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Youth Is Not Protected Class for Jury Selection—C.A.
Opinion Says Kicking Potential Panelists Under Age of 25 Does Not Trigger Constitutional, Statutory Scrutiny
By Kimber Cooley, associate editor
Div. Six of this district’s Court of Appeal held yesterday that a potential juror’s youth does not render that person a member of a protected class triggering additional scrutiny for purposes of jury selection, declining to broaden the categories of statuses that attorneys are prohibited from considering in the voir dire process beyond those explicitly highlighted by the courts and the Legislature.
Jurisprudence establishes that attorneys may not seek to systemically exclude jurors based on their race, religion, gender, or sexual orientation and California statutes add other protected classes.
Yesterday’s opinion, written by Justice Hernaldo J. Baltodano and joined in by Presiding Justice Arthur Gilbert and Justice Kenneth Yegan, greenlights the consideration of a prospective juror’s youth in jury selection. The court also declared that a defendant is foreclosed from switching course on appeal by arguing, for the first time, that some of the peremptory challenges were based on the perceived race of the veniremen.
The question arose after defendant Shawn Hernandez was found guilty of conspiracy to commit first-degree residential burglary related to an attempted break-in of a Simi Valley home during the early morning hours of Jan. 9, 2023. During jury selection in the summer of 2023, his attorney objected to four of the prosecution’s six peremptory challenges based on the potential panelists allegedly being under the age of 25.
Batson/Wheeler Motion
Even though the attorney phrased the objection as a so-called “Batson/Wheeler” motion—named for the 1978 opinion by the state’s high court in People v. Wheeler and the 1986 U.S. Supreme Court decision in Batson v. Kentucky, each dealing with peremptory strikes purportedly used to exclude jurors based on race—Ventura Superior Court Judge Catherine Voelker treated the challenge as one made pursuant to Penal Code §231.5.
That section provides:
“A party shall not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of a characteristic listed or defined in Section 11135 of the Government Code, or similar grounds.”
Voelker noted that “age” is among the enumerated characteristics listed in §11135 and asked the prosecutor to “articulate juror by juror the basis for the exercise of the peremptories,” finding that the procedures set forth in the Racial Justice Act of 2020, codified at Penal Code §231.7 (“RJA”), applied.
Stated Reasons
After the prosecutor did so, the court overruled the objection, finding that the stated reasons—which included concerns over the attentiveness of one man and reservations that another potential panelist would be influenced by her college coursework focusing on restorative justice—were “supported by the record.”
Finding error, Baltodano wrote:
“We conclude that neither Batson/Wheeler, section 231.5, nor section 231.7 prohibits excusing jurors based on youth, alone. We also conclude the procedures of section 231.7 do not apply.”
He pointed out that although “age” is listed in §11135, the provision specifies that “[t]he protected bases referenced in this section have the same meanings as those terms are defined in Section 12926.”
That statute, in turn, defines “age” as “refer[ring] to the chronological age of any individual who has reached a 40th birthday.”
Based on the plain terms of the statutes, he reasoned:
“The law thus prohibits age discrimination in jury selection against persons age 40 or older but not those under age 25.”
Prospective Juror’s Age
Addressing the defendant’s contention that a prospective juror’s age may be raised in a Batson/Wheeler motion, Baltodano remarked:
“The youth of prospective jurors is not a valid basis for a Batson/Wheeler challenge. ‘A potential juror’s youth and apparent immaturity are race-neutral reasons that can support a peremptory challenge.’…Nor are young people a cognizable group for purposes of equal protection….Hernandez has cited no authority that supports his contention that excusing young jurors violated his right to due process.”
As to §231.7, he said that the RJA “was enacted to prevent discrimination” against potential jurors based on their “race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation.” Given that “youth” is not one of the enumerated categories or presumptively invalid reasons for dismissal, he concluded:
“ ‘[S]ection 231.7 has a narrower scope of protected classes than section 231.5.’…Thus, challenges pursuant to section 231.5 not covered by section 231.7 are litigated pursuant to Batson/Wheeler….But neither the procedure provided in section 231.7 nor the Batson/Wheeler procedure applies to claims based on youth, which is not a cognizable category. The trial court thus erred in applying the procedures, presumptions, and findings specified in section 231.7 to the claim of discrimination based on youth.”
Harmless Error
However, the jurist commented that “the error is harmless because it merely subjected the prosecution’s peremptory challenges to scrutiny the court was not required to undertake.”
Although Hernandez argued on appeal that two of the four dismissed panelists were “improperly excused because they are Hispanic,” Baltodano found that the objection was forfeited, saying:
“The RJA, like section 231.7, serves the important purpose of eliminating ‘racism and unfairness in[] proceedings’ stemming from intentional or implicit bias….But a claim pursuant to the RJA…is subject to the general appellate rules of preservation and forfeiture of claims that could have been but were not made in the trial court.”
He added that “we decline the invitation to review this forfeited issue based on a cold, undeveloped record” and declared that “[t]he judgment is affirmed.”
The case is People v. Hernandez, 2025 S.O.S. 2859.
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