The Supreme Court issued two criminal opinions yesterday. The first clarifies what constitutes a verbal threat under the criminal threat statute, Penal Code section 422. The second addresses the nature of the showing that a prosecutor must make to overcome a Batson/Wheeler challenge alleging unconstitutional discrimination in jury selection.
In People v. Gonzalez, S223763, the Court addressed whether nonverbal, threatening gestures constitute a “statement, made verbally, in writing, or by means of an electronic communication device” as required for making a criminal threat in violation of Penal Code section 422. The defendant, a gang member, made a gang hand-sign at an off-duty police officer and his friends at a restaurant. The defendant then drew his finger across his neck in a cutting motion and shaped his hand like a gun and pointed it at the group. The defendant was charged under section 422 with making criminal threats. The defendant sought to set aside the criminal threats counts, arguing his hand gestures were not a statement “made verbally” within the meaning of the statute. The trial court agreed and dismissed the counts. The Court of Appeal reversed.
In a unanimous opinion authored by Justice Corrigan, the Supreme Court reversed the opinion of the Court of Appeal. The Court ruled, “Penal Code section 422’s express reference to a statement―made verbally seems to exclude nonverbal conduct, at least when such a statement is not in writing or made via an electronic communication device.” The court observed, with reference to the legislative history of other statutes, that “the Legislature fully understands how to define the reach of a statute more broadly in keeping with its intent. Here, it did not do so.” The Court added, “As the high court has stated with respect to symbolic speech in the First Amendment context, ―’[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.’ ” (Typed opn. 13, quoting United States v. O’Brien (1968) 391 U.S. 367, 376.)
In three consolidated cases, People v. Gutierrez, Case No. S224724; People v. Ramos, Case No. S224724; and People v. Enriquez, Case No. S240419, the Court directed the parties to brief whether the Court of Appeal erred in upholding the trial court’s denial of defendants’ Batson/Wheeler motions. In People v. Wheeler (1978) 22 Cal.3d 258, the Court explained, it “held that discrimination in jury selection based on race, ethnicity, or similar grounds offends constitutional guarantees.” The U.S. Supreme Court later so held in Batson v. Kentucky (1986) 476 U.S. 79.
The three defendants, alleged Latino gang members charged in connection with a shooting, made a Batson/Wheeler motion during jury selection. They contended that “the prosecutor had improperly excluded prospective jurors on account of Hispanic ethnicity, after the prosecutor exercised 10 of 16 peremptory challenges to remove Hispanic individuals from the jury panel.” The trial court concluded the defendants had set forth a prima facie case, but it denied the defendants’ motion after finding the prosecutor’s proffered reasons to be neutral and nonpretextual. The Court of Appeal affirmed the defendants’ convictions.
The Supreme Court reversed in a unanimous opinion authored by Justice Cuellar. It held the record did not support the denial of the Batson/Wheeler motion with respect to one prospective juror, a Hispanic female from the same town as one of the defendants. The Court explained: “On this record, we are unable to conclude that the trial court made ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation” regarding the decision to strike the juror. (Typed opn., 26.) It added, “[t]he court may have made a sincere attempt to assess the [same hometown] rationale, but it never explained why it decided this justification was not a pretext for a discriminatory purpose. Because the prosecutor’s reason for this strike was not self-evident and the record is void of any explication from the court, we cannot find under these circumstances that the court made a reasoned attempt to determine whether the justification was a credible one.” (Ibid.) The Court held the error to be “structural, damaging the integrity of the tribunal itself.”
The Court further held that the Court of Appeal erred in refusing to conduct a comparative juror analysis. The Court explained: “By avoiding comparative juror analysis in this context, the Court of Appeal went against the grain of established holdings from both our court and the high court, which recognize comparisons between panelists who are challenged and those who are not to be valuable tools in determining the credibility of explanations.” (Typed opn., 29.) The Court added: “We are mindful that comparative analysis is subject to inherent limitations, especially when performed for the first time on appeal. [Citation.] But it was error for the Court of Appeal to categorically conclude that a court should not undertake a comparative analysis for the first time on appeal — regardless of the adequacy of the record.” (Id. at pp. 29-30.)
Justice Liu penned a separate 11-page concurrence to “to review key principles of Batson/Wheeler analysis and to make a few observations about the nature of the legal inquiry.” (Conc. opn. of Liu, J., 1.) He noted that a Batson/Wheeler analysis “requires a searching review of the record as well as sensitivity to the disproportionate effect that certain reasons — such as the gang-related reasons in this case — may have in excluding members of cognizable groups.” (Id. at 10.) He also observed that the preponderance of the evidence standard for determining whether a challenge to a juror was improperly motivated “is not designed to elicit a definitive finding of deceit or racism. Instead, it defines a level of risk that courts cannot tolerate in light of the serious harms that racial discrimination in jury selection causes to the defendant, to the excluded juror, and to ‘public confidence in the fairness of our system of justice.’ ” (Id. at p. 11.)
