People v. Fuentes

MOSK, J.

Concurring. I concur in the judgment. In my view, the majority soundly conclude that the judgment of death must be reversed.

I write separately to clarify what I believe to be the fundamental basis of our decision.

In People v. Wheeler (1978) 22 Cal.3d 258, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748], we held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership or bias violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution. Subsequently, in Batson v. Kentucky (1986) 476 U.S. 79, 84-89 [90 L.Ed.2d 69, 79-83, 106 S.Ct. 1712], and its progeny, the United States Supreme Court held that such a practice also violates the defendant’s right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution.

Blacks, of course, are a cognizable group for purposes of both Wheeler (22 Cal.3d at p. 280, fn. 26) and Batson (476 U.S. at pp. 84-89 [90 L.Ed.2d at pp. 79-83]).

Under Wheeler, there is a presumption that a prosecutor uses peremptory challenges in a constitutional manner. (22 Cal.3d at p. 278.) The defendant bears the burden to show, prima facie, the presence of invidious discrimination. (Id. at p. 280.) If he succeeds, the burden shifts to the prosecutor to show its absence. (Id. at p. 281.) If the prosecutor fails, the defendant’s prima facie showing becomes conclusive. (See id. at p. 282.) In such a situation, the presumption of constitutionality is rebutted. (Ibid.) Substantially the same principles apply under Batson. (See 476 U.S. at pp. 89-98 [90 L.Ed.2d at pp. 82-89].)

In this case, we are required to conclude that the prosecutor peremptorily challenged Black prospective jurors on the basis of group membership or bias in violation of the United States and California Constitutions. Defendant carried his burden. The prosecutor did not.

In reversing the judgment, I join the majority in finding fault with the procedural deficiencies of the trial court. Indeed, on this record I cannot do otherwise.

Nevertheless, I believe that we must place the ultimate blame on its real source—the prosecutor. It was he who unconstitutionally struck Black prospective jurors. The record compels this conclusion and permits none other. This was no “technical” or inadvertent violation. This prosecutor knew that such conduct was altogether improper. The trial court told him as much. And so did we. Only a few months earlier, in People v. Turner (1986) 42 Cal.3d 711 [230 Cal.Rptr. 656, 726 P.2d 102], this court attempted to teach this same prosecutor that invidious discrimination was unacceptable when we reversed a judgment of death because of similar improper conduct on his part. He failed—or refused—to learn his lesson. The result is another reversal—and another costly burden on the administration of justice.¹

For the foregoing reasons, I agree with the majority that the judgment of death must be reversed.

1 I note in passing that I share the majority’s doubt about the propriety and value of a questionnaire for prospective jurors as extensive as that used in this case. Particularly unreasonable and offensive are interrogatories probing the subject’s religious practices and beliefs. Henceforth, such questions should not appear.