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People v. McGee11/15/2004
ourt erred by conducting its inquiry in the reverse order on the third Wheeler motion. It first heard the prosecutor's reasons for the peremptory challenges, then determined that there was no prima facie case. "[U]nless the trial court ... had made at least an implied finding of group discrimination, it would have had no basis for asking the prosecutor to 'explain' the reasons for his peremptory challenges. We may therefore fairly deem that the inquiry implied such a finding, and shifted the burden of justification to the prosecutor. Indeed, after Wheeler it is disingenuous to treat such inquiries as anything else. For example, in People v. Trevino [ (1985) ] 39 Cal.3d 667, 668, we similarly observed that 'The trial court called upon the prosecutor to explain his exclusion of the Spanish surnamed jurors,' and we proceeded to evaluate the sufficiency of the ensuing explanations." (People v. Turner, supra, 42 Cal.3d 711, 719; see also People v. Muhammad, supra, 108 Cal.App.4th 313, 317 [trial court's inquiry, on complaint by defense counsel, implies finding of group discrimination]; McGee I, supra, 104 Cal.App.4th at p. 568 [upon a timely challenge under Wheeler the trial court is obligated to make an express finding whether the moving party has demonstrated a prima facie case].) Accordingly, we deem the trial court impliedly found a prima facie case on the third Wheeler motion but, upon hearing the prosecutor's reasons, ultimately found the peremptory challenges to be constitutionally valid. Given these circumstances, there is no reasonable possibility that the court's manner of inquiry would have led to a different outcome on the third Wheeler motion. Any error was therefore harmless.
(1) Juror No. 4191
Juror number 4191 was a retired teacher with prior jury service. A divorced father, he had a daughter employed as a computer expert and a son employed as a counselor, who was working on his master's degree. Juror number 4191 had a negative experience with the police, about which he had written a letter of complaint. In the voir dire, juror number 4191 explained that while he did not "have a problem with police officers," he knew that "there are some who stretch the truth to make their case." In response to the prosecutor's questioning, juror number 4191 acknowledged that he had been "arrested for being Black in public." He answered that his feelings about police officers would be triggered if an offense involved "alcohol, drugs, anything like that that would involve any incidents where you get detained and stopped and put in jail for having a dirty license plate, for having a broken tail light, something else." Juror number 4191 qualified that there are just a few bad officers. His brother-in-law is a police officer.
At the rehearing, the prosecutor argued that "sheer numbers" of African-American prospective jurors challenged did not prove a "prima facie case" of discrimination existed. The prosecutor argued juror number 4191 "had been pulled over because 'he was driving while Black,' " gave "several inconsistent statements about his beliefs on the law," "appeared to the People to have his own agenda, to have some very strong opinions coming into this process," and believed "he would not be a fair juror."
*11 McGee argued that, because African-Americans constituted eight out of the nine peremptory challenges by the third Wheeler motion, there was "a reasonable inference of a discriminatory pattern of conduct" in the "sheer numbers." Further, because the court had initially found a prima facie case on the second Wheeler motion, that same pattern of conduct would hold true on the subsequent peremptory challenges.
The court determined that "[s]o far, if I didn't say it earlier, all of the questioned jurors so far I do believe the
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