Metropolitan News-Enterprise


Monday, May 22, 2023


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Straying From CCP Proviso Causes Conviction Reversal

Opinion Says Prospective Juror’s Account of Negative Experience With Justice System, Relative’s Conviction

Were Presumptively Invalid Reasons for Peremptory Challenge Under Law Effective in 2021


By a MetNews Staff Writer


The Third District Court of Appeal on Friday reversed a man’s conviction on four counts of drug offenses because a peremptory challenge to a prospective juror was allowed on a basis that is presumptively invalid under legislation that went into effect on Jan. 1, 2022.

Code of Civil Procedure §231.7 provides in subd. (e):

“A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case: [¶] (1) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system…. [¶](3) Having a close relationship with people who have been stopped, arrested, or convicted of a crime.”

Cousin’s Experience

The prosecution at the trial of Moises Jamie Jaime utilized a peremptory challenge to disqualify a prospective juror who related to the judge and the attorneys, privately, that her “cousin was actually convicted of murder in this court.” She said she was adversely affected by the district attorney of the county setting forth, in a talk before her school class, evidence against the accused before the matter went to trial.

Retired San Francisco Superior Court Judge Anne Bouliane, sitting on assignment, perceiving the challenge to be reviewable in accordance with Batson/Wheeler standards, declaring:

“[B]ased on the district attorney’s statements...based on my view of everything… I don’t believe that this was a racially motivated challenge.

“So the Batson-Wheeler will be denied....”

Prosecutor’s Statement

The next day, the prosecutor announced:

“Due to our lengthy morning I didn’t refresh myself on the new update on the law. So when I had relayed that I didn’t think the defense raised a prima facia case, I was applying the previous standard of law.

“With that being said, the new update does require that when such a challenge is made that the other party must state the reasons that the peremptory challenge was exercised.

“I do believe that I did relay those reasons, specifically the specific incident raised by the potential juror regarding what seemed to be a very sensitive issue that happened and based on the sense that I got it was an experience that did affect and bother her.

“Therefore, the People exercised a peremptory challenge on that basis.”

Bouliane said:

“And so the Court—I was aware and am aware of the—there has to be a showing of reasonable inference of a systematic exclusion of a cognizable group. I didn’t think it was there.”

Mesiwala’s Opinion

Reversal came in an opinion by Justice Shama Hakim Mesiwala. Ordinarily, she said, a contention is forfeited if not raised in the trial court, but noted:

“[A]n exception to the forfeiture rule exists where the record shows an objection would be futile….While the futility exception to the forfeiture rule applies only in unusual and extreme circumstances…, we conclude such circumstances are present here.”

She explained:

“[T]he record shows that even if defense counsel had previously raised a specific section 231.7 objection, the court would have overruled the objection under former law….Under these narrow circumstances and the precise record here, we find that a timely and specific section 231.7 objection would have been futile.”

Presumption Not Rebutted

The jurist continued:

“The record… shows that the prosecutor provided no evidence to rebut the presumptively invalid reasons for exercising the peremptory challenge. The People argue that their reasons alone provide clear and convincing evidence to show the challenge was unrelated to [the prospective juror’s] perceived membership in a protected group and concerned her ability to be fair and impartial. We disagree. Allowing a party to use the presumptively invalid reasons to overcome the presumption would render section 231.7, subdivision (e) meaningless….

“Despite the lack of evidence to overcome the presumption, the trial court concluded the challenge was proper based on ‘the district attorney’s statements’ and its ‘view of everything.’ This was prejudicial error, and we reverse the judgment and remand the matter for a new trial.”

The case is People v. Jaime, 2023 S.O.S. 1605.


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