Opinion
S284695
07-10-2024
PEOPLE v. NEWSON (ERIC VAN)
D082242 Fourth Appellate District, Div. 1.
Petition for review denied
The petition for review is denied.
Kruger, J., was absent and did not participate.
Concurring Statement
LIU, J.
Although I vote to deny review in this case, I note that the issue concerning the prosecutor's strike of Prospective Juror No. 22 (Juror No. 22), a Black woman, provides yet another illustration of why the Legislature believed it necessary to enact Assembly Bill No. 3070 (Reg. Sess. 2019- 2020) to overhaul the legal framework for eliminating racial discrimination in jury selection. (See Stats. 2020, ch. 318, § 2, adding Code Civ. Proc., § 231.7; People v. Nadey (2024) ___ Cal.5th ___, [2024 WL 3016945, p. *56] (Nadey) [prosecutor struck several Black women jurors for reasons presumptively invalid under Code Civ. Proc., § 231.7].)
The prosecutor here gave two reasons for striking Juror No. 22 in the second trial (after an initial mistrial) of defendant Eric Van Newson, a Black man charged with assaulting two White police officers with an illegally possessed firearm. The prosecutor first said, "[T]he primary reason I kicked her were both - her body language indicated to me that she didn't like me or defense counsel. I couldn't figure out exactly why." The prosecutor then said, "But more importantly, I tried this case once before and it hung 11 to 1. Just one juror, on the most important count, Officer Hysen. So I'm trying to screen potential jurors for anybody that might be willing to dig in their heels and not work with the other jurors. [¶] What I got as feedback for the last-hanged jury, the last trial - I ask all the jurors if they work well in groups. My concern for Juror 22, she was on Judge Judy, and she said she brought a case against her own mom regarding some type of loan. That, to me, indicated someone, based on my experience that I mentioned with 22, with a [district attorney] that we had in our office, who also went on Judge Judy, and that individual was hard to work with. [¶] From watching Judge Judy, individuals that are willing to bring their problems onto TV nationally over an issue, much less with their mother, that's someone that could also hang a jury up and not listen to other people. It seems like headstrong character -overly headstrong for that situation. I want to avoid that. That was the reason that I kicked her."
In evaluating these stated reasons, the trial court said: "I did note there were times, particularly whenever there was a question about race, in particular, when I was asking the questions about white police officers, black individuals, she did, kind of, frown and looked uncomfortable with the questions. So I noted that, kind of, body language, as well. The Judge Judy thing, maybe, causes one to think, maybe, a little bit out of the mainstream.
"So I'm satisfied, at this point, that the stated reasons demonstrate that the excusal was not on the basis of race. I would note, however, number one, I was the trial judge the first time this case was tried, so I'm aware of the situation that [the prosecutor] is referring to, where there was one or possibly two possible jurors who happened to be African American, who afterward, perhaps, expressed the view that they would be unlikely to convict a young black male of an offense against white police officers.
"That is not a basis to exclude black individuals from this panel, either male or female. There would have to be something specific about the individual that would justify an excusal based upon a non-race basis. If the only basis of exercising a peremptory challenge is, well, last time we tried this, we had an African American juror who wouldn't convict an African American male, so I'm going to exclude African Americans, no, you can't do that. That would be precluded by Batson- Wheeler.
"It would have to be something specific about that juror. So, I think, that should be clear. But in this case, with regards to [Juror No. 22], I'm satisfied that the stated reason, particularly body language, which I noted on at least one or two occasions, demonstrates to me that the excusal was not made on the basis of race. So at this time, the Batson-Wheeler motion is denied, obviously, without prejudice to renew it if there is something else that occurs." (See Batson v. Kentucky(1986) 476 U.S. 79; People v. Wheeler(1978) 22 Cal.3d 258.)
As to the demeanor-based reason, the trial court did not confirm the prosecutor's observation that "her body language indicated to me that she didn't like me or defense counsel." Instead, the trial court offered its own, different observation of Juror No. 22's demeanor: "I did note there were times, particularly whenever there was a question about race, in particular, when I was asking the questions about white police officers, black individuals, she did, kind of, frown and looked uncomfortable with the questions." The trial court did not explain how its own observation corroborated the prosecutor's. The Court of Appeal, citing our case law, bridged this gap by explaining that "the trial court's observations corroborated, rather than improperly replaced, the prosecutor's stated demeanor concern. Observing frowning and discomfort when relevant subject matter is referenced is consistent with Juror No. 22 looking like she disliked both sides. As the People argue, both behaviors can demonstrate a general €˜[h]ostility toward . . . the proceedings.' "
This analysis, though supported by precedent, leaves much to be desired. To be sure, both the body language reported by the prosecutor and the demeanor observed by the trial court "can demonstrate a general 'hostility toward . . . the proceedings.'" (Italics added.) But they can also be unrelated: Juror No. 22's apparent discomfort with the subject matter of the case did not necessarily have anything to do with her dislike of both counsel, and the prosecutor identified only the latter, not the former, as a concern. Importantly, the prosecutor himself, after stating that the juror's demeanor indicated she didn't like either counsel, did not suggest the reason was that she had general hostility toward the proceedings. Rather, he said, "I couldn't figure out exactly why."
Consider how this demeanor-based reason would fare under the new legal framework enacted after Newson's second trial. (Code Civ. Proc., § 231.7.) The Legislature has declared that counsel's observation that a "prospective juror exhibited either a lack of rapport or problematic attitude, body language, or demeanor" has "historically been associated with improper discrimination in jury selection" and is "presumptively invalid" as a reason for exercising a peremptory strike "unless the trial court is able to confirm that the asserted behavior occurred, based on the court's own observations or the observations of counsel for the objecting party." (Id., subd. (g)(1)(B), (2).) "Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried." (Id., subd. (g)(2).) A trial court "shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge." (Id., subd. (d)(1).) "The reviewing court shall consider only reasons actually given . . . and shall not speculate as to or consider reasons that were not given . . . ." (Id., subd. (j).)
These standards were not met by the prosecutor, who gave a presumptively invalid demeanor- based reason; by the trial court, which did not confirm that the asserted behavior occurred based on its own or defense counsel's observations, and instead relied on its own, different observation of Juror No. 22's demeanor; or by the Court of Appeal, which speculated that the juror harbored general hostility to the proceedings when the prosecutor himself said "I couldn't figure out exactly why" the juror appeared to indicate dislike of both counsel.
Further, it bears noting that the reason offered by the trial court would fare no better than the prosecutor's demeanor concern under the new legal framework. The trial court said Juror No. 22 "looked uncomfortable" when asked "questions about white police officers, black individuals." Although the Court of Appeal characterized this discomfort as demonstrating hostility toward the proceedings, the new framework teaches that trial courts must be careful to probe such vague characterizations when evaluating whether "an objectively reasonable person would view race . . . as a factor in the use of the peremptory challenge. . . ." (Code Civ. Proc., § 231.7, subd. (d)(1).) Among other things, trial courts should consider "[w]hether a reason might be disproportionately associated with a race. . . ." (Id., subd. (d)(3)(E).) Perceived "discomfort" with questions about race - particularly questions about policing and race - may serve as a proxy for race. (Id., subd. (e)(1) [peremptory challenge based on a prospective juror expressing "a distrust of or having a negative experience with law enforcement or the criminal legal system" is presumptively invalid]; see, e.g., People v. Miles(2020) 9 Cal.5th 513, 614 (dis. opn. of Liu, J.) [a prosecutorial practice of striking jurors based on their views of the O.J. Simpson case would result in disproportionate removal of Black jurors]; see also People v. Flores(2024) 15 Cal.5th 1032, 1055 (conc. opn. Of Evans, J.) [noting generally the impact of racial disparities in policing].)
Turning to the prosecutor's second reason, the record indicates that Juror No. 22, when asked if she had ever been a party to a lawsuit, said, "I was on Judge Judy for not paying back a loan to my mom." The prosecutor mentioned the juror's appearance on Judge Judy as an indication that she might be "hard to work with" and "overly headstrong," and "could . . . hang a jury up and not listen to other people." But in describing this concern, the prosecutor said, "[S]he was on Judge Judy, and she said she brought a case against her own mom regarding some type of loan" (italics added), which is not true, before going on to say Juror No. 22 was "willing to bring [her] problems onto TV nationally over an issue, much less with [her] mother," which is true.
I agree with the Court of Appeal that the trial court was obliged to inquire further because Juror No. 22's other voir dire answers indicated she would work well with others, and especially because her employment as a premium customer service agent for a national airline seems inconsistent with the characterization of her as an "overly headstrong" person who might be "hard to work with" and might "not listen to other people."
Moreover, I would not excuse the prosecutor's assertion that Juror No. 22 initiated the suit that led to her appearance on Judge Judy as a "seemingly sincere error." This assumes the answer to the very issue at the heart of the Batson inquiry: whether the prosecutor's stated reason was sincere or pretextual. Frankly, I tend to agree with the trial court that "[t]he Judge Judy thing, maybe, causes one to think, maybe, a little bit out of the mainstream" and "there might be something to that." But the prosecutor's misstatement - especially coming after his observation that a prior jury had hung 11 to 1 (the trial court attributed the holdout to a Black juror) - should have raised suspicion that the prosecutor viewed Juror No. 22 through a racialized lens and apparently heard what he wanted to hear in her voir dire testimony, even though contrary to the record. (See Henderson v. Thompson(Wn. 2022) 518 P.3d 1011, 1023 [counsel "characterized Henderson as 'combative' and 'confrontational.' These terms evoke the harmful stereotype of an 'angry BLACK woman.' "], citing Jones & Norwood, Aggressive Encounters & White Fragility: Deconstructing the Trope of the Angry Black Woman(2017) 102 Iowa L.Rev. 2017, 2049; Bannai, Challenged X 3: The Stories of Women of Color Who Teach Legal Writing(2014) 29 Berkeley J. Gender L. & Just. 275, 280 [quoting one professor as saying, "There's a bias against strong black women. There's a stereotype of the angry black woman, and media have perpetuated that stereotype. 'She's strong and better not cross her, difficult to get along with,' a 'my way or the highway' mentality, irrational . . . and impossible to control."].) Given these circumstances, the prosecutor's second "reason is suspect," and "the trial court failed to ascertain adequately the credibility of this reason."
Thus, we are left with only the prosecutor's demeanor-based reason, and as explained above, I would not describe the trial court's "demeanor finding" as one of "near unassailability." Reasonable minds may differ on whether the credibility of one out of two stated reasons, under these circumstances, is sufficient to satisfy the standards in our case law. (See People v. Smith(2018) 4 Cal.5th 1134, 1157-1158.) But the larger point is that the entirety of the record and the circumstances here - including the prosecutor's statement of reasons, the trial court's ruling, and the Court of Appeal's opinion, though legally supportable - do not inspire great confidence that Juror No. 22 was in fact removed without regard to her race.
The Legislature has found that "the existing procedure for determining whether a peremptory challenge was exercised on the basis of a legally impermissible reason has failed to eliminate that discrimination" (Stats. 2020, ch. 318, § 1, subd. (b)), and it has "put into place an effective procedure for eliminating the unfair exclusion of potential jurors based on race" among other categories (id., § 1, subd. (a)). In all likelihood, the issue here would have a different outcome if evaluated under the new standards, which again suggests "the Legislature may wish to consider whether to make the reforms of section 231.7 retroactive to cases pending on appeal." (Nadey, supra, ___ Cal.5th at p. ___ [2024 WL 3016945, at p. *57] (dis. opn. of Liu, J.); cf. Stats. 2022, ch. 739, § 1 [amending the California Racial Justice Act of 2020 to apply retroactively "to ensure justice for all"].)
Finally, despite the rejection of his equal protection claim, Newson may have an avenue for relief under the California Racial Justice Act of 2020 (RJA), which was designed to uproot racial bias in the criminal justice system and applies retroactively. (Stats. 2022, ch. 739; Stats. 2020, ch. 317, § 2, subd. (c) [observing that "the legal standards for preventing racial bias in jury selection are ineffective" and that" 'requiring a showing of purposeful discrimination sets a high standard that is difficult to prove in any context' "].) Proof of discrimination under the RJA does not require the showing of intent required under equal protection doctrine, and it is possible that Newson has a valid RJA claim in light of the totality of circumstances here.
I Concur:
EVANS, J.