, Mr. Kirstel explained that he drew a distinction between following the instructions on the law—which he declared himself fully willing and able to do—and making up his own mind on the facts—which of course would have been both his right and duty as a juror.
The only other objective reason oifered by the prosecutor was that Mr. Kirstel had “someone in his family who was a lawyer . . . .” The reference is to a grandson of Mr. Kirstel who was then in practice as a workers’ compensation attorney in Sacramento. The prosecutor never explained, however, how this fact could conceivably bias Mr. Kirstel either for or against either party in this case—a murder trial in San Jose. Moreover, the prosecutor voiced no such objection when he accepted Alternate Juror Marie Travis, who had much closer family ties with lawyers: her two brothers were practicing attorneys, one even having served as a criminal defense counsel.
The prosecutor’s remaining reasons for challenging Mr. Kirstel were subjective. He stressed that Mr. Kirstel was “an excessive [in excess of?] seventy years old,” that “He looked me to be a very tired person,” that “there was a great deal of rapport between him and one of the defense counsel,” that he hesitated in answering some of the court’s questions, and that he was “somewhat more friendly-appearing to the defendant in the case, more so than the average juror was.” Again the prosecutor did not explain any of these remarks, and none is verifiable.
The third Jewish prospective juror discussed by the prosecutor was Esther Sobel. As his first objective reason for striking her he said, “I had some feelings about her intelligence. I asked her a question about someone who’s related to me that worked for Sunnyvale School District for many years and she said yes, she thought she remembered him. The person I was talking about was a female . . . she got somewhat confused, she didn’t seem to be able to grasp things well.” The record does not support this criticism of Mrs. Sobel. Contrary to the prosecutor’s claim, Mrs. Sobel did not say “she thought she remembered” the person he asked her about; indeed, she explained that she could not remember particular names of her former co[1261]workers because it had been nine years since she had retired. In addition, the prosecutor’s question operated as a trap, because he asked if she knew “Joe Gardner,” a name that anyone hearing it would take to be male rather than female.7
Nor does the record support the prosecutor’s doubts about Mrs. Sobel’s “intelligence.” Rather, it discloses she was a former school librarian, held not one but two master’s degrees, was currently studying both Hebrew and French, was both a violinist and a violist, and played in a classical string quartet. The prosecutor did not question the “intelligence” of a number of jurors he accepted who had far fewer intellectual accomplishments; for example, several had no education beyond high school.
The prosecutor next stated, “She had real questions about—she seemed to hesitate when we got into the subject of race. . . . she said it was just not an issue with her. I had a problem with that.” The record shows, however, that Mrs. Sobel did not in fact “hesitate” when asked about the subject of race; rather, she answered the relevant questions directly and succinctly, demonstrating—as the prosecutor himself described—that race “was just not an issue with her.”8 And the prosecutor never said why Mrs. Sobel’s absence of racial prejudice was a “problem” for him, although an unflattering explanation of his motive can be conceived.
The prosecutor then referred to two instances in which Mrs. Sobel had allegedly unsatisfactory experiences with the police. First he asserted that “She said the previous police department she dealt with did not do a good job. She was very critical of them.” The reference is to an instance in which Mrs. Sobel and her husband asked the local sheriff to look into certain activities of their town manager that they believed were illegal; her entire remark on the topic was, “Well, he investigated it and we felt that he didn’t [1262]do a very good job.” In these circumstances it is a gross exaggeration to say she was “very critical” of the sheriff’s department. On the contrary, she immediately added that “whenever we’ve needed them they’ve been very helpful . . . .” Moreover, the prosecutor made no similar objection to Juror Dan Forster, who apparently had far more serious grounds to complain of the inadequacy of a police investigation: Mr. Forster’s 15-year-old daughter was run down and killed in a pedestrian walkway only 6 months before this trial, and he stated on voir dire that he felt the police “should have investigated more closely whether the driver had been taking drugs or alcohol. They didn’t make any attempt to determine [that fact] by blood sample or anything of that type.” The driver was not charged with any offense. The prosecutor nevertheless allowed Mr. Forster to serve as a juror.
Second, the prosecutor said that Mrs. Sobel “had a trial which she apparently testified in against a police officer and she was not happy with it because the officer hadn’t told the truth.” The reference is to an incident in which Mrs. Sobel was given a traffic citation by a highway patrolman because he believed she had not made a sufficient stop at a stop sign; she disagreed and contested the matter, but the court accepted the officer’s version of the incident. This mundane incident, however, did not so disturb Mrs. Sobel as to impair her ability to serve as an impartial juror. On the contrary, it apparently had the opposite effect, i.e., it increased her impartiality: she conceded that before the incident she had been inclined to give more credibility to a police officer’s word simply because he was an officer; after the event, however, she would neither automatically believe nor disbelieve such witnesses, but would judge them on their individual merits: she explained, “I’d just listen to them carefully and compare them to whatever evidence was presented.”9
The prosecutor’s remaining reasons for excluding Mrs. Sobel were subjective. He said that “she was sixty-six years old, she also appeared to me to be a very tired-appearing person,” and that “To me she gave the defendants a very sympathetic look.” The prosecutor did not explain either of these remarks—which were almost identical to his criticisms of Mr. Kirstel’s age and demeanor—and they too are unverifiable.
The fourth Jewish prospective juror discussed by the prosecutor was Robert Berliner. The first objective reason given for challenging him was that “he didn’t seem to be willing to commit to promises to make a decision based on the facts of the evidence and that bothered me.” The record shows just the opposite. Mr. Berliner assured the court that he would obey the [1263]oath to “render a verdict according to the evidence received in the courtroom . . . .” Specifically, he stated that on the question of imposing the death penalty “I wouldn’t be categorically opposed. I would simply try to follow the evidence and my mind would be open.” And he repeatedly stated that he could and would vote both for a verdict of guilty and a penalty of death if either was appropriate on the evidence.10 The prosecutor nevertheless pressed the point, saying, “we ask you in advance. And you don’t have any hesitation in that regard, you could follow the law, follow the evidence to whatever conclusion was reached? Not knowing what the law is, not knowing what the evidence is, just promise you would follow those to a verdict, based upon them?” Mr. Berliner answered, “Yes,” and the prosecutor went on to other matters. No ambiguity appears in such a record.
Next the prosecutor asserted that Mr. Berliner “said that sympathy would be a problem for him,” and the prosecutor inferred that Mr. Berliner would be sympathetic to the defendants rather than to the victim. Neither assertion finds support in the record. The court first asked Mr. Berliner if he could follow an instruction to put aside sympathy for either the defendant or the victim in deciding guilt; Mr. Berliner observed that it would be hard to avoid having some such feelings, but said he could follow the instruction. And when the prosecutor returned to the point, Mr. Berliner made it plain that his observation was general in nature and he had no feelings of sympathy towards the particular defendants on trial in this case.11
Next the prosecutor complained that Mr. Berliner “had an atypical answer on the question of police officers’ dealing with blacks, which made me think that the colorblindness would be a problem for him.” Again the record is otherwise. There is not the slightest intimation that Mr. Berliner had a “problem” with the race of the defendants; on the contrary, in the [1264]brief discussion of the topic he expressly said he had “No problem” with excluding racial considerations from his decision on either guilt or penalty.12 Nor is it true that Mr. Berliner’s answer to the question whether the police treat Blacks differently was, as the prosecutor claimed, “atypical.” On the contrary, several of the sitting jurors likewise had no opinion on this question: like Mr. Berliner, they simply had no personal experience with the matter and declined to speculate on it. Thus Juror Reguero replied to the same question, “I really don’t have an opinion,” and in words virtually identical to Mr. Berliner’s (see fn. 12, ante), said, “That all depends on who you talk to. Some people feel they are [treated differently by the police] and some people feel they are not.”
Finally the prosecutor claimed, “I had some kind of question when I was finished talking to him about whether or not an engineering standard of proof, if there is any such thing, might be—well, that might be a problem.” If the prosecutor was trying to say that Mr. Berliner, who was an engineer by profession, might have used an “engineering standard of proof,” the record is plainly the opposite.13
The prosecutor’s remaining reasons for excluding Mr. Berliner were subjective. He began by calling Mr. Berliner “weird,” then said, “He appears odd to me, he was dressed in a fashion that I thought was somewhat different and out of the mainstream perhaps,” that “He made me uncomfortable,” and that “I also felt I was totally unable to relate to him while I was talking to him which made me somewhat nervous . . . .” Again the [1265]prosecutor did not further explain any of these remarks, and none is verifiable. It may be noted, however, that Mr. Berliner was evidently in the “mainstream” in certain fundamental respects: he was a computer design engineer at Hewlett Packard, where he had been employed for 10 years, and was married with a wife at home and 2 young sons.
Although the objective reasons given by the prosecutor for challenging the Jewish jurors are thus unsupported by the record, the transcript does contain a line of questioning by the prosecutor that suggests another reason why he struck each member of this group of prospective jurors. In conducting his voir dire of Mr. Kirstel the prosecutor asked, “Do you think that as a juror you would maybe be a little bit more lenient towards a black person because he’s a minority?” When Mr. Kirstel observed that although he too was a minority because he was Jewish he would not thus favor defendants, the prosecutor reiterated: “Okay. But especially if you think in terms of being a minority in maybe a religious sense, you would bend over backwards a little bit for a racial minority?” Again Mr. Kirstel replied that to the best of his ability he would not do so. But the prosecutor relentlessly pressed the point: “If it came up that you thought, well, gee, you know, Jews have been [a] minority for hundreds and hundreds of years—thousands of years—and they have been oppressed at many times and the black people have been oppressed in this country and I feel sorry for the defendants because they’re black, if that started coming up for you do you think you’d be able to tell—at least recognize it and do your best to set it aside?” The questions say more about the prosecutor than about Mr. Kirstel. They imply a belief that a Jew could be biased in favor of these defendants simply because of the history of oppression of the Jewish people. Such a belief, however, is precisely the kind of group bias that Wheeler condemns as an impermissible ground for striking the members of that group from the jury: to act on that ground is to violate the defendant’s right to trial “by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.” (22 Cal.3d at pp. 276-277.)
B. The Black Prospective Jurors
The first Black prospective juror discussed by the prosecutor was Serena Storey. As an objective reason for challenging her, he first said that “She’s had a brother-in-law who was arrested.” In Wheeler we noted that one of the Black prospective jurors peremptorily challenged had a stepson who was currently incarcerated on a criminal conviction, and observed that “A personal experience of this nature, suffered either by the juror or a close relative, has often been deemed to give rise to a significant potential for bias against the prosecution.” (22 Cal.3d at p.277, fin. 18.) The case at bar, however, is of an entirely different order of magnitude. Here the record [1266]shows that the charge against Ms. Storey’s brother-in-law was possession of marijuana, the arrest occurred 10 or 12 years earlier, and the punishment had been a simple fine. In these circumstances it is difficult to believe the incident caused Ms. Storey to harbor a lingering bias against the prosecution a decade later. The prosecutor apparently did not believe it either: when Ms. Storey brought up the incident during the prosecutor’s voir dire he did not ask her whether it would affect her ability to deliberate in this case, although he asked that question of all prospective jurors whose family members had had potentially adverse experiences with the police.14
A similar exaggeration appears in the next objective reason offered by the prosecutor: “She’s known many guys who have gone to jail.” The implication is that Ms. Storey—in the vernacular of a bygone era—is the “moll” of a gang of hardened criminals. But the reality is much different: it is simply that 20 years earlier, when she was a teenager, a number of other teenagers in her high school were held in jail or put on probation for, as she described it, “little different things.” Unfortunately this is not an unusual experience for a Black in the teenage years. Yet when a non-Black prospective juror described a similar experience, the prosecutor was not concerned and accepted her as a juror.15
Next the prosecutor stated, “There was a question in my mind whether she thought the courts were prejudiced against blacks.” What Ms. Storey actually said, however, was that she believed the courts treated Whites more leniently than other races because Whites are the majority in this country.16 [1267]For Wheeler purposes, of course, it is immaterial whether or not that belief is well founded; what matters is that Black prospective jurors like Ms. Storey may share the belief simply because they are Black: it is a perspective “arising from their life experience in the group, i.e., a perspective gained precisely because they are members of that group.” (Rubio v. Superior Court (1979) 24 Cal.3d 93, 98 [154 Cal.Rptr. 734, 593 P.2d 595].) Accordingly, under Wheeler the belief is an impermissible ground for striking Blacks from the jury: the purpose of the representative cross-section requirement “is to achieve an overall impartiality by allowing the interaction of the diverse beliefs and values the jurors bring from their group experiences. Manifestly if jurors are struck simply because they may hold those very beliefs, such interaction becomes impossible and the jury will be dominated by the conscious or unconscious prejudices of the majority.” (Wheeler, 22 Cal.3d at p.276.)
This is true even if the belief in question might predispose the Black prospective juror to favor Black defendants generally. As we further explained in Wheeler, quoting with approval from a cogent analysis of the issue, “ ‘Blacks may, in fact, be more inclined to acquit than whites. The tendency might stem from many factors, including sympathy for the economic or social circumstances of the defendant, a feeling that criminal sanctions are frequently too harshly applied, or simply an understandable suspicion of the operations of government. . . . But these tendencies do not stem from individual biases related to the peculiar facts or the particular party at trial, but from differing attitudes toward the administration of justice and the nature of criminal offenses. The representation on juries of these differences in juror attitudes is precisely what the representative cross-section standard elaborated in Taylor [v. Louisiana (1975) 419 U.S. 522 (42 L.Ed.2d 690, 95 S.Ct. 692)] is designed to foster.’ ” (22 Cal.3d at pp. 276-277, fn. 17.)
In any event, the record shows that in the case at bar Ms. Storey’s belief that the courts were lenient towards Whites did not bias her in favor of the specific Black defendants on trial here. When the court directly asked her whether her determination of the guilt or innocence of these defendants would be affected by the fact they are Black, she replied unequivocally that it would not.17
[1268]Apparently unsatisfied with this answer, the prosecutor engaged Ms. Storey in a line of questioning reminiscent of that he had used on the Jewish prospective juror Mr. Kirstel, again raising the specter of group bias. Saying that “only you can answer this question,” he asked her, “what attitude do you think you would take towards the racial question in a case such as this one if you were on the jury?” Defense counsel objected that Ms. Storey had already answered this same question when it was asked by the court, but the court allowed the inquiry because it had not yet been asked by the prosecutor. The prosecutor then amplified the question to add a reference to the “different treatments” that racial groups have experienced. Ms. Storey replied in effect that she understood prejudice because she had been exposed to it as a Black, and therefore to avoid being guilty of prejudice herself—i.e., by favoring Black defendants—“I would be more inclined to try and be as fair as possible.” She stressed that “I would take a very good look though at the evidence.”
Still unsatisfied, the prosecutor asked, “Well, given that maybe most people can’t be dead neutral on the question of race whether they’re police officers, judges, juries, whatever, I’m wondering what your own particular attitude might be that might be different if the defendants were Oriental or whites or something like that.” Again Ms. Storey explained that the race of the defendants on trial was immaterial to her: “As far as being black, I deal with blacks every day. I’m aware of the good and the bad in all races.”18 Yet the prosecutor pressed relentlessly on, saying, “So you think that the fact that these defendants are black would make it a little harder for me to prove the case or a little bit easier to prove the case . . . .” Because Ms. Storey did not “think” anything of the sort, she interrupted him to declare—one more time—that “I don’t think the fact that they’re black in my personal situation would make any difference.”
Despite the firmness, clarity, and consistency of Ms. Storey’s answers on this issue, it is obvious from the prosecutor’s remarks at the Wheeler hearing that he continued to presume she would be biased in favor of Black defendants merely because she was herself Black. That presumption, however, violates not only our Wheeler rule but the specific command of the United States Supreme Court in Batson: the high court explicitly warned that “the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defend[1269]ant’s race on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared race. [Citations.] Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors [citation], so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, insuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race.” (476 U.S. at pp. 97-98 [90 L.Ed.2d at p. 88].)
Shifting his ground, the prosecutor next stated that because Ms. Storey had divorced her police officer husband, he felt she was “very militant anti-police officers . . . .” The record shows this to be another gross exaggeration. Ms. Storey and her husband had been divorced for five years by the time of this trial, and she assured the prosecutor that “I really had no problem with him being a police officer.” Although she said that “I have known policemen to lie,” she explained that she meant they might lie “to their wives” on social occasions on which they claimed, for example, “an act of bravery.” She never asserted that she had known police officers to lie on the witness stand. When the court asked her if she would be inclined to give a police officer’s testimony less credibility because he is an officer, she replied, “No, because I did know a couple of nice policemen.” When the prosecutor inquired further, Ms. Storey explained that from her marriage she learned that “being a police officer you see so much of the bad side” of human nature that many officers become bitter and hopeless, but that others “didn’t allow the environment to change their minds or make them something else that they didn’t start out [being]”; these police officers, she agreed, “maintained their humanity.” And she reiterated that she would have no problem judging police credibility by the same standards she would apply to all witnesses. There is no other discussion of the matter in the voir dire of Ms. Storey, and the record thus does not support the prosecutor’s belated claim that Ms. Storey was “very militant anti-police officers.”19
Nor does the record support the prosecutor’s further assertion that Ms. Storey “said she’d judge police credibility by vibrations. I don’t know what she meant by that, but I’d have a lot of problem resting a case with a lot of police testimony on the vibrations of the police officer, those not being under my control or even being able to understand what she meant.” This [1270]reason for the challenge is pure fantasy. Nowhere in the transcript of her voir dire examination does Ms. Storey say she would judge police credibility—or anything else—by “vibrations.”
The prosecutor’s final two objective reasons for striking Ms. Storey relate to even more trivial matters. First he stated that she “said that it was bad luck to get on a jury . . . .” Again this is a bald overstatement of the record. During voir dire the court asked Ms. Storey whether she could refrain from watching television news stories about this trial if she were a juror, and she replied candidly, “Well, if I had the bad luck to get on this jury I guess I’d do that.” As was his right, the prosecutor asked for the particular reason why she would rather not serve on this jury. He acknowledged that “most people don’t want to get on . . . because of the amount of time that’s involved,” but he noted that some prospective jurors have other reasons, e.g., they “don’t like the idea of sitting in judgment on other people.” Ms. Storey replied that her reason was purely the former: she was a planning engineer for Pacific Telephone Company, and at that moment was “right in the middle of a great big reprogramming thing” and there was nobody else available to do her job; accordingly, if she were to serve on this jury she would have to work late on her job after the trial adjourned each day. The prosecutor asked, “In relation to this case then those are the reasons that there would be a problem. Nothing else that you can think of offhand?” She replied, “No. That would be the strain.” There was no other discussion of the question. In these circumstances, as the prosecutor conceded, Ms. Storey’s reluctance to serve was not unusual; more important, the record is devoid of evidence that her reluctance would have biased her against either party in this case, less still that it would have caused her to favor the defendant rather than the prosecution.20
As his final objective reason the prosecutor twice said that Ms. Storey had been “prosecuted” for allowing her son to drive her car without a license. That “prosecution,” however, turns out to be nothing more than an ordinary traffic ticket. She explained that she received the citation for letting her son drive her car alone before he got his license, although he had his learner’s permit at the time. The matter was resolved without even a court appearance: she paid a small fine by mail, and her son went to traffic school. Not surprisingly, the event left Ms. Storey with no resentment. The court asked her, “Is there anything about that experience which creates any problem for you, anything in your mind about law enforcement. . . ?” She candidly replied, “No, I was definitely in the wrong.”
[1271]The prosecutor’s remaining reasons for excluding Ms. Storey were subjective. He said she had “a very defensive body disposition, . . . she was closing her legs and folding her arms when she was talking to me,” and that when counsel were introduced to her “she wouldn’t even look in my direction” and “my sense was . . . that there was some kind of hostility at that point.” The prosecutor also asserted that “When the court mentioned the death penalty, I counted a pulse, because I was able to with some jurors, and did it with everyone I could from jewelry bobbing or from actually seeing veins in the neck. Her throat became very fast and her pulse came up to over a 100, what I thought was somewhat unusual.”
Again the prosecutor did not further explain any of these remarks, and none is verifiable. Yet one point deserves a brief discussion. Even if we assume arguendo that the prosecutor seriously believed he had the power to take an accurate pulse just by looking at his subject, the record refutes his implication that Ms. Storey’s alleged pulse rate meant she would be reluctant to impose the death penalty. When the court asked for her position on that penalty she replied, “I’d say I’m neutral. I would have no qualms about giving a death sentence if it’s warranted.” On voir dire by defense counsel she reiterated, “I said I’d have no problems with giving the death penalty.” On voir dire by the prosecutor she returned to the subject when he asked her if she would favor Black defendants, and she volunteered the view that “Since I do not have qualms about the death penalty and I think that would apply whether the defendants were white or black.” And she answered twice more in the affirmative when the prosecutor asked if she could vote for death for one defendant even if that penalty was not appropriate for the other or the other turned state’s evidence.
The next Black prospective juror discussed by the prosecutor was Marcia Tamboura. As his first objective reason for excluding her the prosecutor said, “She mentioned that she doesn’t follow—she reads the newspapers daily but she reads the funnies and Ann Landers. She doesn’t read the news.” The prosecutor’s plain implication—that Mrs. Tamboura is too unintelligent or uninformed to be a juror because she voluntarily chooses not to “read the news”—is both insulting and contradicted by the record. Mrs. Tamboura did not say she never reads the news; what she did say was very different, to wit, that if she were to serve as a juror in this case she would follow the court’s admonition to avoid reading any news reports about the trial.21 Whether Mrs. Tamboura’s mention of Ann Landers and [1272]the comics was a modest attempt at humor or an expression of her preference for those popular features, her answers are entirely unremarkable. They certainly do not support the demeaning inference that the prosecutor sought to draw from them.
On this point the record again demonstrates the prosecutor’s disparate treatment of the Black prospective jurors. No less than four White jurors admitted on voir dire that they intentionally avoid reading the news—i.e., the attitude that the prosecutor tried to impute to Mrs. Tamboura. Thus Juror Judith Brown declared that she does not read the news portions of the papers, only the sports pages.22 Juror Anna Mills said she reads the newspapers only “rarely,” while Juror Natalie Fleming said she does not take a newspaper at all. And Alternate Juror Tucker flatly declared “I avoid the news” because it upsets her. As to none of these four, however, did the prosecutor make the snide remark he made about Mrs. Tamboura, and he allowed all four to pass unchallenged and serve on the jury.
Next the prosecutor charged that Mrs. Tamboura “didn’t approve of the death penalty.” It is true that she so answered when the court asked her for her position on the penalty. But she proceeded to make it crystal clear that she would nevertheless be willing and able to vote for death in an appropriate case. First she answered in the affirmative when the court asked whether she could vote for death if the case reached the penalty phase. The prosecutor then inquired into the matter at length, and Mrs. Tamboura frankly explained her thinking as follows: “Could I vote for the death penalty, you know, where I don’t really like it. And I came to the conclusion, yeah, I could. If the evidence was that that’s what should be called out or if that’s what the law says that I have to do, I would have to say yes. I would have to because the death penalty is a fact. My not liking it doesn’t change the fact.” The prosecutor asked the same question in several different ways, but Mrs. Tamboura gave the same answer each time.23
[1273]The prosecutor also complained that “she said she didn’t think that being black should have any bearing on the case. She didn’t say it wouldn’t have any, she said she didn’t think it would which leaves to me the question if she sat there whether or not blackness of a defendant would make a difference in the case and that’s a risk all by itself I would be very unhappy having to take.” Again the prosecutor’s claim is a gross exaggeration of the record. The court first asked Mrs. Tamboura its standard questions about the relevance of defendants’ race, and she gave routine answers denying any bias.24 Taken in context, her answer, “I don’t think so,” was not an expression of uncertainty but simply a common colloquial equivalent of “no.” This fact was made plain when the prosecutor pressed the point in his voir dire and Mrs. Tamboura disabused him of any notion that she was uncertain on the issue.25
On this point the record demonstrates once more the prosecutor’s disparate treatment of Black prospective jurors. Virtually every one of the jurors who were allowed to serve also answered with similar affirmative (or negative) colloquialisms, viz., “I think [or “don’t think”] I could,” “I believe [or “don’t believe”] so,” “I feel [or “don’t feel”] I could,” etc. (See, e.g., fn. 37, post.) Yet the prosecutor challenged none on this ground. For example, Alternate Juror Travis answered in such terms far more often than Mrs. Tamboura, but the prosecutor was unperturbed. Thus when he inquired if [1274]Mrs. Travis could disregard personal feelings in deliberating on guilt, she replied, “Yes, I think so.” He asked for a clarification, and she explained that she meant, “I would hope I can do that. ... I would try my best.” Even though her explanation was far more tentative than Mrs. Tamboura’s, the prosecutor immediately accepted it, saying, “That is the only kind of commitment I can ask.” Moments later he inquired if she could vote to convict the two defendants even if a third had turned state’s evidence, and she replied, “I think so.” He responded, “Again, I assume when you say, T think so,’ it is kind of a figure of speech?” Yet when Black prospective juror Tamboura said exactly the same words the prosecutor no longer took them as a figure of speech, but claimed instead they must be taken literally. The incident is revealing.
The prosecutor also pointed to several occasions on which Mrs. Tamboura had had contacts with law enforcement officers; presumably he mentioned them because he inferred that they had biased her against the police. The record will not bear the inference. First he said, “she had fought a traffic ticket and testified against the police officer.” The record shows, however, that the incident was a routine case of Mrs. Tamboura and a police officer disagreeing over the moment at which a yellow traffic light turned red as she was driving through an intersection. Not surprisingly, Mrs. Tamboura stated that the incident left her with no bias against the honesty or credibility of police officers.26
Even more trivial were the other incidents listed by the prosecutor. He said, “She mentioned that there was some incident with the police officer, a BB gun, I think it was, the neighbor’s, not her own kids.” Again the prosecutor got the facts wrong: the record shows that it was Mrs. Tamboura’s son who was shooting his BB gun in his own backyard, and it was the neighbor who called the police. But the affair was a nonevent at best: Mrs. Tamboura explained that the neighbor “was worried about her windows, which I don’t blame her [for].” The incident occurred more than a year before this trial, and did not result in any court proceedings: the officer simply told her son to shoot his BB gun in open fields rather than in the city. Both the court and the prosecutor expressly asked Mrs. Tamboura [1275]whether the incident created “any problem for you as far as law enforcement is concerned,” and she squarely replied to both that it had not.27
Next the prosecutor said, “She had a ticket on a Christmas Eve that she didn’t like and remembered he gave her a problem.” It is true Mrs. Tamboura received a ticket on Christmas Eve, but the rest of the prosecutor’s statement is contradicted by the record. On voir dire by the court Mrs. Tamboura denied that she felt the ticket was unjustified or that the incident would affect her deliberations in this case. And contrary to the prosecutor’s belated claim that Mrs. Tamboura “remembered [the officer] gave her a problem,” at the time of the voir dire even the prosecutor recognized that the incident was “most trivial” and probably not something she “had thought about much” since it had happened, and Mrs. Tamboura explained it simply made her laugh.28
As his final objective reason for challenging Mrs. Tamboura the prosecutor said, “She had been a witness in a manslaughter case and my best recollection is now that it was not in favor of the People . . . .” Once again the prosecutor’s “best recollection” is flatly contradicted by the record. Far from being a witness for the defendant in the manslaughter case, it was Mrs. Tamboura herself who initiated the prosecution. She had been hired as a babysitter, and found the child in a state of near-starvation. It was she who called the police, and when the child died its mother was charged with manslaughter. Mrs. Tamboura testified against her at the trial, and the mother berated her in open court. Moreover, the event occurred when Mrs. Tamboura was a teenager, 20 years before the present trial, and she assured the court that it would not affect her deliberations in the case at bar. In any event, of course, if the experience had any effect it would have tended to bias her in favor of the prosecution rather than the defense.
The prosecutor’s remaining reasons for excluding Mrs. Tamboura were subjective. He said he felt “somewhat generally” that she was “an overweight person,” and “that her hair was poorly groomed, that her clothes were unkept [s/c], giving me an indication of not being part of perhaps the mainstream of people’s thinking.” He also claimed “She was very nervous [1276]about the death penalty” because “she was breathing very fast about it,” and that he inferred she was not telling the truth or being open and candid in her answers because “she kept her hand over her mouth” when she talked about the penalty. Lastly he asserted that “She was somewhat charming with some counsel and I felt somewhat the reverse with me,” that “She didn’t appear to relate to me,” and that “I got the feeling she didn’t trust me, again for reasons unknown.” The prosecutor did not further explain these observations, and none is verifiable.29
C. The Asian Prospective Jurors
The first Asian prospective juror discussed by the prosecutor was Sharon Fukada. As an objective reason for striking her, he said she “did not approve of the death penalty, was strong about that. . . .” As a summary of Ms. Fukada’s view the statement is both exaggerated and incomplete. Although she did not approve of the death penalty, she was certainly not “strong” in that belief: she repeatedly assured the court that she would not be reluctant to vote for death if it was the appropriate penalty under the evidence and instructions in this case. She reiterated that position several more times in close questioning by the prosecutor. Indeed, when asked by him for an example in which she could vote for death, she suggested felony-murder rape; and she expressly stated she would not automatically vote for life in a felony-murder robbery, which was the People’s theory in the case at bar.
Next the prosecutor complained that “she said she couldn’t pass judgment.” The record is otherwise: Ms. Fukada did not say she was unable to pass judgment under any circumstances; she explained rather that “It is hard for me to say I could [judge the defendants] right now,” because she had not heard the evidence and the law. But when the prosecutor made clear that she could answer in the abstract, she stated she would be able to vote to convict if the facts warranted it. The prosecutor asked if she was “sure about that” and she replied, “I would say that I am sure.”
The prosecutor was not similarly troubled, moreover, by other jurors who were initially uncertain whether they could pass judgment in this case. For example, Juror Mary Heinrich repeatedly voiced grave doubts whether she would be able to vote at all on the issue of penalty: she had previously served on a jury in a murder case in Alaska, and even though that state does not have a death penalty she found it “a hard and traumatic experience” [1277]that left her very loath to “play God.” During a long and arduous voir dire on this single issue by the court, by defense counsel and by the prosecutor, Mrs. Heinrich answered time after time that she simply did not know if she could sit in judgment on this case. Under continued questioning she eventually said she “probably” could do so; and it was only when the court insisted on an unqualified answer that she affirmatively stated—with obvious reluctance—that she could pass judgment. Despite this performance the prosecutor allowed Mrs. Heinrich to serve as a juror.
As his final reason for striking Ms. Fukada the prosecutor charged that she had “some trouble understanding” the questions on voir dire, and either had a “language difficulty” or “there might have been an intelligence problem.” This harsh criticism finds little or no support in the record. It is true Ms. Fukada candidly admitted that when the questions are lengthy “I get lost along the way.” But this is not unusual, as shown by the fact that the prosecutor immediately acknowledged to her, “I have a tendency to do that myself.” A number of the questions asked of Ms. Fukada were indeed long and complicated, involving legal procedures unfamiliar to laypersons30 still other questions were, to put it charitably, awkwardly phrased.31 In the circumstances Ms. Fukada’s answers were as prompt and direct as could reasonably be expected of a layperson called to serve on her first jury—in a trial, moreover, in which two defendants were charged with capital crime. The court and counsel also found it necessary to rephrase or explain many of the questions they asked of other prospective jurors, including most of those selected to serve. There is nothing to distinguish Ms. Fukada in this respect.
Nor are the prosecutor’s speculations about a “language difficulty” or an “intelligence problem” plausible on this record. Although of Japanese descent, Ms. Fukada was born and raised in Mountain View and Watsonville, attended two years of community college in Southern California studying [1278]animal health technology, at the time of trial was attending Foothill Community College studying accounting, and had worked for four years in the accounting department of Fairchild.
The only subjective reasons offered by the prosecutor for striking Ms. Fukada were that she seemed “very shy” and “perhaps even younger” than her age (26), and “I noticed [her] staring off when being questioned by the court.” The prosecutor did not further explain these reasons, and none is verifiable.
The second Asian prospective juror discussed by the prosecutor was Miranda Wong. As an objective reason for the challenge32 the prosecutor said she “preferred . . . life without possibility of parole.” The facts are not so simple. Ms. Wong explained that largely because of her religious education she used to believe that all murderers deserved to die, but that she now leaned more towards life imprisonment because of problems of proof. Nevertheless she assured the court several times that she would not be reluctant to vote for death if it was the appropriate penalty under the facts and the law. She reiterated this assurance to the prosecutor, and also agreed that she could vote for death for one defendant even if that penalty was not appropriate for the other. Her assurances were identical to those given by other jurors preferring life imprisonment, which were accepted by the prosecutor.
Next the prosecutor complained that “she mentioned that she was concerned that the case be proven without any doubt.” The record is to the contrary. The prosecutor went into the matter at length in his voir dire, reviewing with Mrs. Wong the difference between the law’s standard of proof beyond a reasonable doubt and the higher standard of “scientific proof.” He illustrated the point by reference to Mrs. Wong’s job as a laboratory technician analyzing blood samples: if she was uncertain of a result in her work she could draw another sample and run the test again or run it differently, whereas as a juror she would have to reach her decision on the fixed quantity of evidence presented to her; for this reason her standard of proof as a juror could not be scientific certainty but proof beyond a reasonable doubt. Mrs. Wong immediately understood, and agreed that “I think my work and this case are two different things.” She restated the difference in her own words, and the prosecutor commended her for giving “an accurate summation” of the matter. She then assured him she would have no problem with applying the law’s standard of proof beyond a reasonable doubt in this case, and he appeared to accept that assurance.
The prosecutor next gave as a reason for challenging Mrs. Wong that “she felt it was hard to judge someone.” The record shows that although [1279]she first said it would be hard to do so, she immediately told the court she would be able to judge when it was needed.33 In his voir dire the prosecutor returned briefly to the topic and asked, “Would it make you feel bad to have to decide who’s telling the truth and who isn’t?” Mrs. Wong squarely replied, “No.” The prosecutor then dropped the subject, agreeing with her that “You mentioned that it was hard to judge someone, which, of course, is true, it is.” Mrs. Wong’s actual position on this point was thus entirely unremarkable, and was shared by many of the jurors subsequently selected to serve.
Finally the prosecutor complained, “She contested a speeding ticket against a police officer and apparently lost that ticket and she had some feeling about that.” Again the prosecutor grossly exaggerated the significance of the incident. The record shows that about two years before this trial Mrs. Wong received a ticket for speeding, and went to traffic court to tell her side of the story. The arresting officer did not appear. She admitted she had been speeding, and disagreed only on how much faster than the limit she had been driving.34 Because it was a first offense, the court was lenient; and contrary to the prosecutor’s claim that “she had some feeling” about the outcome of the incident, the record shows that Mrs. Wong harbored no resentment whatever that could have biased her against the prosecution in this case.35
More important, the fact that the prosecutor mentioned the incident at all as a reason for striking Mrs. Wong is further proof of the disparate treatment he accorded these minority prospective jurors. As we have seen, he also singled out prior traffic tickets as reasons for striking Jewish prospective juror Sobel and Black prospective jurors Storey and Tamboura. Yet [1280]the record reveals that of the 14 empaneled jurors and alternates who were asked the same question, no less than 11 admitted they had also received traffic tickets, and in each case the prosecutor was unconcerned by the incident and accepted the juror’s assurance that it would not bias him or her in the present trial. Perhaps the most dramatic example was that of Juror Reguero, who admitted on voir dire that (1) in 1970 or 1971, while driving under the influence of alcohol, he struck and injured a person; (2) he was arrested by a policeman who handcuffed him behind his back while taking him into custody; (3) although the offense was a felony, his attorney obtained a reduction of the charge to a misdemeanor; (4) he was again arrested for drunk driving only six months before the present trial; (5) he felt the second arrest was a “bum rap” because although he had had “probably three drinks” he did not think he was legally drunk;36 (6) his attorney obtained a reduction of the charge to reckless driving; and (7) the incident cost him $200 for the fine, $60 to release his car from impound, plus, as he put it, “six hundred bucks for the attorney. I thought that was a bummer.”
Despite these repeated expressions of resentment by the juror, the prosecutor accepted at face value his assertion that the experiences would not bias him against the People.37 Indeed, the prosecutor brushed the whole matter aside with the remark, “We all get a traffic ticket once in awhile.” Yet his tolerance in this respect was highly selective: when Jewish prospective juror Sobel and Black prospective jurors Storey and Tamboura and Asian prospective juror Wong admitted to receiving traffic tickets for much less serious offenses and likewise said the incidents would not bias them against the People, the prosecutor refused to accept their assurances and cited their tickets as a reason for striking them from the jury.
Ill
Our decisions furnish ample guidance for determining the legal consequences of this factual record. Because Wheeler prescribed for the first time the procedure that now bears its name, the prosecutor in that case had no occasion to offer reasons to rebut the prima facie case of group bias there shown. In four cases since Wheeler, however, we have been called upon to review such reasons, together with rulings of trial courts accepting them as sufficient.
First, in People v. Johnson (1978) 22 Cal.3d 296 [148 Cal.Rptr. 915, 583 P.2d 774] (hereafter Johnson), we impliedly accepted as true the prosecu[1281]tor’s explanation that he believed no Black prospective juror in that case could be unbiased because there would be testimony that prosecution witnesses had referred to the defendant as “the nigger.” But we nevertheless held that explanation insufficient as a matter of law, reasoning that it amounted to “decision-making by racial stereotype” (id. at p. 299) because it presumed that every Black prospective juror would be unable to weigh such testimony objectively. “This is precisely the kind of group bias that Wheeler holds constitutionally insufficient to support a peremptory challenge.” (Id. at p. 300.) We therefore reversed the judgment.
Second, in People v. Hall (1983) 35 Cal.3d 161 [197 Cal.Rptr. 71, 672 P.2d 854] (hereafter Hall), the prosecutor offered several objective reasons purportedly based on the backgrounds of the Black jurors he had challenged. We stressed (at p. 167) that the trial court must “satisfy itself that the explanation is genuine,” and held (at p. 168) that although the prosecutor gave an explanation for his challenges, “it is apparent that the court made no serious attempt to evaluate that explanation for the purpose of determining whether it was bona fide. In fact, the record itself contains ample reason to suspect that it was not.” We explained that some of the reasons the prosecutor gave were contradicted by the record, and others could have applied equally to non-Black jurors whom he did not challenge. (Ibid.) We reasoned that “Such disparate treatment is strongly suggestive of bias, and could in itself have warranted the conclusion that the prosecutor was exercising peremptory challenges for impermissible reasons.” (Ibid.)
We concluded that “particularly in that light” the prosecutor’s explanations “demanded further inquiry on the part of the trial court,” but we observed that “the trial court apparently considered itself bound to accept all of the prosecutor’s explanations at face value” (35 Cal.3d at pp. 168-169). We therefore held that “Such abdication is inconsistent with the court’s obligations under Wheeler, and on authority of that case must be held to constitute error requiring reversal.” (Id. at p. 169.)
Third, in People v. Trevino (1985) 39 Cal.3d 667 [217 Cal.Rptr. 652, 704 P.2d 719] (hereafter Trevino), the prosecutor offered both objective and subjective reasons for the challenges in question. We began by recalling the teaching of Wheeler (22 Cal.3d at p.284, fn. 32) that “the issue in such event is not his ‘judgment’ or ‘sincerity’ but simply whether his ground of challenge was a specific bias on the part of the individual juror,” and that specific bias is a ground that is “reasonably relevant to the particular case on trial or its parties or witnesses” (id. at p. 282).
Applying that test, we held (39 Cal.3d at p. 689) that the trial court in Trevino confused “specific reason” (for a challenge) with “specific bias” [1282](against a party). The trial court denied the Wheeler motion because it found that the prosecutor had stated “specific reasons” for his challenges— primarily the youth and immaturity of the prospective jurors in question. After reviewing the record, however, we concluded that the prosecutor’s specific reasons did not amount to specific bias within the meaning of Wheeler. We found some of those reasons unsupported by the record;38 and as in Hall, we observed that other reasons he gave were equally applicable to jurors whom the prosecutor did not challenge. On this record we concluded that most of the challenged minority jurors “were excluded for reasons other than those presented to the court” (id. at p. 692); indeed, we found the prosecutor’s reasons were “scarcely more believable than those we rejected in Hall” (ibid.). We therefore reversed the judgment.
Fourth, in People v. Turner, supra, 42 Cal.3d 711 (hereafter Turner), the prosecutor offered objective reasons for challenging three Black prospective jurors. Applying the analysis of Hall and Trevino, we first held that the record did not support the prosecutor’s proffered explanations. He complained that the first Black prospective juror “had a great deal of difficulty” in understanding the questions on voir dire. (Id. at p. 722.) We found, rather, that the relevant portions of the transcript “cast grave doubt on the plausibility of the prosecutor’s explanation” (id. at p. 725); we observed that the prospective juror in fact exhibited little or no hesitation in his answers, and that other jurors responded in the same way—one of whom was accepted by the prosecutor.
Citing Hall (35 Cal.3d at p. 168), we concluded as to the second Black prospective juror that “the record contains ‘ample reason to suspect’ that the proffered explanation was not bona fide.” (42 Cal.3d at p. 725.) The prosecutor had objected to the prospective juror’s job in hospital administration, but on voir dire failed to ask her any questions about that job: “Absent such inquiry, we can conceive of no reason why [the prospective juror’s] position in hospital administration should give rise to a specific bias against the prosecution.” {Id. at p. 726.)
The prosecutor’s stated reason for striking the third prospective Black juror was that “she could not sit impartially because she was a mother of children” (42 Cal.3d at p. 726). After reviewing the voir dire we concluded that “we have little confidence in the good faith of his proffered explanation.” {Id. at p. 727.) We reasoned that the prosecutor’s concern about partiality “is belied by the juror’s assurance to the court that she would be able to listen to the evidence and reach a just verdict on the facts and the [1283]instructions.” (Ibid.) And we explained (ibid.) that “In light of [the prospective juror’s] statement that she could indeed serve as a juror, she may have meant only that she was uncomfortable with the nature of the case—a feeling that other jurors naturally expressed as well.” In that connection we noted that “a number of White prospective jurors also had children but were not challenged by the prosecutor.” (Id., fn. 15.)
Turning to the ruling of the trial court, we held that “the inadequacy of the prosecutor’s reasons was compounded by the court’s apparent acceptance of those reasons at face value.” (42 Cal.3d at p. 727.) The court listened to the prosecutor without question and denied the Wheeler motion without comment. Yet particularly because “the prosecutor’s explanations were either implausible or suggestive of bias,” they “ ‘demanded further inquiry on the part of the trial court’ [citation], followed by a ‘sincere and reasoned’ effort by the court to evaluate their genuineness and sufficiency in light of all the circumstances of the trial” (id. at p. 728, quoting from Hall at pp. 169 & 167 of 35 Cal.3d). Again quoting Hall (id. at p. 167), we admonished that “Each step is ‘imperative, if the constitutional guarantee is to have real meaning’ [citation].” (42 Cal.3d at p. 728.) We therefore reversed the judgment on the grounds (ibid.) that “as in Trevino the prosecution failed to sustain its burden of showing that the challenged prospective jurors were not excluded because of group bias (39 Cal.3d at p. 693), and as in Hall the court failed to discharge its duty to inquire into and carefully evaluate the explanations offered by the prosecutor (35 Cal.3d at pp. 168-169).”
IV
These holdings apply a fortiori to the facts of the case at bar. First, as the transcript of the voir dire demonstrates (part II, ante), the record does not support the objective reasons offered by the prosecutor for his peremptory challenges of the eight minority prospective jurors. Instead the record shows, as we have seen, that each of his stated reasons suffers from one or more of the following defects: either (1) the statement lacks factual support; or (2) the statement is directly contrary to the facts; or (3) the statement omits material facts, e.g., it ignores significant explanations or assurances given by the prospective juror; or (4) the statement misstates the facts, e.g., it misrepresents the prospective juror’s position on the issue; or (5) the statement exaggerates the facts, e.g., it inflates the significance of trivial or remote and half-forgotten incidents; or (6) the statement discloses group bias as a matter of law. The record further shows that many of the prosecutor’s stated reasons applied equally or even more appropriately to other prospective jurors whom he did not challenge, and that he accepted from such jurors explanations and assurances identical to those he rejected when [1284]given by the minority prospective jurors whom he struck. Accordingly, under Johnson, Hall, Trevino, and Turner, the prosecutor’s objective explanations are insufficient to rebut the prima facie case of group bias shown by the record and found by the trial court.
Second, the prosecutor’s subjective explanations are also insufficient for the purpose. (Trevino, 39 Cal.3d at p. 692, fn. 25.) It is true that in Wheeler we recognized that peremptory challenges have traditionally been triggered by evidence suggestive of bias ranging “from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative.” (22 Cal.3d at p.275.) By way of examples, we acknowledged that jurors have been struck “simply because [their] clothes or hair length suggest an unconventional lifestyle,” or even—quoting from Blackstone—because of the juror’s “ ‘bare looks and gestures,’ ” e.g., because “upon entering the box the juror may have smiled at the defendant” (ibid.). We explained that in the usual case these subjective reasons “are essentially neutral with respect to the various groups represented on the venire,” and therefore “peremptory challenges predicated on such reasons do not significantly skew the population mix of the venire in one direction or another; rather, they promote the impartiality of the jury without destroying its representativeness.” (Id. at p. 276.)
This reasoning is undoubtedly valid as far as it goes, i.e., unless and until the trial court on motion finds the defendant has made a prima facie case39 that the prosecutor is using his peremptory challenges to deprive the defendant of his state constitutional right to a jury drawn from a representative cross-section of the community or his federal constitutional right to equal protection of the laws. That finding fundamentally alters the situation. After the finding, the prosecutor’s peremptory challenges of the minority jurors are presumptively unconstitutional: “At this point the statutory provision that ‘no reason need be given’ for a peremptory challenge (Pen. Code, § 1069) must give way to the constitutional imperative: the statute is not invalid on its face, but in these limited circumstances it would be invalid as applied if it were to insulate from inquiry a presumptive denial of the right to an impartial jury, [if] That right is paramount because the peremptory challenge is not a constitutional necessity but a statutory privilege.” {Wheeler, 22 Cal.3d at p. 281, fn. 28.) To overcome this presumptive unconstitutionality the prosecutor must establish that the challenges in question were in fact exercised on grounds of specific bias rather than group [1285]bias; the trial court must then make a finding on the ultimate issue, i.e., whether the prosecutor has sustained his burden of justification; and if it finds that he has, the court will deny the Wheeler or Batson motion and the defendant will be tried by the jury thus chosen.
If the defendant is convicted, he will be entitled to appellate review of the Wheeler or Batson ruling in his appeal from the judgment. (Pen. Code, § 1259.) The importance of such review is demonstrated by the fact that an incorrect Wheeler or Batson ruling is among the very few errors that are prejudicial per se. (Wheeler, 22 Cal.3d at p. 283; Batson, 476 U.S. at p. 100 [90 L.Ed.2d at p. 90].) As we explained in Wheeler, “ ‘The right to a fair and impartial jury is one of the most sacred and important of the guaranties of the constitution. Where it has been infringed, no inquiry as to the sufficiency of the evidence to show guilt is indulged and a conviction by a jury so selected must be set aside.’ [Citations.]” (22 Cal.3d at p. 283.) Meaningful appellate review of Wheeler or Batson rulings is obviously essential to protect that right. And it is all the more essential because the ruling in issue is largely discretionary. (Wheeler, 22 Cal.3d at p. 282; Batson, 476 U.S. at p. 100, fn. 21 [90 L.Ed.2d at p. 89].) “At a stage of [jury] selection that involves the exercise of discretion both by counsel and by the trial court, judicial review is the best guarantee of due process.” (Note, The Cross-Section Requirement and Jury Impartiality (1985) 73 Cal.L.Rev. 1555, 1594.) This is so, of course, because in making a discretionary ruling the trial court by definition finds less guidance in the law and hence may run a greater risk of error. It is true that appellate review of such rulings is often more difficult for the same reason. But the solution is to strengthen, not weaken, the process of appellate review: “Rather than abandon meaningful review of decisions made in the discretionary phase of juror selection, the judiciary should maximize the extent to which exclusions must turn on reviewable elements.” {Id. at p. 1593.)
The primary element of all appellate review is the record. Without a record sufficient for its needs an appellate court cannot even begin to discharge its constitutional and statutory duties. In the present case the record is adequate to enable us to determine whether there is factual and legal support for the prosecutor’s objective reasons for striking the eight minority prospective jurors. (Part II, ante.) But the record is wholly inadequate to allow us to make the same determination as to his subjective reasons. Thus there is no record whatever to support the prosecutor’s claims that Mrs. Smalley was a “very nervous person” and gave the defendants a “very noticeable smile”; that Mr. Kirstel was a “very tired person” and “friendly-appearing” towards the defense; that Mrs. Sobel was a “very tired-appearing person” and gave the defendants a “very sympathetic look”; that Mr. Berliner was “weird” and dressed “out of the mainstream,” and that the [1286]prosecutor was “unable to relate” to him; that Ms. Storey had a “very defensive body disposition,” did not look at the prosecutor when introduced, and had a pulse of over 100 when discussing the death penalty; that Mrs. Tamboura was an “overweight person” with “poorly groomed” hair and “unkempt” clothes, was “breathing very fast” when discussing the death penalty, and “didn’t appear to relate” to the prosecutor; and that Ms. Fukada seemed “very shy.”
Indeed, the record was inadequate for this purpose even at the trial level. After the prosecutor gave his reasons the court offered defense counsel the opportunity to respond. Counsel for codefendant replied that “obviously” he was unable to discuss the prosecutor’s “feelings about this, that and the other,” and that the “off-hand impressions” of the prosecutor “cannot be controverted at all.” Counsel for defendant agreed that “much of the impressions, statements and reasons are not reflected by the record, and they concern jurors that have been passed for cause.” Although the prosecutor insisted that most of his reasons were on the record, he conceded that “The ones obviously of the feeling[s] against the parties are not necessarily on the record . . . .” Expressing his frustration, counsel for codefendant concluded by explaining, “Your Honor, this is one of the problems, and I see it increasingly as we have played out this motion, is that [the prosecutor] now can use all kinds of out-of-the-record reasons for doing this, that and the other, which are totally unrebuttable. ... I think it’s impossible for me to recall whether somebody smirked at [the prosecutor] or not or whether somebody gave a smile to one of the rest of us. Who knows? But this is the problem.” The court ignored the problem and proceeded to rule on the motion.
As an appellate court, however, we cannot ignore the problem. Just as the lack of a record prevented defense counsel from controverting the prosecutor’s subjective reasons, so too it bars us from holding those reasons to be adequate. We cannot presume that one party’s recollection of the facts is necessarily more accurate than the other’s. For example, in argument on the motion the prosecutor reiterated his charge that Mrs. Tamboura was “very poorly groomed”; but counsel for codefendant disputed that claim, and told the court that “I don’t recall [Mrs.] Tamboura being disheveled . . . .” Moreover, the record that we do have demonstrates that the prosecutor’s memory of the facts underlying his objective reasons was faulty in a number of instances (part II, ante)-, we cannot presume that his memory somehow became infallible when he recited the far more elusive facts on which he based his subjective reasons. Nor can we presume that the trial judge independently recalled the facts in the same way as the prosecutor: during voir dire the judge had no knowledge of the prosecutor’s reasons for his peremptory challenges, and hence had no incentive to note or remember [1287]any distinguishing characteristics of the jurors challenged; and in any event his memory was evidently subject to the same human frailties as the prosecutor’s.40
It is not enough to say, as do the majority, that we should give great deference to the trial courts’ rulings on Wheeler and Batson motions. The law is replete with instances in which appellate courts defer to the discretion of trial courts yet insist on a record for the purpose of determining whether that discretion was lawfully exercised. One of the most common examples is a motion invoking the trial court’s discretion to exclude admissible evidence if its prejudicial effect substantially outweighs its probative value. (Evid. Code, § 352.) Even though appellate courts give great deference to the rulings of trial courts on such motions, it is settled that in each case “the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value,” and the admission of such evidence without making that record is error. (People v. Green (1980) 27 Cal.3d 1, 25-26 [164 Cal.Rptr. 1, 609 P.2d 468]; accord, People v. Burgener (1986) 41 Cal.3d 505, 527 [224 Cal.Rptr. 112, 714 P.2d 1251].)
In the present context, it is the prosecutor who has the burden of making a showing that overcomes the prima facie case of discrimination found by the trial court. It is therefore also the prosecutor who must make a record of such showing that is adequate for appellate review. Indeed, he is the only party able to do so, because only he knows why he is challenging each particular juror. Having both the duty and the opportunity to make the necessary record, the prosecutor must be held responsible for its absence.
We adopted the Wheeler rule because we recognized our responsibility to insure that the constitutional right to a jury drawn from a representative [1288]cross-section of the community “not be reduced to a hollow form of words, but remain a vital and effective safeguard of the liberties of California citizens.” (22 Cal.3d at p. 272.) Applying that principle, both this court and the United States Supreme Court thereafter warned that the constitutional rights protected by the Wheeler and Batson rules would be defeated if the prosecutor were allowed to discharge his burden by giving vague reasons for his presumptively discriminatory challenges. Thus in Turner we admonished that “If such vague remarks were held to satisfy the prosecution’s burden of rebutting a prima facie case of group discrimination, the defendant’s constitutional right to trial by a jury drawn from a representative cross-section of the community could be violated with impunity.” (42 Cal.3d at p. 725.) And in Batson the United States Supreme Court likewise cautioned that “If these general assertions were accepted as rebutting a defendant’s prima facie case, the Equal Protection Clause ‘would be but a vain and illusory requirement.’ ” (476 U.S. at p. 98 [90 L.Ed.2d at p. 98].)41
A fortiori, these fundamental guaranties would also be nullified if a reviewing court were to hold sufficient the showing that the prosecutor offers us here—i.e., subjective reasons that are not only vague in content but are unsupported by any record whatever. Because a defendant can neither rebut such reasons at his Wheeler hearing nor challenge them on appeal, they would constitute a procedural barrier to redress as insuperable as the former rule of Swain v. Alabama (1965) 380 U.S. 202 [13 L.Ed.2d 759, 85 S.Ct. 824], overruled in Batson (476 U.S. at p. 100, fn. 25 [90 L.Ed.2d at p. 90]). And our condemnation of the Swain rule in Wheeler is equally applicable here: “It demeans the Constitution to declare a fundamental personal right under that charter and at the same time make it virtually impossible for an aggrieved citizen to exercise that right.” (22 Cal.3d at p. 287.)
[1289]V
Not only does the record fail to support both the objective and the subjective reasons offered by the prosecutor for his peremptory challenges of the eight minority prospective jurors, it also fails to show that the trial court fully discharged the duties required of it by our decisions. (Part III, ante.) As we have reiterated numerous times, Wheeler recognized the general duty of the trial court “to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.” (22 Cal.3d at p. 282.) Implementing that rule, Hall, Turner, and Snow required the trial court (1) to make a “further inquiry” into any of the prosecutor’s proffered explanations that are implausible or suggestive of bias, and (2) to make a “sincere and reasoned” determination whether the explanations (a) are “genuine,” i.e., were in fact the reasons why the prosecutor struck the particular juror, and (b) are legally sufficient, i.e., invoke grounds of specific bias rather than group bias. (Hall, 35 Cal.3d at pp. 167-169; Turner, 42 Cal.3d at pp. 727-728; Snow, 44 Cal.3d at p. 226.)
In the case at bar the trial court performed, at most, only the last of these duties. Although as shown above (part II, ante) many of the prosecutor’s proffered explanations were either implausible or suggestive of bias, the court made no inquiry into any of them; instead, as in Hall and Turner, in each instance the court simply “listened to the prosecutor without question” (42 Cal.3d at p.727).
The court then determined the motion by an oral ruling that began, “As far as the three groups mentioned initially, Blacks, Jewish and Orientals, in every instance [the prosecutor has] given an explanation for his reasons, . . .” To so state, of course, is simply to note the fact—which no one questions—that the prosecutor gave certain explanations (“specific reasons”) for the challenges in issue; it does not find that those explanations were either genuine or legally sufficient. The court continued its oral ruling with a rambling statement that borders on the unintelligible.42 Viewed generously and in light of other remarks by the court, the statement may mean the court generally understood the difference between group bias and specific bias. And the court ended its ruling by saying, “there are no jurors in that particular class that the court feels that the challenge was exercised on an undue bias basis.” Beneath its tortured syntax this remark may be taken [1290]to imply a finding that the prosecutor’s explanations were legally sufficient, i.e., that each invoked a ground of specific rather than group bias.
But it is no more than that—in particular, it does not imply finding that the prosecutor’s explanations were bona fide. Indeed, the record expressly refutes any such implication. At the outset of the hearing, before the prosecutor offered his reasons, counsel for codefendant made the following motion: “If the prosecution is now going to attempt to explain what appears to be a systematical exclusion, I’d ask the prosecutor be put under oath. I think it’s the only fair way in order to assure all on the record that the reasons given are those specifically which the prosecutor had in mind in making his peremptory challenges.” The court asked for the purpose of the motion, and counsel reiterated, “So that we are all assured that he tells the truth in terms of his reasons for excluding or attempting to justify the exclusion of certain classes of persons.” The prosecutor opposed the motion and the court denied it. In so doing, however, it made the following ruling: “I will accept the statements of counsel as an officer of the court on the record as to the voir dire of these jurors before the court.” In other words, the court declared in advance that it would “accept” as true each of the prosecutor’s assertions as to why he struck the challenged jurors, simply because he is “an officer of the court.” The court thus formally abdicated its duty to determine whether the proffered explanations were genuine. Here, as in Hall (35 Cal.3d at p. 169), “Such abdication is inconsistent with the court’s obligations under Wheeler, and on authority of that case must be held to constitute error requiring reversal.”
VI
I turn now to the majority’s brief discussion of the Wheeler issue. (Ante, pp. 1215-1222.) The majority go astray on both the facts and the law. First, their cursory summary of the prosecutor’s reasons {ante, pp. 1218-1219) is inadequate in two respects: to the extent it relies on objective reasons cited by the prosecutor it omits the many facts of record identified herein (part II, ante) that reveal those reasons to be either implausible or suggestive of bias; and to the extent it relies on the prosecutor’s subjective reasons, it allows the prosecutor to overcome a presumption of unconstitutionality by making claims that are unsupported by any record whatever and thus deny the defendant his right to judicial review (part IV, ante).
Second, the majority’s deference to the trial court’s ruling herein is predicated on their belief that “there is nothing suggesting that the court misunderstood its obligation to evaluate the prosecutor’s explanations.” (Ante, p. 1218.) But as I have just explained (part V, ante), the record demonstrates that the trial court in fact misunderstood its obligations—after defendant’s [1291]prima facie showing of discrimination—(1) to inquire further into the reasons offered by the prosecutor and (2) to determine if those reasons were genuine.
The majority also err on the law. They claim to “return to a standard of truly giving great deference to the trial court in distinguishing bona fide reasons from sham excuses.” (Ante, p. 1221.) But the matter is unfortunately not that simple. Even the most conscientious trial judge can be misled by such extraneous pressures as a reluctance to dismiss the venire after some or all of the jurors have been seated, or a felt urgency to begin taking testimony in a trial expected to be lengthy, or a natural disinclination to disbelieve assertions of good faith made by an attorney in open court. An appellate court, of course, is removed from such pressures. For this and other reasons we have recognized that although appellate courts should generally defer to trial courts in factual or discretionary matters, “deference is not abdication.” (People v. McDonald (1984) 37 Cal.3d 351, 377 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011].)
That admonition applies no less in the present context: as we summarized the matter in Turner (42 Cal.3d at p. 720, fn. 6), “To the extent that a trial court’s ruling on the proffered explanation of a prosecutor turns on the latter’s credibility, we agree with the United States Supreme Court that ‘a reviewing court ordinarily should give those findings great deference.’ (Bat-son v. Kentucky, supra, 476 U.S. at p. 98, fn. 21 [90 L.Ed.2d at p. 89].) Our decisions demonstrate, however, ‘ordinarily’ does not mean ‘inevitably’: in some cases the reviewing court may conclude that the explanation is inherently implausible in light of the whole record. And even when there is no doubt of the prosecutor’s good faith, the issue whether a given explanation constitutes a constitutionally permissible—i.e., nondiscriminatory—justification for the particular peremptory challenge remains a question of law. ” (Italics added.) (Accord, People v. Granillo (1987) 197 Cal.App.3d 110, 120 [242 Cal.Rptr. 639].)
The majority also disapprove Trevino on two grounds, but neither is well taken. Relying mainly on a dissenting opinion in that case, the majority begin by condemning Trevino because it held insufficient the prosecutor’s subjective reasons for striking the minority jurors. (Ante, pp. 1219-1220.) But I have already explained why a reviewing court should not accept subjective reasons on a silent record. (Part IV, ante.) Trevino was merely the first case to reject such reasons as insufficient; the issue was simply not raised on the facts of Wheeler, Hall, or Turner.
Secondly, the majority disapprove Trevino because it gave some weight to the fact that certain of the prosecutor’s stated grounds for striking minority [1292]prospective jurors applied equally well to nonminority jurors, yet he did not challenge the latter on those grounds. (Ante, p. 1220.) The majority seek to justify such disparate treatment by theorizing that a prosecutor may give a different weight to the same factor when the “mix” of the jurors changes because of excusáis, or when the prosecutor runs low on peremptory challenges. (Ibid.) For example, the majority speculate that the prosecutor may use his peremptory challenges “freely” early in the voir dire but “be more hesitant” later when he has fewer challenges left. (Ante, p. 1221.) Yet the majority never tie this speculation to the facts of this case—i.e., they never show that here the prosecutor struck the minority prospective jurors early in the voir dire, or that the nonminority jurors with similar backgrounds were called to the box later in the voir dire. Without such a showing the majority’s argument remains merely empty rhetoric.
By contrast, in appropriate cases a comparison of the prosecutor’s treatment of minority and nonminority prospective jurors can be a highly useful analytical tool: when the record shows disparate treatment and it remains unexplained, how else is a court to determine the genuineness of the prosecutor’s claimed reason? In these circumstances the inference that the claimed reason is not the actual ground of the challenge may not only be reasonable, it may be compelling. To prohibit courts from drawing that inference in proper cases will deny them a valuable tool that aids them in discharging their duties under Wheeler and Batson.
Even harder to explain is why the majority choose to attack Trevino for this issue. Virtually every one of our decisions both before and after Trevino relied on this same analytical technique. Thus in Wheeler we authorized the technique by plain implication when we said that in seeking to justify his challenges the prosecutor may “demonstrate that in the course of this same voir dire he also challenged similarly situated members of the majority group on identical or comparable grounds.” (22 Cal.3d at p. 282.) If the prosecutor may do so, of course, the defendant or the courts may do the converse, i.e., may show that although the prosecutor had “identical or comparable grounds” to challenge “similarly situated members of the majority group,” he refrained from doing so. This implication was strengthened in People v. Allen (1979) 23 Cal.3d 286, 291 [152 Cal.Rptr. 454, 590 P.2d 30], when we reasoned that the defendant made a prima facie case of group bias in part by showing that the prosecutor had struck certain “black jurors to whom he had addressed questions and whose answers revealed backgrounds and family contacts that were similar to white jurors with whom the prosecution was satisfied.”
The Wheeler implication became a square holding in Hall, when we rejected the prosecutor’s reasons as implausible largely because they were [1293]equally applicable to nonminority jurors whom the prosecutor did not challenge. (35 Cal.3d at p. 168.) Indeed, as noted above we even declared that “Such disparate treatment is strongly suggestive of bias, and could in itself have warranted the conclusion that the prosecutor was exercising peremptory challenges for impermissible reasons.” {Ibid., italics added.)
With such precedents on the books, we had ample authority in Trevino to employ the same technique when the facts warranted it. Nor was Trevino the last case to do so: as noted above (part III, ante), in Turner we repeatedly compared the reasons given by the prosecutor with similar factors present in the voir dire of the jurors whom he did not challenge. (42 Cal.3d at pp. 723-727.)
Our Courts of Appeal have also used this analytical tool as an aid in determining the sufficiency of the prosecutor’s reasons. (E.g., People v. Granillo, supra, 197 Cal.App.3d 110, 120-121.) No Court of Appeal has doubted the propriety of giving weight to such “disparate treatment evidencing disingenuousness.” (People v. Clay (1984) 153 Cal.App.3d 433, 436 [200 Cal.Rptr. 269].)
The Wheeler rule has been followed, moreover, in a number of our sister states. (See, e.g., Fields v. People (Colo. 1987) 732 P.2d 1145, 1148-1157; State v. Gilmore (1986) 103 N.J. 508 [511 A.2d 1150, 1157-1169]; Riley v. State (Del. 1985) 496 A.2d 997, 1010-1013; State v. Neil (Fla. 1984) 457 So.2d 481, 484-487; Commonwealth v. Soares (1979) 377 Mass. 461 [387 N.E.2d 499, 508-518]; cf. State v. Crespin (1980) 94 N.M. 486 [612 P.2d 716, 717-718].) None of these courts has questioned the analytical tool now criticized by the majority.
For example, the New Jersey Supreme Court recently embraced the use of this very technique in State v. Gilmore, supra, 511 A.2d 1150. There a Black defendant, represented by Black counsel, was tried by a White prosecutor and convicted by an all-White jury. The prosecutor had struck seven Black prospective jurors by peremptory challenges. The New Jersey intermediate appellate court reversed the judgment on Wheeler grounds, and the state supreme court upheld its decision in an opinion that closely tracks the reasoning of both Wheeler and Batson, quoting repeatedly from each. In particular, when giving his reasons for striking each of the seven Black prospective jurors the prosecutor in Gilmore explained that he wanted to put on the jury persons who were “without maternal family instincts,” were “of the professional type,” and were of a high level of intelligence; he also relied on his “gut reaction” to the individual jurors. (511 A.2d at p. 1167.) The New Jersey Supreme Court tested the genuineness of these explanations by turning to the record to learn whether the prosecutor had also [1294]struck White prospective jurors on the same grounds; and the court held that his failure to do so was “highly probative” in sustaining the defendant’s burden of proving a denial of the constitutional right to an impartial jury. (Ibid.) Thus the court reasoned that “In assessing his proffered justifications, the Appellate Division rightly found highly probative his failure to exercise peremptory challenges to remove white prospective jurors who by his own criteria ought to have been removed. For example, whereas two black women were removed because of their ‘maternal family instincts’ and because they were not ‘of the professional type,’ six white women, all of whom by the assistant prosecutor’s criteria presumably had ‘maternal family instincts,’ were permitted to serve. And five of these six were not ‘of the professional type,’ three being housewives and two being secretaries. The only real difference between the two black women and the six white women was their race.
“Moreover, given that by the assistant prosecutor’s own admission the State had a substantial case and that the issue to be resolved was not very complicated—essentially one of identification of defendant as the perpetrator—the Appellate Division justifiably found that ‘the assistant prosecutor’s explanation that only the intellectual type was suitable for jury duty lacks genuineness.’ [Citation.] There was ‘no reasonable relevancy between the issues to be resolved by the jury and the high intellectual achievement of jurors,’ [citation] all the more so since the record did not suggest that he insisted upon intellectual achievement by white jurors.” (Italics added, fn. omitted.) (511 A.2d at p. 1168.)
Federal courts also use this analytical tool. For example, in Roman v. Abrams (2d Cir. 1987) 822 F.2d 214, a White defendant was convicted principally on the testimony of a Black informant who had turned state’s evidence. During voir dire the prosecutor struck numerous White prospective jurors and allowed only three to serve on the jury. On federal habeas corpus the district court found a prima facie case that the prosecutor had challenged the White jurors on racial grounds alone, then rejected the prosecutor’s stated attempts at justification as either trivial, incredible or strongly suggestive of bias. The Second Circuit Court of Appeals upheld that finding, reasoning first that “Such general responses as ‘lifestyle’ and ‘background’ were properly rejected as inadequate statements of racially neutral reasons, given the prima facie case of discrimination” shown by the defendant. (Id. at p. 228.) Other proffered explanations, e.g., that a prospective juror’s knowledge of bookkeeping or computers might prevent him from accepting the reasonable doubt standard of proof, “were on their face unworthy of belief.” (Ibid.) Finally, in language particularly relevant here the Second Circuit stressed that, “though the law enforcement connection was used as an explanation for some of the challenges to White prospective [1295]jurors, some non-white prospective jurors with similar connections went unchallenged by the State.” (Ibid., italics added.)
It is difficult to understand why the majority disapprove Trevino on this issue in light of the foregoing precedents in Wheeler, in Hall, in Turner, and in similar state and federal decisions. If the majority truly intend to adhere to the Wheeler rule, they cannot rationally reject this integral step of the Wheeler-Hall-Turner analysis.
VII
In the case at bar the prosecutor was required to justify his peremptory challenges of eight minority prospective jurors. In Wheeler we held that such a justification fails if the burden “is not sustained as to any of the questioned peremptory challenges,” because “the complaining party is entitled to a random draw from an entire venire—not one that has been partially or wholly stripped of members of a cognizable group by the improper use of peremptory challenges.” (22 Cal.3d at p. 282, italics added.) It follows that reversal is required under the Wheeler rule even if only one prospective juror is improperly struck on discriminatory grounds. (Johnson, 22 Cal.3d 296; People v. Granillo, supra, 197 Cal.App.3d 110, 121.) The same is true under the Batson rule: “we emphasize that under Batson, the striking of a single black juror for racial reasons violates the equal protection clause, even though other black jurors are seated, and even when there are valid reasons for the striking of some black jurors.” (United States v. Battle (8th Cir. 1987) 836 F.2d 1084, 1086, and cases cited.) On the record before us, the People have not met this standard of proof. These errors are prejudicial per se. (Wheeler, 22 Cal.3d at p. 283; Batson, 476 U.S. at p. 100 [90 L.Ed.2d at p. 90].) Wheeler and Batson therefore compel reversal of the judgment.
Broussard, J., concurred.
Appellant’s petition for a rehearing was denied May 4, 1989. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
While Batson involved Blacks, there is no reason to believe the Supreme Court is any less concerned about discrimination against other ethnic minorities. (See, e.g., Shaare Tefila Congregation v. Cobb (1987) 481 U.S. 615 [95 L.Ed.2d 594, 107 S.Ct. 2019] [held, Jews are a cognizable group for purposes of federal civil rights statute (42 U.S.C. § 1982)].)
The case was tried in Santa Clara Superior Court, sitting in the City of San Jose.
In our Turner opinion we went on to advise trial courts that such findings should be express rather than implied. (42 Cal.3d at p. 719, fn. 3; see also id. at p. 729 (cone. opn. of Panelli, J.).) This case was tried before Turner.
The prosecutor also said the exact opposite, to wit, “She did say . . . that if the death penalty was appropriate, she didn’t believe that she’d be unable to vote for it” (italics added). For purposes of this discussion we may assume that in so saying either he misspoke or his words were incorrectly reported.
I shall refer herein to prospective jurors who were accepted by both parties and therefore served on the jury as “Juror_” or “Alternate Juror__”
Thus Mr. Kirstel explained to the court, “there are times when for a particularly heinous crime I might feel that it’s deserved . . . I’m not either a firm believer against or for. I believe the circumstances determine.” The court then asked him whether he would be reluctant to vote for death if he believed it was the appropriate penalty after hearing all the evidence; he replied, “Not if I thought the circumstances warranted it.”
There is no contrary evidence in the record.
“Q. [By the prosecutor] Did you know Joe Gardner when you were at Fairoaks? A. I’m trying to remember. I don’t think he was the principal then.
“Q. I’m thinking of a female."
Even if the prosecutor had meant the name “Jo” (i.e., a diminutive of “Josephine”), the name is a homonym of the more common name “Joe,” and the trap remained set.
“Q [By the court] Defendants are black in this case. Does that give you any concern about sitting as a juror here? A. No.
“Q. Do you have any feeling that a defendant is more likely to be guilty or to be guilty of a violent crime simply because he is black? A. No.
“Q. And you recognize that the law is colorblind in that particular? A. I do.
“Q. And the fact that they’re black has no bearing whatsoever on any issue the jury has to determine? A. Yes.
“Q. And on the other hand for that reason they’re not entitled to special consideration either? Do you beliéve that? A. Yes.
“Q. You would treat it like all other persons? A. Yes.”
In this connection it may be noted that the prosecutor conceded Mrs. Sobel “did not feel that there was anything wrong with the death penalty . . . .” Indeed, her answers on voir dire show that she actually leaned towards imposition of that penalty.
Even the prosecutor conceded that Mr. Berliner “thought there should be a death penalty .. . .”
“Q. [By the prosecutor] You mentioned also when the judge asked you that it was hard, a little hard to imagine passions and sympathies not coming up in the case. Specifically, what did you mean just in general terms? What types of things were you thinking of that made you hesitate? A. I don’t know if I recall. I got the impression that the instruction was saying to be completely dispassionate and it doesn’t seem to me that is possible to do.
“Q. Oh, sure. You are right. [To say] . . . that we don’t have any personal feelings, any sympathies, any passions or prejudices is asking a great deal because of course we do. But they are not allowed to come into a decision on the facts of whether or not a person is guilty. Those are not part of the evidence. A. Agreed.
“Q. But a person who recognizes those can set those aside. Did you have some specifics of passion or sympathy you thought might come up? Something that flashed through your head? A. No, nothing specific. It was just the general concept of paying no mind to one’s feelings.
“Q. Did you have it in relation to the defendants? You thought you might feel sympathy toward them or toward the victim? A. Nothing in particular.” (Italics added.)
The entire discussion of the point on voir dire was as follows:
“Q. [By the court] Do you have any opinion as to whether police agencies treat black persons differently than other persons in any way? A. One hears claims and counterclaims.
“Q. I am asking for your opinion from whatever source, do you have as you sit there now, do you have an opinion on the subject? A. No, I don’t think so.
“Q. You recognize that the law is colorblind and that the question of a person’s race is entirely immaterial or irrelevant on the question of his guilt or innocence or what penalty should be imposed? A. Yes.
“Q. At the same time, persons are not entitled to any special consideration for that reason either. Do you have any problem with that? A. No problem.”
The prosecutor asked Mr. Berliner no questions on this topic in his voir dire.
“Q. [By the prosecutor] The judge will tell you that the standard of proof is that the case must be proven beyond a reasonable doubt, not to a scientific certainty, not beyond a shadow of a doubt as you may hear in the movies or stuff once in awhile, but beyond a reasonable doubt. If that differs from the standard that you are used to in your training, would you have any problem at all following the standard the judge gave? A. I don’t think so. Have to be up to my own notion if there is a doubt, a reasonable doubt.
“Q. But you wouldn’t, say, impose engineering standards over the evidence, the police work or whatever, you would just follow whatever the judge told you the standards were? A. Yes. I don’t see how the engineering standard would be applicable.”
The prosecutor asked essentially the same questions in his voir dire of the immediately preceding prospective juror, Dan Forster, who was also an engineer. Mr. Forster gave essentially the same answers, but the prosecutor nevertheless accepted him as a juror.
Indeed, the implausibility of the prosecutor’s belated concern about this minor brush with the law by Ms. Storey’s brother-in-law is underscored by his apparent unconcern about more serious criminal involvement of relatives of non-Black prospective jurors. Thus one such juror had a brother who had been incarcerated for repeated drunk driving offenses and a second brother who had served a year on federal probation for interstate shipment of stolen goods. Yet the prosecutor allowed that juror to serve, accepting her assurance that the experiences would not bias her against the People.
Thus Juror Kathy Heredia recounted that when she was a teenager she and her friends had been harassed by the police on a number of occasions: “It always seemed like we were being pulled over, searched, you know, the car ....’’ She further conceded that some of her teenage friends had been arrested and that a neighbor who harassed her was arrested numerous times and finally committed to the Youth Authority.
“Q. [By the prosecutor] The law is colorblind when it comes to race. There is no different rule anywhere in the law based upon what race a person is. Do you have any problem at all with that concept? A. No. I don’t have any problem with the concept.
“Q. Okay. The way you said that I get the feeling there’s a second sentence? A. Well, I don’t fully believe the statement.
“Q. Okay. Do you have a feeling that different people get treated different ways because of being different races? A. Sure. I mean it would be illogical to say anything else.
“Q. Okay. Can you give us an example of the kind of thing—A. You live in America.
“Q. You’re—well, let’s stick to California. I take it do you feel black people get treated differently by the courts in California than yellow people or white people or—A. I would say [1267]white people are treated different from the other races in the State of California and every other state in the United States strictly because white is a majority.
“Q. Okay. And I take it you mean they have more leniency? A. Sure they do.”
“Q. [By the court] The fact that the defendants here are black, does that create any problem for you? A. That creates no problem for me.
“Q. You realize that has nothing to do with the question of guilt or innocence? A. That definitely has nothing to do with it.”
Interestingly, Ms. Storey’s denial of any prejudice in favor of Blacks is given a ring of truth by her candid admission of a potential prejudice on the ground not of race but of lifestyle: “There is only one type of person and I do my best to control it, but if I was sitting on a jury for this person I would probably be inclined to be a little prejudiced because they do make me quite nervous. That would be if the person was white with long blond stringy hair and dirty. I am scared of those people and that’s one of my prejudices.”
By contrast, three prospective jurors stated that some police officers will lie on the witness stand, and another three agreed that some police officers are dishonest. The prosecutor did not challenge any of these six prospective jurors, however, and allowed each to serve. None is Black.
The prosecutor expressed no such concern when Juror Marilyn Christensen also voiced a strong reluctance to serve on the jury because of the demands of her job. Mrs. Christensen is not Black, and strongly favored the death penalty.
The entire discussion of the point on voir dire is as follows: “Q. [By the court] Okay. In a case of this kind it’s not unlikely that the news media may . . . take an interest in it while it’s in trial and carry stories on it. And stories in the news media are not always accurate and do not always contain relevant information as to the case. If you were selected as a juror it [1272]would be your duty to avoid reading anything about it in the paper or watching anything about it on the T.V. A. Just as long as I get to read Ann Landers and funny papers, it’s okay.
“Q. Okay. But do you feel you could do that, avoid reading or watching or listening to anything about it while it’s in trial? A. Yes.”
“Q. [By counsel for defendant] You do much reading in the daily papers? A. No—sports page is all.
“. . . I don’t read the newspapers and don’t listen to much news because it makes me angry-
“Q. [By counsel for codefendant Fields] Does news in general make you angry? A. Yeah. That’s why I only read the sports pages.
“Q. Okay. You mean you don’t like politics and crime news and that kind of stuff? A. I—I just set it aside.”
For example, the prosecutor asked Mrs. Tamboura, “If you decided that it was the appropriate thing under the law, but you didn’t like the law, and you did have the ability, if you [1273]wanted to, to vote for the other even though it wasn’t appropriate, do you know what you’d do?” She replied, “I don’t think that I would vote against it because I didn’t like it, okay? The law is the fact. And there are a lot of facts I don’t like.” Again the prosecutor asked, “You come down to the point where you think the law and the facts make it appropriate to vote for the death penalty. Your moral stand, your view towards the whole thing is that you shouldn’t do that. You would be willing to follow the law?” She replied simply, “I have to follow the law.” Finally Mrs. Tamboura assured the prosecutor that her feeling about the death penalty would not affect her deliberations either on guilt or special circumstances.
“Q. [By the court] Okay. The defendants here are black. Does that give you any problem as far as being fair and impartial in this matter? A. I don’t think so.
“Q. All right. You realize that that fact has no bearing on the person, whether they’re guilty or innocent or anything regarding the merits of the case. Do you understand that? A. Yes.
“Q. And do you believe that? A. Yes.”
“Q. [By the prosecutor] The way—sometimes the way people answer questions makes attorneys’ antennas arise just by what they said. You were asked by the judge if you thought it would have any bearing on the case if the defendants were black. And you answered no, but by doing so you said that, T don’t think that would have anything to do [with] it.’ When you say that our antenna goes up. I’d ask you to expand on that, if you would. A. I don’t know. I don’t see people as black and white. I see them as people. So what bearing does color have?
“Q. Well, according to the law and according to the way the law is structured it has absolutely no bearing at all, but the reason I ask that is you didn’t say no, you said, T don’t think so.’ And it made me wonder if you had anything else you wanted to say. A. No.
“Q. Okay. Race, age of the defendants, their personalities in court, those sorts of things for the purposes of guilt or innocence are totally irrelevant. Do you have any problem with that idea? A. No.”
“Q. [By the prosecutor] What kind of thing was it? A. He said I ran a red light, and I said I didn’t run a red light.
“Q. Was it a question of whether or not it had turned from yellow to red and you’d made it through or—A. Right.
“Q. Okay. Did that give you any feeling to you personally of the honesty of police officers, for instance? A. No. I don’t think so. I think police officers are people.
“Q. Okay. Do you think they’re any more credible than the average citizen because they’re officers or any less credible because they are? A. No.”
The prosecutor expressed no such concern when Juror Dolores Chaidez disclosed a similar but more aggravated experience: for the previous 18 years several of her neighbors had been harassing her family, and she had been obliged to call the police “lots of times” and eventually obtain a restraining order against them. The prosecutor did not challenge her, however, on this or any other, ground.
“Q. [By the prosecutor] You mentioned here a matter which I assume is most trivial, but the traffic ticket on Christmas Eve. I take it that that matter is not something that you have thought about much ever since it happened? A. I ran—evidently I pulled a Hollywood stop and ran a red light. It was about three o’clock in the morning and he said, ‘have a nice Merry Christmas,’ and I had to laugh.”
Defendant concedes that at least some of the reasons given by the prosecutor for excusing the third Black prospective juror—i.e., his criminal record, his views on police treatment of Blacks, and his acquaintance with prison inmates—-were supported by the record and could give rise to a specific bias against the prosecution in this case.
In one question, for example, the court summarized the whole procedure governing capital trials, both guilt and penalty phases, and asked Ms. Fukada if she understood it; the question covers an entire page of the reporter’s transcript. Another question described five different positions that prospective jurors might take towards the death penalty, and asked Ms. Fukada which was hers; this question covers the better part of a page. As it happens, Ms. Fukada was able to answer both questions without difficulty.
For example, in an effort to learn more about Ms. Fukada’s position on the death penalty, the prosecutor asked her the following question: “Q. If you had a choice, let’s say, someone said, well, Miss Fukada, we are going to let you vote on the death penalty for all California, you would vote against it. You would eliminate the death penalty, you would vote against it if you had a choice?
“Let me ask that a different way.
“What I meant was if we had an election today as to whether or not to get rid of it and someone would say, we will let you decide, you would vote against it being used in this state?”
The prosecutor gave no subjective reasons for striking Mrs. Wong.
“Q. [By the court] Do you think you’d have any difficulty sitting in judgment on other persons, sitting as a juror? A. I think it would be hard to judge.
“Q. It would be hard? A. Yes.
“Q. But do you think you’d be able to do that? A. Yeah, I think I would. But I think it’s hard to judge someone.
“Q. Okay. But as a juror in effect you’re required to do that. A. M-hm.
“Q. Do you feel you could do that? A. Yeah.
“Q. All right.”
“Q. [By the prosecutor] Do you think you were under the speed limit? A. No. I don’t think I was under the speed limit, but I don’t think I was speeding that fast. . . .
“. . . I think I may be speeding. A lot of times I feel like I may be guilty, but I don’t think it was that far out.”
“Q. [By the court] Have you had any other contact with law enforcement? A. No, that’s the only one, I only got one ticket. I told the judge that’s the first ticket I ever got in my whole life so he said instead of fining $40, fine $20. Something like that. I can’t remember the exact detail.
“Q. Okay. All right. But that wouldn’t have any influence on what you would do here as a juror in any way? A. No.”
There is no contrary evidence in the record.
As the juror stated on voir dire, “I figured it was a bum rap. I figured, shit, I deserved it a lot of time[s] but not this time, you know.”
“Q. [By the prosecutor] ... do you think in any way that would make my job harder, the two stops you got for driving under the influence? A. No, I don’t feel so. I don’t think so.”
Despite his purported concern about the prospective jurors’ youth, “the district attorney made no effort to determine the jurors’ ages on voir dire nor did he inquire into any age-based biases the jurors might harbor.” (39 Cal.3d at p. 691.)
To avoid cumbersome locutions I shall refer to the party making the Wheeler motion as “the defendant” and his opponent as “the prosecutor,” even though these roles may occasionally be reversed. (Wheeler; 22 Cal.3d at p. 282, fn. 29.) The United States Supreme Court left open the question whether a prosecutor can make a Batson motion. (Batson, 476 U.S. at p. 89, fn. 12 [90 L.Ed.2d at pp. 82-83].)
For example, at the outset of the Wheeler hearing a dispute arose between the parties as to whether Mrs. Tamboura was Black or Indian. The judge intervened, saying, “I recall the juror. She said she was of Indian extraction.” Defense counsel had earlier suggested the parties stipulate that Mrs. Tamboura was of the race she listed in her questionnaire, i.e., Black. The judge objected, “How does the court handle this when the court has a clear recollection of the juror; what good is a stipulation that apparently is contrary to the facts?” Defense counsel repeated that Mrs. Tamboura was Black, but the judge insisted she was not, saying, “when she described her nationality, it was Indian and the court has a clear recollection that her features and her racial background was that of Indian, not Negro.” Once more the judge said he had “a clear recollection of the facts,” i.e., that Mrs. Tamboura was not Black but Indian, and concluded, “I just want the record to show what the court recalls of the juror.”
Despite his repeated claims of a “clear recollection” of Mrs. Tamboura’s race, the judge was wrong. Later in the hearing he admitted that he had confused Mrs. Tamboura with another prospective juror, Ms. Taha, who was in fact Indian: “I should go back on the record and indicate that I have made an error. I’ve been thinking about—about Miss Taha, when you were talking about Miss Tamboura so my remarks in that regard should be stricken. I had the wrong juror.” When the prosecutor described Ms. Taha, the judge conceded, “I recall her and I have the wrong name. So I apologize to you for that, and my remarks about that particular juror, Miss Tamboura, were not appropriate.”
In his concurring opinion in Batson (476 U.S. at p. 106 [90 L.Ed.2d at p. 94]) Justice Marshall expanded on the dangers of accepting generalized subjective reasons offered by the prosecutor: “Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons. How is the court to treat a prosecutor’s statement that he struck a juror because the juror had a son about the same age as defendant, see People v. Hall, 35 Cal.3d 161, 672 P.2d 854 (1983), or seemed ‘uncommunicative,’ King [v. County of Nassau (E.D.N.Y. 1984) 581 F.Supp. 493], at 498, or ‘never cracked a smile’ and, therefore ‘did not possess the sensitivities necessary to realistically look at the issues and decide the facts in this case,’ Hall, supra, at 165, 672 P.2d at 856? If such easily generated explanations are sufficient to discharge the prosecutor’s obligation to justify his strikes on nonracial grounds, then the protection erected by the Court today may be illusory.
“Nor is outright prevarication by prosecutors the only danger here. ‘[I]t is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal.’ King, supra, at 502. A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have come to his mind if a white juror had acted identically.”
According to the transcript the court said, “I do not think it’s saying that the prosecution agree—that the prosecution does not have right to exercise a peremptory challenge, or that it seems to me that the restriction based upon that on the prosecution by Wheeler, that it’s not to be done on the sole basis that the juror’s bias places him in a group. That it has to be done on an individual evaluation of each juror or if it’s a bias, the individual bias of a juror, and I can’t—. . . .”