Friday, July 31, 2026
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California Supreme Court:
Confirmed Inattentiveness Insufficient to Support Peremptory
Opinion Says Statutory Scheme Prohibiting Racially-Motivated Dismissals Demands Explanation as to How Behavior ‘Matters to Case to Be Tried’ Even if Judge Confirms Observations
By Kimber Cooley, associate editor
The California Supreme Court held yesterday, in the first opinion to address the statutory scheme governing peremptory challenges as of 2021, that the law requires a party, in asserting certain enumerated behaviors on the part of a potential juror as the reason for excluding the person, to explain why the conduct matters in the case to be tried in order to defeat a presumption of bias. even if the highlighted actions are confirmed by the judge.
Justice Leondra R. Kruger, writing for a unanimous court, noted that such an explanation is required by the plain language of the statute and declared that Div. Six of this district’s Court of Appeal erred in finding that inattentiveness on the part of a prospective panelist, one of the “presumptively invalid” behaviors listed in the statute, is so obvious a problem for jury service as to need no further explanation.
However, she rejected the view that an attorney’s failure to offer any further explanation will lead to automatic invalidation of the peremptory challenge, saying:
“[T]he ultimate inquiry for the court is whether, evaluating all of the reasons in light of the totality of the circumstances, there is a substantial likelihood that an objective observer would view race or other protected status as a factor.”
Statutory Scheme
At issue is Code of Civil Procedure §231.7, which provides that “[a] party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race” or other protected categories.
The law was adopted in 2020 to address legislative concerns that the judicially-created Batson/Wheeler framework, named for the 1986 U.S. Supreme Court decision in Batson v. Kentucky and the 1978 California Supreme Court case of People v. Wheeler, was insufficient to address unconscious bias.
Under the new scheme, the striking party must give reasons for exercising the peremptory challenge any time an objection is raised with no requirement that a prima facie case of discriminatory motivation and the court is directed to determine whether “there is a substantial likelihood that an objectively reasonable person” who is “aware” of “unconscious bias” would view race “as a factor” in the decision to dismiss the potential juror.
Subdivision (g) provides that inattentiveness and certain other behaviors like failure to make eye contact are “presumptively invalid” unless the trial judge “is able to confirm that the asserted behavior occurred” and specifies that the lawyer exercising the challenge “shall explain why the asserted demeanor….matters to the case.”
Attempted-Murder Charges
The question arose after prosecutors charged Joel SanMiguel with premeditated attempted murder and assault with a deadly weapon relating to a January 2022 attack at a Thousand Oaks homeless encampment on Rosario Soto, in which the victim was left unconscious after he was struck in the head with a metal bar.
During jury selection at the ensuing 2023 trial, Ventura County Deputy District Attorney Brandon Yeaton exercised a peremptory challenge to a potential panelist identified as “S.M.”
After SanMiguel’s attorney objected under §231.7, citing that both his client and the prospective juror are Latino, Yeaton noted that “the victim…is also Hispanic” and said that other potential panelists were “more attentive” and “[gave] more eye contact” than S.M., who he also described as having “walked back in” to the court after “the rest of the jury had…been excused.”
Then-Ventura Superior Court Judge Ryan Wright (now deceased) said he could “confirm exactly what the prosecutor did say,” noting that he observed “that [S.M.] has a very flat affect, and he is looking down most of the time” and had “entered the courtroom at a time when nobody else did.” He denied the motion, S.M. was empaneled, and the jury found the defendant guilty.
After Wright sentenced SanMiguel to seven years to life in prison, a divided panel of Div. Six affirmed the judgment in October 2024. Then-Presiding Justice Arthur Gilbert penned the majority opinion, saying that “one may wonder why behaviors like inattentiveness would require further explanation” and adding:
“No matter what a person’s background, race, or economic standing, if the juror does not pay attention, the juror does not belong on any jury.
“We appreciate the Legislature’s concern relating to the problem of bias, whether explicit or implicit. Nevertheless, no capable attorney would fail to challenge such a juror unless the attorney had what is known in the trade as a dead-bang loser.”
Two Clarifications
Saying that “We now clarify two general principles about behavior-based reasons under section 231.7, subdivision (g),” Kruger commented:
“First, to overcome the presumption that a behavior-based reason is invalid, the striking party must offer an explanation that is sufficient to allow the court to evaluate the reason as part of its overarching determination of whether an objective observer would view race or other protected status as a factor in the exercise of the peremptory challenge.”
She continued:
“Second, whether a behavior-based reason is found to be valid or invalid is not dispositive of the ultimate inquiry into the presence of unlawful discrimination. If the reason is invalid, it may not be relied on to justify the strike. While reliance on an invalid reason is generally a significant consideration—and, depending on the circumstances, may prove dispositive—a court still must consider any other reasons proffered and other relevant circumstances to determine whether the strike was unlawful under section 231.7. Conversely, finding that the statutory presumption of invalidity has been overcome is not necessarily dispositive of the lawfulness of the strike.”
Functional Requirement
As to the first point of clarification, the jurist reasoned:
“The explanation requirement is not formalistic, but functional. What the statute requires is a striking party’s explanation of the relevance of an observed behavior that is sufficient to permit a court to evaluate the reason as part of the totality-of-the-circumstances inquiry. That is, the explanation must provide sufficient insight into the striking party’s thought process to reveal the case-related inferences that they are drawing from the observed behaviors, and thus to permit the court to evaluate whether those inferences indicate that bias played a role in the challenge.”
She acknowledged that some behavior, like continuously sleeping during instructions, may be so “obviously inconsistent with a prospective juror’s duty” as to allow the court to conduct the required analysis under §231.7 but declared that “the same is not true of many reasons that might relate to ‘inattentiveness’ in some broad sense.”
Turning to the second clarification, she wrote:
“[Sec. 231.7(g)] contains no indication that behavior-based reasons like inattentiveness or confused answers are presumed invalid because they are inherently associated with group stereotypes or bias, and we see no basis to reach that conclusion. In the absence of any indication to the contrary, we presume the Legislature’s concern is the distinct concern that judicial decisions have long recognized: that the nature of behavior-based reasons, particularly with regard to certain types of behavior, makes them readily available vehicles for concealing or obfuscating bias.”
Not Necessarily Determinative
Based on that understanding, Kruger opined that “failure to rebut the presumption is not necessarily determinative of whether an objective observer would likely view discrimination as a factor in the peremptory challenge” and wrote:
“[W]hether the reason is considered invalid or not[,] the court must…proceed to ask the ultimate question under section 231.7(d)(1): Whether, based on an evaluation of all the reasons given to justify the peremptory challenge in light of the totality of the circumstances, there is a substantial likelihood that an objectively reasonable person would view race or other protected status as a factor in the strike.”
The justice noted:
“To the extent the Court of Appeal concluded that the explanation requirement is dispensable, we conclude it erred. But neither the court nor the parties have yet had the opportunity to consider the issue in light of this court’s guidance about what the prosecutor was required to explain….We thus allow the parties and the court to address that issue in the first instance.”
She added:
“We caution, however, that the answer to that question is not dispositive of the appeal. For reasons already explained, a finding that the presumption of invalidity was not overcome means the reason may not be relied on to justify the strike, but it does not, as SanMiguel has argued, definitively establish that the strike was invalid.”
The case is People v. SanMiguel, 2026 S.O.S. 2241.
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