Appellate Sniping Over Allegedly Discriminatory Peremptory Challenge of Prospective Juror

Timothy Kowal, Esq.
December 4, 2020

Recently on the California Appellate Law Podcast, we covered AB 3070, which imposes new procedures when making a peremptory challenge of a juror, including providing a valid reason for the challenge (which means, the challenge is no longer peremptory). Although AB 3070 does not go into effect until 2022, judicial temperaments are already strained if People v. Williams (D2d6 Aug. 27, 2020) B298358, is any indication.

That case involved a black defendant who, angry that his neighbors' children were playing in front of his house, fired a gun into the neighbors' house, leaving bullet holes in the door, couch, pillow, and computer. Being his third strike, defendant was sentenced to 59 years to life.

On appeal, defendant argued the prosecution's challenge to a black juror (the only black juror remaining after another was excused by stipulation of the parties) was based on racial discrimination. When defendant raised the Batson/Wheeler motion at trial, the prosecution explained the challenge was based on the juror's occupation as a behavioral therapist.

Presiding Justice Gilbert, writing for the majority for the Second District, Division Six, concluded the record supported the challenge was not based on race. The majority also found it unconvincing that the prosecution did not challenge an occupational therapist and a psychology student, both non-black.

But Justice Tangeman, writing in dissent, was troubled by the fact that the challenge removed "the only remaining" black juror, and that the occupational therapist and psychology student were not challenged. The dissent would require the prosecutor to give further "reasons for excluding" the black juror, and "reasons for not excusing otherwise-similar jurors."

To which suggestion PJ Gilbert shot back: “To what end? To invent a reason acceptable to the dissent?”

The Supreme Court denied review.

To leave you with a much less consequential gripe: Did you know the 2/6 still uses two spaces after a period? How quaint.

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