Tuesday, April 14, 2026
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Peremptory Challenge Leads to Reversal of Rape Conviction
C.A.’s Majority Says Judge Failed to Abide by Code of Civil Procedure §231.7 in Not Questioning Whether Booting Nurse Off Panel Reflected Bias; Dissenter Says Statutory Presumption of Prejudice Violates State Constitution
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal yesterday reversed the conviction of a man for raping and sodomizing a 16-year-old girl, holding that the judge failed to determine whether a peremptory challenge by the prosecution of a prospective juror based on being a nurse violated a statute—with a dissenting jurist saying that the majority was giving effect to a provision that contravenes a state constitutional mandate.
Justice Thomas A. Delaney wrote for the majority in declaring that Orange Superior Court Judge Michael A. Leversen failed to comply with Code of Civil Procedure §231.7 which limits the permissible bases for peremptory challenges. It declares in subd. (a):
“A party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.”
Invalidity Presumed
Under subd. (e)(10), unless an exception is shown, a challenge “is presumed to be invalid” where “[e]mployment in a field that is disproportionately occupied by members listed in subdivision (a) or that serves a population disproportionately comprised of members of a group or groups listed in subdivision (a).”
Defendant Jose Gerardo Espiritu argued on appeal that the challenge to the nurse was invalid because she was a member of a group primarily comprised of women.
Subs. (j) provides:
“Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.”
Forfeiture Not Found
Although Espiritu’s lawyer did not object to the challenge at trial, Delaney wrote:
“There is no indication in the record the trial court even considered whether the prosecutor’s stated reason was potentially subject to a presumption of invalidity. Finding forfeiture under such circumstances would run counter to the comprehensive scheme adopted by the Legislature and the purpose underlying it.”
He went on to say:
“That procedural failure requires reversal of the judgment and remand for a new trial.”
He remarked:
“We recognize jury selection is a fluid and dynamic process in which all involved, including the trial court, receive a plethora of informational input from various sources and counsel is often faced with making quick strategic decisions. But the Legislature has made clear its intent to eliminate the exclusion of jurors based on purposeful discrimination and unconscious bias, and it has developed a comprehensive analytical framework for achieving that goal. The trial court and all counsel must take the steps necessary to ensure jury selection runs efficiently and smoothly without compromising the integrity of the process and the legislative aim of section 231.7.”
Joining in Delaney’s opinion was Justice Maurice Sanchez.
Moore’s Dissent
Acting Presiding Justice Eileen C. Moore, in a dissent, asserted the invalidity of §231.7(j). She said:
“I agree with the majority that the trial court committed an error by erroneously denying Espiritu’s objection to the prosecutor’s use of a peremptory challenge during jury selection….But under our state Constitution, that is not supposed to end our analysis, we are also supposed to determine whether the error was prejudicial.”
Moore quoted Art. VI, §13 od the state Constitution as saying, with emphasis added by her:
“No judgment shall be set aside...unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
The jurist continued:
“Here, if we analyzed for prejudice and determined that the trial court’s error was not prejudicial, then the victim would not have to go through the shame and humiliation of testifying before another group of total strangers at a new trial.”
She lamented that “under section 231.7, the Legislature does not allow us to fulfill our constitutionally required obligation” in light of the proclamation in subd.(j) that if error is found under §231.7, it “shall be deemed prejudicial” and “the judgment shall be reversed.”
The case is People v. Espiritu, G063841.
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