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Court of Appeal:
Prosecutor, Not Judge, Must Give Reasons for Challenges
Stratton Says Batson/Wheeler Motion Improperly Denied; Conditional Remand Ordered
By a MetNews Staff Writer
Race-neutral reasons for the excusal of prospective jurors must be articulated by the prosecutor, not the judge, when the defense makes a Batson/Wheeler motion, Div. Eight of the Court of Appeal for this district held on Friday, returning the case to the trial court so that the deputy district attorney who rejected four out of five venirepersons who were Asian in the trial of an Asian man may provide an explanation.
Justice Maria E. Stratton wrote the unpublished opinion which conditionally remands the case of Wei Yang, who was convicted of kidnapping for robbery and making a criminal threat.
Stratton noted that under cases derived from the U.S. Supreme Court’s 1986 opinion in Batson v. Kentucky and the California Supreme Court’s 1978 decision in People v. Wheeler, where a criminal defendant makes a prima facie showing of discriminatory challenges, the second step is for the prosecutor to set forth race-neutral reasons, and, as a third step, the judge must assess the prosecutor’s credibility.
In Wei’s case, Los Angeles Superior Court Judge David C. Brougham did not proceed to the second step, finding that reasons for the challenges were evident.
Looks at Percentages
Disagreeing, Stratton wrote:
“[T]he prosecutor had stricken 80 percent (4/5) of the Asian-American prospective jurors seated for questioning.
“The record also shows that the prosecutor used four out of its first six peremptory challenges against Asian-American jurors, that is 66 percent (4/6).”
She remarked:
“Thus, the prosecutor’s use of her peremptories was disproportionate.”
Also, she pointed out, the questioning of the venirepersons was not extensive.
One of the four prospective jurors was properly excused based upon a negative experience with sheriff’s deputies at the Walnut station—where Yang was brought—but the “same cannot be said for the other three jurors,” Stratton said, declaring:
“[W]e do not find race-neutral reasons for the challenges to the remaining three Asian-American jurors sufficient to dispel a prima facie inference of discrimination.”
Step Two
She went on to say:
“Step two calls for the prosecutor, not the trial court, to give race-neutral reasons for challenging jurors…. If the prosecutor offers neutral explanations, the third step requires the trial court to decide whether the defendant has proven purposeful discrimination….
“Obtaining actual explanations from the prosecutor at these steps is critical….”
The judge must hear from the prosecutor, Stratton said, in order to determine the reasons stated were genuine.
“The prosecutor’s actual, articulated reasons are also critical to our review of a trial court’s determination at the third Batson/Wheeler step,” she added.
Judge’s Own Reasons
The jurist came to this conclusion:
“Here, the trial court offered its own reasons for the prosecutor’s peremptory challenges. Because it appears the court was denying the Batson/Wheeler motion at the prima facie step, the court was allowed to identify some neutral explanation based on the record without first asking the prosecutor for the actual reasons at that stage….The trial court never reached the second or third steps because it erroneously found appellant had not made a prima facie showing giving rise to an inference of discrimination. We decline to ascribe the trial court’s reasons to the prosecutor. The appropriate remedy when the record is devoid of the prosecutor’s articulated reasons for peremptory challenges is conditional remand for the trial court to address the second and third Batson/Wheeler steps: it should hear the prosecutor’s reasons for the peremptory challenges and decide whether they are credible.”
Stratton said that if the trial court decides on remand that the motion should be granted, “it may then vacate the conviction and order a new trial.”
The case is People v. Yang, B296271.
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