Unzueta v. Akopyan

Filed 11/7/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ZULMA UNZUETA, B313215
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC495137)
v.
ASMIK AKOPYAN,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Anthony J. Mohr, Judge. Reversed and
remanded with instructions.
McMurray Henriks and Yana G. Henriks for Plaintiff and
Appellant.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson;
Packer, O’Leary & Corson, Robert B. Packer and Paul M. Corson
for Defendant and Respondent.
__________________________
Zulma Unzueta appeals from a judgment entered in favor
of defendant Asmik Akopyan, M.D., on Unzueta’s action for
medical malpractice after the trial court denied her motion under
Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler) following our remand in
Unzueta v. Akopyan (2019) 42 Cal.App.5th 199 (Unzueta I). In
this appeal, we consider whether under California law an
attorney may properly strike a prospective juror based on the
disability of the juror’s family member. Historically
Batson/Wheeler motions have been analyzed, as the trial court
did here, in terms of whether the justification for excusing a
prospective juror is race-neutral. However, in 2015 the
Legislature expanded the scope of cognizable groups protected
under Batson/Wheeler by its enactment of Assembly Bill No. 87
(2015-2016 Reg. Sess.) § 1 (Assembly Bill 87), effective January 1,
2017. Assembly Bill 87 amended Code of Civil Procedure section
231.51 to specify by reference to Government Code section 11135
that peremptory challenges cannot be used to excuse prospective
jurors on the basis of their sex, race, color, religion, ancestry,
national origin, ethnic group identification, age, mental and
physical disability, medical condition, genetic information,
marital status, or sexual orientation. Nor can a peremptory
challenge be based on the perception the juror possesses one of
these characteristics or because of the juror’s association with
someone perceived to have one of these characteristics.
In Unzueta I, we concluded the trial court erred in denying
Unzueta’s Batson/Wheeler motion (initially made sua sponte by
the court) after Dr. Akopyan’s attorney exercised peremptory
1 Further undesignated references are to the Code of Civil
Procedure.
2
challenges to six Hispanic2 prospective jurors out of his seven
total challenges. (Unzueta I, at p. 202.) We agreed with Unzueta
that the court erred in not requiring defense counsel to offer
nondiscriminatory reasons for his first four challenges that
formed the basis of the trial court’s prima facie finding of racial
bias. (Id. at p. 202.) We conditionally reversed for the limited
purpose of the court conducting the second and third steps of the
Batson/Wheeler inquiry as to all six challenged Hispanic jurors
and directed the court on remand to “require defense counsel to
state his reasons for challenging the first four prospective jurors,
and . . . [to] decide in light of the record as to all six jurors
whether Unzueta has proved purposeful racial discrimination.”
(Unzueta I, at pp. 202-203.) We directed the court further that if
2 We refer to the prospective jurors as Hispanic, which is the
term used by the trial court and counsel. “Hispanic” is defined as
“of, relating to, or being a person of Latin American descent and
especially of Cuban, Mexican, or Puerto Rican origin living in the
U.S.,” or “of or relating to the people, speech, or culture of Spain.”
(Merriam-Webster’s Online Dict. (2022) [as of November 7, 2022],
archived at ; see Cambridge
English Dict. Online

[as of November 7, 2022], archived at [defining “Hispanic” as “from or connected with Spanish-
speaking countries, especially those in Latin America, or having
parents or grandparents from these countries”].) The term
“Latinx” (a gender-neutral form of Latino and Latina), which is
defined as “of, relating to, or marked by Latin American
heritage,” would alternatively describe the jurors. (Merriam-
Webster’s Online Dict. (2020) [as of November 7, 2022],
archived at .)
3
it found Dr. Akopyan’s challenges were permissible, it should
reinstate the judgment. (Id. at p. 203.)
On remand, the trial court elicited justifications for the six
prospective jurors at issue, which Dr. Akopyan’s attorney
provided. As to two of the jurors, Dr. Akopyan’s attorney
asserted they were excused because they had a family member
who was disabled, and the attorney feared the family member’s
disability would cause the juror to be biased in favor of Unzueta,
who alleged she became disabled as a result of Dr. Akopyan’s
professional negligence. The court found the justifications were
“race-neutral,” and after analyzing all the challenges, it denied
the Batson/Wheeler motion and reinstated the judgment.
Unzueta argues in this appeal that Dr. Akopyan’s striking
of the two prospective jurors based on the disabilities of their
family members was itself based on protected characteristics.
Unzueta is correct. Dr. Akopyan’s justification for excusal of the
two jurors was race-neutral, but it was still impermissible under
California law. We again reverse and order a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Case
Unzueta alleged in her complaint that Dr. Akopyan, the
anesthesiologist during the birth of her child, negligently
administered an epidural injection that resulted in the paralysis
of Unzueta’s right leg below the knee. After a trial, the jury
returned a special verdict for Dr. Akopyan, finding she was
negligent in the care and treatment of Unzueta, but
Dr. Akopyan’s negligence was not “a substantial factor in causing
harm” to Unzueta.
4
B. Jury Selection and the Batson/Wheeler Motion
We described jury selection and the Batson/Wheeler motion
in Unzueta I, supra, 42 Cal.App.5th at pages 208 through 210.
On the second day of jury selection (February 7, 2017),
Dr. Akopyan’s attorney, Robert Packer, exercised peremptory
challenges to excuse four Hispanic prospective jurors: R. Medina,
J. Quintero, G. Henriquez, and R. Villarreal.
Medina was a civil engineering student, unmarried,
without children, with no prior jury experience.
Quintero was a sanitation worker for the City of Los
Angeles, was married with four adult children, and was raising
one grandchild. He had served on four criminal and one civil
juries, all of which reached verdicts. One of his children did not
work because of a disability.
Henriquez was a child specialist, married, with no prior
jury experience. Her husband was disabled and did not work.
Henriquez had a pending workers’ compensation case for an
injury sustained in a workplace fall. She stated she would be
able to distinguish between the standard of negligence at issue in
Unzueta’s case and the no-fault standard for workers’
compensation.
Villareal was a children’s social worker who supervised
investigative teams responding to reports of child abuse. She had
two adult children and no prior jury experience. As a supervisor,
Villareal was responsible for deciding based on social workers’
investigations whether to file a petition in juvenile court in cases
of suspected abuse.
Unzueta exercised all six of her peremptory challenges;
Dr. Akopyan accepted the panel without exercising her final two
peremptory challenges. That day (February 7) the jury panel was
sworn. On February 8 voir dire continued for the selection of the
5
alternate jurors. Packer exercised peremptory challenges on
behalf of Dr. Akopyan to excuse three prospective jurors, two of
whom were Hispanic: D. Zaldana and A. Marquez.
Zaldana was a broadcast engineer, married, with three
adult children. He had experience on one civil jury, which
reached a verdict. A relative of Zaldana underwent heart surgery
and “had items left in him” as a result of the surgery. When
asked whether he could be fair to the defense, Zaldana promised
to “be as objective as I can be.” Zaldana’s father had developed
symptoms of Parkinson’s disease about two months after having
an angiogram performed. Zaldana questioned whether the
symptoms were brought on by the angiogram test.
Marquez was single and a sales associate at a hardware
store, with no prior jury experience. He had previously broken an
ankle, which disrupted his daily living for three or four months.
After the injury, Marquez “sat at home.”
After Packer exercised peremptory challenges to excuse
D. Winfrey,3 Zaldana, and Marquez, the trial court sua sponte
made a Batson/Wheeler motion based on Packer’s exercise of four
peremptory challenges on February 7, all of which were directed
to Hispanic jurors, and three peremptory challenges on February
8, two of which were directed to Hispanic jurors. The court
directed Packer to justify his February 8 challenges to Zaldana
and Marquez. Packer provided a justification for his excusal of
Marquez, but not Zaldana. He explained Marquez was single,
had no jury experience, and appeared “disinterested in the case.”
Packer excused him in part because he felt Marquez “was
completely unknown to me compared to the other jurors.” Packer
3 Unzueta does not contend Packer’s peremptory challenge to
Winfrey was made for an impermissible reason.
6
added that there were three Hispanic jurors on the panel as
constituted.
Unzueta’s attorney, Yana Henriks, then requested the
court require Packer to provide justifications for his excusal of
the four Hispanic jurors on February 7. The court denied the
request, explaining “that water is under the bridge.” The court
denied the Batson/Wheeler motion, finding Packer had justified
his use of peremptory challenges as to the alternate jurors. In
Unzueta’s subsequent motion for a new trial she argued the court
erred in not requiring Packer to explain his justifications for
removing the four Hispanic prospective jurors on February 7 and
Zaldana on February 8. Packer explained he challenged Zaldana
because it appeared Zaldana believed the cause of his father
developing Parkinson’s disease was his surgery. Packer did not
provide justifications for his excusal of the first four jurors. The
court denied Unzueta’s new trial motion.
C. Unzueta I
On appeal, Unzueta argued Dr. Akopyan’s exercise of six of
her seven peremptory challenges to excuse Hispanic prospective
jurors was based on race and deprived Unzueta of her federal
constitutional right to equal protection (Batson, supra,476 U.S. at p. 88) and state constitutional right to a trial by a
jury drawn from a representative cross-section of the community
(Wheeler, supra, 22 Cal.3d at pp. 276-277). Unzueta asserted the
trial court erred in failing to require Packer to provide
justifications for his excusal of the four Hispanic jurors on the
second day of jury selection. Dr. Akopyan responded that the
first four jurors did not fall within the scope of the court’s sua
sponte motion, so no explanation was necessary. We concluded
that because the court based its sua sponte Batson/Wheeler
7
motion on the excusal of all six prospective Hispanic jurors, “the
court was required to elicit from Packer justifications for each of
the six challenges forming the basis for the prima facie showing”
of group bias. (Unzueta I, supra, 42 Cal.App.5th at p. 217.)
We conditionally reversed the judgment and remanded for
the trial court to perform the second and third steps of the
Batson/Wheeler inquiry. We explained, “In this case, although
jury selection took place almost three years ago, . . . there is a
transcript of the jury selection proceeding that will assist the
trial court and parties in conducting a further Batson/Wheeler
analysis. In addition, the parties’ attorneys may still have their
notes from the trial, which Packer referenced during his
discussion of the reasons he challenged Marquez. On remand the
trial court should require defense counsel to provide Packer’s
reasons for challenging the first four prospective jurors (Medina,
Quintero, Henriquez, and Villarreal), evaluate the explanations,
‘and decide whether [Unzueta] has proved purposeful racial
discrimination.’” (Unzueta I, supra, 42 Cal.App.5th at p. 218.)
We directed the court to grant a new trial if it was unable to
make a reliable determination based on the passage of time or if
it determined defense counsel exercised his peremptory
challenges based on racial bias. If the six peremptory challenges
were made for permissible reasons, the court should reinstate the
judgment.4 (Ibid.)
4 On remand, Unzueta filed a peremptory challenge to Judge
Anthony J. Mohr under section 170.6. Dr. Akopyan filed a writ
petition in which she argued section 170.6, subdivision (a)(2),
which authorizes a peremptory challenge following a reversal on
appeal where the trial court is assigned to conduct a new trial,
does not authorize a challenge following a conditional reversal
8
D. The Batson/Wheeler Hearing on Remand
On January 8, 2021 the superior court set a hearing before
the trial court (Judge Mohr) on Unzueta’s Batson/Wheeler
motion for January 27, 2021, which was later continued to
February 5. At the outset of the February 5 hearing, Henriks
requested the court address whether it had a sufficient
recollection of the 2017 jury selection, noting that in Unzueta I
we stated that if the trial court was unable to perform a
Batson/Wheeler evaluation because of the passage of time, the
court should grant the motion. The court responded, “No
problem. And believe it or not, I did take notes, so it’s not like I
have no memory of that. I’m looking at my notes as we speak, by
the way; so the fact that a few years [passed] doesn’t really make
it impossible to recollect.” The court reviewed with counsel the
challenges to each of the six jurors, hearing oral argument and
having Packer read from the transcript of voir dire the relevant
questioning of the jurors.
Packer stated as to Medina that she was a young student
with no jury experience. He noted Medina had requested deferral
of her jury service for hardship reasons because she had four
midterm examinations in the following three weeks. Packer was
concerned Medina was “disinterested” in the case and focused on
her midterm examinations, so it would be difficult to concentrate
where the remand is for the purpose of requiring the trial court to
reconsider a pretrial Batson/Wheeler motion. We agreed and
granted the petition, directing the superior court to vacate its
order granting Unzueta’s motion to disqualify and to enter a new
order deferring a ruling on the motion until after resolution of the
Batson/Wheeler inquiry. (Akopyan v. Superior Court (2020)
53 Cal.App.5th 1094, 1096, 1105.)
9
on the case. After hearing argument, the court found Packer
provided a race-neutral reason for striking Medina.
Packer stated as to Quintero that one of her four children
was disabled. Packer explained Unzueta was claiming a
permanent disability, and Packer “felt that this particular juror
may be too sympathetic to this particular plaintiff to make a
reasonable decision on the evidence.” Henriks argued the fact
the juror had a disabled child was not a sufficient reason to strike
her.
After hearing argument, the court asked, “Is this truly a
protected class?” Packer responded that the only issue raised in
the Batson/Wheeler motion was whether or not there was racial
discrimination, not discrimination based on a disability. He
added, “This can’t be raised for the first time now.” The court
agreed, noting it had “never even thought about it till this
moment, but it’s a question.” After further argument, the court
concluded as to Quintero, “Based on what we have here, I think
the fact that this juror had a child who’s disabled and the
plaintiff is disabled, does provide a race-neutral reason for
exercising a peremptory strike. So I don’t think the Quintero
strike violates Wheeler Batson.”
With respect to Henriquez, Packer explained he challenged
the juror principally because her husband was disabled and
unable to work, and he had an outstanding workers’
compensation matter. Packer argued these two aspects
suggested Henriquez might be sympathetic to Unzueta’s claim
based on her claimed disability. After hearing argument, the
court found “the strike against Henriquez was not racially
motivated. There are race-neutral reasons, especially because of
[the] disability of the husband.”
10
Later in the hearing Henriks argued as to the family
members of prospective jurors that “Government Code [section]
11135 specifically prohibits discrimination based on physical
disability.” She added that having a disability is “a protected
class.”
As to Villareal, Packer explained she was a supervisor with
the County Department of Children and Family Services, and as
part of her position would respond to child abuse notifications.
Packer expressed a concern that would likely make her
sympathetic to Unzueta, who claimed an injury due to medical
malpractice. After hearing further argument, the court found
there was not a “race-based reason for exercising this strike.”
The court added, “It’s not the strongest of the group, but it’s
there.”
The trial court then turned to the alternate jurors. With
respect to Zaldana, Packer stated, as he had in the trial court,
that the juror believed his father had developed Parkinson’s
disease as a result of an angiogram he had undergone, resulting
in a shaky leg. In addition, a relative had an instrument left in
him following a surgery. The juror was uncertain whether he
could be fair. After hearing further argument, the court found
the challenge to Zaldana was proper and not based on race. The
trial court again found no Batson/Wheeler violation as to
Marquez, accepting Packer’s explanation Marquez “seemed to be
disinterested and would rather not be on jury duty.”5
5 Throughout the hearing Henriks raised that she wanted to
perform a comparative juror analysis, but she needed additional
time to review the transcripts. The trial court responded that
Henriks could have obtained the voir dire transcript and
performed a comparative juror analysis before the hearing. The
11
Henriks requested the court consider the passage of
Assembly Bill No. 3070 (2019-2020 Reg. Sess.), which limits the
use of peremptory challenges under new section 231.7. However,
the trial court declined to consider the new law, explaining the
legislation would not take effect in civil trials until January 1,
2026.6
court denied a continuance, explaining, “Today is the hearing. I
want to get through this. We don’t have the time to put this
thing over and have lengthy briefing which never would have
occurred during the actual voir dire process.”
6 The trial court was correct. Section 231.7 took effect on
January 1, 2021, but it provides “[t]his section shall not apply to
civil cases.” (Id., subd. (k).) Further, section 231.7, subdivision
(n), provides, “This section shall remain in effect only until
January 1, 2026, and as of that date is repealed.” Effective
January 1, 2026 a new version of section 231.7 will take effect,
applicable to all jury trials. (Id., subd. (i) [“This section applies in
all jury trials . . . .”].) Subdivision (a) of the law effective
January 1, 2026 (and the current version of section 231.7,
subdivision (a), as to criminal jury trials), provides, “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.” Future section 231.7 also provides
direction on how the court should evaluate the reasons provided
to justify peremptory challenges. (Id., subd. (d).) And
subdivision (e) of future section 231.7 lists reasons “presumed to
be invalid.” Future section 231.7 has a narrower scope of
protected classes than section 231.5, for example, not including a
juror’s mental or physical disability. However, as the Legislative
Counsel’s Digest for Assembly Bill No. 3070 clarified, “[e]xisting
law” (section 231.5) prohibits a party from using a peremptory
12
At the conclusion of the hearing, the trial court denied the
Batson/Wheeler motion, explaining, “I think counsel has justified
each of his peremptory strikes, some more strongly than others.
Marquez and Villareal, you know, are a little weak, but I’m not
prepared to say they’re race-based. [¶] . . . [¶] I find no violation
in this situation.” The court found further “that the race-neutral
explanations are credible, and I do accept them.”
The trial court explained in its minute order, “The court
concludes that counsel’s peremptory challenges to each of the
prospective jurors which were exercised during both days of jury
selection were not based on the fact that the prospective jurors
were Latinos or Latinas. Counsel articulated non-racial
justifications for each, and the court accepts them. As further
support for this conclusion, the court notes that the jury did
contain Latinos and counsel did not exercise all of his peremptory
challenges.”
On February 16, 2021 the trial court entered an order
denying the motion. On April 6, 2021 the court7 reinstated the
judgment previously entered on April 18, 2017. Unzueta timely
appealed.
challenge to remove a prospective juror based on specified
protected characteristics, including the mental or physical
disability of the juror. (Legis. Counsel’s Dig., Assem. Bill
No. 3070 (2019-2020 Reg. Sess.) Stats. 2020, Summary Dig.); see
Assem. Com. on Judiciary, Rep. on Assem. Bill No. 3070 (2019-
2020 Reg. Sess.) p. 6 [listing protected characteristics under
current law, including disability].) The legislative history of
Assembly Bill No. 3070 does not reflect an intent to limit the
scope of protected classes under section 231.5.
7 Judge Michael E. Whitaker signed the order.
13
DISCUSSION
Unzueta contends the justifications Packer gave for
striking prospective jurors Quintero and Henriquez—that they
had family members who were disabled—were prohibited bases
for excusing the jurors under California law. Unzueta is correct.8
“Peremptory challenges are a long-standing feature of civil
and criminal adjudication. But the exercise of even a single
peremptory challenge solely on the basis of race or ethnicity
offends the guarantee of equal protection of the laws under the
Fourteenth Amendment to the federal Constitution.
(Batson, supra, 476 U.S. 79; [citation].) Such conduct [on the
basis of race, ethnicity or other similar group bias] also violates a
defendant’s right to trial by a jury drawn from a representative
cross-section of the community under article I, section 16 of the
state Constitution. (Wheeler, supra, 22 Cal.3d 258, 276-277.)”
(People v. Gutierrez (2017) 2 Cal.5th 1150, 1157-1158 (Gutierrez);
accord, People v. Ramirez (2022) 13 Cal.5th 997, 1087-1088
[excluding prospective jurors on the basis of race “‘“violates both
the equal protection clause of the United States Constitution and
the right to trial by a jury drawn from a
representative cross section of the community under article I,
section 16 of the California Constitution”’”].)
8 Dr. Akopyan contends Unzueta forfeited her argument that
Packer’s justifications based on the disability of the prospective
jurors’ family members were impermissible. We decline to find
forfeiture. Although Henriks made this argument for the first
time at the hearing on remand, Packer did not raise the disability
of the prospective jurors’ family members as the basis for his
peremptory challenges until that hearing.
14
We employ a familiar three-step process in evaluating a
Batson/Wheeler motion. “First, the party objecting to the strike
must establish a prima facie case by showing facts sufficient to
support an inference of discriminatory purpose. [Citation.]
Second, if the objector succeeds in establishing a prima facie case,
the burden shifts to the proponent of the strike to offer a
permissible, nonbiased justification for the strike. [Citation.]
Finally, if the proponent does offer a nonbiased justification, the
trial court must decide whether that justification is genuine or
instead whether impermissible discrimination in fact motivated
the strike.” (People v. Reed (2018) 4 Cal.5th 989, 999, footnote
omitted; accord, People v. Baker (2021) 10 Cal.5th 1044, 1071.)
The prohibition against the exercise of peremptory challenges to
exclude prospective jurors on the basis of group bias applies to
civil as well as criminal cases. (Unzueta I, supra, 42 Cal.App.5th
at p. 212; Di Donato v. Santini (1991) 232 Cal.App.3d 721, 731;
Holley v. J & S Sweeping Co. (1983) 143 Cal.App.3d 588, 592.)
“‘Excluding even a single prospective juror for reasons
impermissible under Batson and Wheeler requires reversal.’”
(People v. Baker, supra, 10 Cal.5th at p. 1071; accord, Gutierrez,
supra, 2 Cal.5th at p. 1158 [“Exclusion of even one prospective
juror for reasons impermissible under Batson and Wheeler
constitutes structural error, requiring reversal.”].) Moreover, at
the second step of the Batson/Wheeler analysis, the party that
exercised the peremptory challenge cannot justify an allegedly
impermissible challenge (here, to six Hispanic jurors) with a
different impermissible justification (that two of the six had
disabled family members). As discussed, once the objector makes
a prima facie case of discrimination, the burden shifts to the
party who exercised the peremptory challenge to provide “a
permissible, nonbiased justification for the strike.” (People v.
15
Reed, supra, 4 Cal.5th at p. 999; see Gutierrez, at p. 1158 [“To
meet the second step’s requirement, the opponent of the motion
must provide ‘a “clear and reasonably specific” explanation of his
“legitimate reasons” for exercising the challenges.’”].)
Substituting one impermissible justification for another cannot
meet this burden.
Where, as here, a trial court finds a prima facie showing of
group bias but then denies the Batson/Wheeler motion based on
an evaluation of the strike proponent’s reasons for the challenges,
“the reviewing court skips to the third [step] to determine
whether the trial court properly credited the [proponent]’s
reasons for challenging the prospective jurors in question.”
(People v. Smith (2018) 4 Cal.5th 1134, 1147.) As to the third
step, “‘[w]hen the trial court makes a sincere and reasoned effort
to evaluate the [proffered] reasons, the reviewing court defers to
its conclusions on appeal, and examines only whether substantial
evidence supports them.’” (People v. Baker, supra, 10 Cal.5th at
p. 1077; accord, Smith, at p. 1147.) In this case, however, the
question on appeal is not whether Packer’s justifications were
genuine (we have no reason to believe they were not), but
whether the justifications Packer provided for his excusal of
Quintero and Henriquez were based on impermissible group bias
under federal or California law. We independently review this
question of law on the undisputed facts. (See Segal v. ASICS
America Corp. (2022) 12 Cal.5th 651, 658 [“when the issue is one
of statutory interpretation, it presents a question of law that we
review de novo”]; McHugh v. Protective Life Ins. Co. (2021)
12 Cal.5th 213, 226 [interpretation of statutory provisions is
reviewed de novo]; California Grocers Assn. v. City of Los Angeles
(2011) 52 Cal.4th 177, 208 [equal protection claim reviewed de
novo].)
16
The United States Supreme Court has extended the reach
of Batson/Wheeler motions to forbid the exercise of peremptory
challenges to those based on gender. (See J.E.B. v. Alabama ex
rel. T.B. (1994) 511 U.S. 127, 130 [the Equal Protection Clause of
the United States Constitution also “forbids peremptory
challenges on the basis of gender”].) And under the California
Constitution, use of a peremptory challenge “on account of bias
against an identifiable group distinguished on racial, religious,
ethnic, or similar grounds” is impermissible and the proper
subject of a Batson/Wheeler motion. (Gutierrez, supra, 2 Cal.5th
at p. 1158; see People v. Avila (2006) 38 Cal.4th 491, 549;
Wheeler, supra, 22 Cal.3d at p. 276 [“when a party presumes that
certain jurors are biased merely because they are members of an
identifiable group distinguished on racial, religious, ethnic, or
similar grounds we may call this ‘group bias and peremptorily
strikes all such persons for that reason alone, he not only upsets
the demographic balance of the venire but frustrates the primary
purpose of the representative cross-section requirement”].)
The question before us is whether a justification for a strike
on the basis of a disability (or the disability of a family member)
is a permissible nondiscriminatory reason to support excusal of a
prospective juror at the second step of the Batson/Wheeler
analysis. Under California law it is not.9 In 2000 the Legislature
9 The United States Supreme Court and federal courts have
not extended Batson/Wheeler to peremptory challenges based on
a prospective juror’s disability. (See U.S. v. Watson (D.C. Cir.
2007) 483 F.3d 828, 829 [Batson did not prohibit use of
peremptory challenges to strike two blind jurors because disabled
persons are not suspect class and prosecutor’s explanation for
striking jurors based on disability was rational]; United States v.
17
enacted Assembly Bill No. 2418 (1999-2000 Reg. Sess.), which
added former section 231.5 (Stats. 2000, ch. 43, § 3) governing
peremptory challenges. Former section 231.5 expanded the list of
cognizable groups subject to a Batson/Wheeler motion by stating,
“A party may not use a peremptory challenge to remove a
prospective juror on the basis of an assumption that the
prospective juror is biased merely because of his or her race,
color, religion, sex, national origin, sexual orientation, or similar
grounds.”
In 2015 the Legislature expanded the list of cognizable
groups by its enactment of Assembly Bill 87, effective January 1,
2017. Section 231.5 now provides, “A party shall not use a
peremptory challenge to remove a prospective juror on the basis
of an assumption that the prospective juror is biased merely
because of a characteristic listed or defined in Section 11135 of
the Government Code, or similar grounds.” Government Code
section 11135, subdivision (a), states in turn, “No person in the
State of California shall, on the basis of sex, race, color, religion,
ancestry, national origin, ethnic group identification, age, mental
disability, physical disability, medical condition, genetic
information, marital status, or sexual orientation, be unlawfully
denied full and equal access to the benefits of, or be unlawfully
Harris (7th Cir. 1999) 197 F.3d 870, 876 [“If the government had
struck [the juror] because of an irrational animosity toward or
fear of disabled people, this would not be a legitimate reason for
excluding her from the jury,” but the government’s use of a
peremptory challenge was rationally related to provision of a fair
trial and therefore did not violate the Equal Protection Clause].)
The California Supreme Court has not addressed the application
of Batson/Wheeler to jurors based on their disability (or the
disability of a family member).
18
subjected to discrimination under, any program or activity that is
conducted, operated, or administered by the state or by any state
agency, is funded directly by the state, or receives any financial
assistance from the state.” And Government Code section 11135,
subdivision (d), provides, “The protected bases used in this
section include a perception that a person has any of those
characteristics or that the person is associated with a person who
has, or is perceived to have, any of those characteristics.”
These sweeping protections apply here. (See People v.
Armstrong (2019) 6 Cal.5th 735, 765 [citing section 231.5, as well
as Batson and Wheeler, in concluding “[p]eremptory challenges
may not be used to exclude prospective jurors based on group
membership such as race or gender”]; People v. Duff (2014)
58 Cal.4th 527, 544-545 [citing to section 231.5 in explaining
limits on use of peremptory challenges].)
We construe section 231.5 and Government Code
section 11135 together to prohibit use of peremptory challenges
to excuse prospective jurors on the basis a person with whom the
juror is associated has a disability. That is precisely what Packer
did here in challenging Quintero because her child was disabled
and Henriquez because her husband was disabled.10
Dr. Akopyan counters that even if section 231.5 prohibited
Packer from excusing prospective jurors on the basis of their
disabilities, Quintero and Henriquez were not disabled, and thus,
10 We analyze Packer’s justification based on disability as
part of the second step of the Batson/Wheeler analysis. We note
the same analysis would have applied as part of the first step of
the analysis had the Batson/Wheeler challenge been based on
excusal of jurors based on their disabilities or the disabilities of
their family members.
19
they were not stricken “because of a characteristic” listed in
Government Code section 11135. We do not read section 231.5 so
narrowly.
When interpreting a statute, “our core task . . . is to
determine and give effect to the Legislature’s underlying purpose
in enacting the statutes at issue.” (McHugh, supra, 12 Cal.5th at
p. 227; accord, Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th
375, 381.) “We first consider the words of the statutes, as
statutory language is generally the most reliable indicator of
legislation’s intended purpose. [Citation.] We consider the
ordinary meaning of the relevant terms, related provisions, terms
used in other parts of the statute, and the structure of the
statutory scheme.” (McHugh, at p. 227; accord, Jarman, at p. 381
[“‘We do not examine that language in isolation, but in the
context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various
parts of the enactment.’”].)
“‘If the language is clear, courts must generally follow its
plain meaning unless a literal interpretation would result in
absurd consequences the Legislature did not intend.’” (Jarman v.
HCR ManorCare, Inc., supra, 10 Cal.5th at p. 381.) However,
“[i]f the relevant statutory language is ambiguous, we look to
appropriate extrinsic sources, including the legislative history,
for further insights.” (McHugh, supra, 12 Cal.5th at p. 227;
accord, Mendoza v. Fonseca McElroy Grinding Co., Inc. (2021)
11 Cal.5th 1118, 1125 [“‘If the statutory language permits more
than one reasonable interpretation, courts may consider other
aids, such as the statute’s purpose, legislative history, and public
policy.’”].)
Section 231.5 prohibits removal of a prospective juror on
the assumption the juror is biased “merely because of a
20
characteristic listed or defined in” Government Code
section 11135. It is true the characteristic of a person being
disabled is listed in Government Code section 11135,
subdivision (a). But Government Code section 11135,
subdivision (d), defines the “protected bases” in subdivision (a) to
include the person’s association “with a person who has, or is
perceived to have, any of those characteristics.” We construe
these three provisions together to mean a prospective juror is a
member of a cognizable class for purposes of a Batson/Wheeler
motion if the juror has or is perceived to have a listed
characteristic in Government Code section 11135, subdivision (a),
or if the juror is associated with a person who has or is perceived
to have a listed characteristic under subdivision (d) of that
section.
The legislative history of Assembly Bill 87 supports this
construction. The bill, as introduced on January 7, 2015,
amended section 231.5 to prohibit the use of a peremptory
challenge to remove a prospective juror based on the assumption
the juror is biased merely because of “a characteristic listed or
defined in subdivision (a) of Section 11135 of the Government
Code, or similar grounds.” On June 1, 2015 the bill was amended
to read as it does today, removing the reference to
“subdivision (a),” and instead referring to a characteristic
“defined in Section 11135 of the Government Code, or similar
grounds.” It is a reasonable construction of this change to
encompass characteristics listed and defined pursuant to
Government Code section 11135, subdivisions (a) and (d).
Further, as the Senate Rules Committee Office of Senate
Floor Analyses, third reading analysis of Assembly Bill 87
explained (following the June 1, 2015 amendment), “This bill now
seeks to expand this protection [under former section 231.5] by
21
prohibiting the use of a peremptory challenge to remove a
prospective juror on the basis of any characteristic for which a
state agency may not discriminate (i.e. race, national origin,
ethnic group identification, religion, age, sex, sexual orientation,
color, genetic information, or disability), or similar ground.” (Sen.
Rules Com., Off. Of Sen. Foor Analysis, 3d reading analysis of
Ass. Bill No. 87, (2015-2016 Reg. Sess.) p. 4.) Government Code
section 11135 prohibits discrimination by state agencies (or state-
funded entities) on the basis of a listed characteristic, as well as
on the basis of the person’s association with someone who has or
is perceived to have a listed characteristic. Thus, including
within the scope of cognizable groups for purposes of a
Batson/Wheeler motion prospective jurors whose family members
have one of the listed characteristics is consistent with the
legislative intent for Assembly Bill 87 to align cognizable groups
for purposes of impermissible peremptory challenges with
prohibited discrimination under Government Code
section 11135.11
There is no dispute that the justifications Packer provided
for excusing Quintero and Henriquez were their association with
disabled family members. Packer stated that because one of
Quintero’s children was disabled, Packer “felt that this particular
juror may be too sympathetic to this particular plaintiff to make
11 We recognize the legislative history does not directly
address peremptory challenges on the basis of a prospective
juror’s association with a person with a listed characteristic. But
the legislative history is clear that the intent of Assembly Bill 87
was to align the limitations on peremptory challenges with
California law prohibiting other forms of discrimination by the
state, a state agency, or entities funded by the state.
22
a reasonable decision on the evidence.” And with respect to
Henriquez, Packer explained the prospective juror’s husband was
disabled and had an outstanding workers’ compensation matter,
which would likely make her sympathetic to Unzueta.12 The trial
court concluded as to both prospective jurors that Packer had
provided “race-neutral” reasons for exercising his peremptory
strikes. The trial court was correct that the justifications were
race-neutral, but the challenges were still discriminatory because
they were based on the disabilities of the prospective jurors’
family members. Accordingly, we reverse the judgment and order
a new trial.
12 Dr. Akopyan argues on appeal that Packer challenged
Quintero and Henriquez based on the fact they were unable to
work as a result of the disability, not the disability itself.
However, at the Batson/Wheeler hearing on remand, Packer
focused specifically on the disability of the family members, not
their inability to work. And further, the trial court in ruling on
the motion likewise relied on the disability of the family
members, not their inability to work.
23
DISPOSITION
The judgment is reversed. On remand the trial court is to
vacate its order denying the Batson/Wheeler motion and to enter
a new order granting the motion and setting the matter for a new
trial. Unzueta is entitled to her costs on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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