BILL ANALYSIS                                                                                                                                                                                                    





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 87 (Mark Stone)
          Version: June 1, 2015
          Hearing Date:  June 9, 2015
          Fiscal: No
          Urgency: No
          RD   


                                        SUBJECT
                                           
                            Jurors:  peremptory challenge

                                      DESCRIPTION  

          Existing law prohibits the use of 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.  This bill would expand that protection  
          against discrimination by, instead, prohibiting the use of 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 a specified  
          anti-discrimination statute under the Government Code (i.e.  
          race, national origin, ethnic group identification, religion,  
          age, sex, sexual orientation, color, genetic information, or  
          disability), or similar grounds. 

                                      BACKGROUND  

          In 1978, the California Supreme Court declared, "the use of  
          peremptory challenges to remove prospective jurors on the sole  
          ground of group bias denies plaintiffs 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."  
          (People v. Wheeler (1978) 22 Cal.3d 258.)  This concept was  
          later adopted by the U.S. Supreme Court in Batson v. Kentucky  
          (1986) 476 U.S. 79, which held that the Equal Protection Clause  
          of the United States    Constitution prohibits jury selection  
          based upon racial stereotyping.  Eight years later, the Court  








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          decided J. E. B. v.  Alabama ex rel. T. B. (1994) 511 U.S. 127,  
          extending the rationale of Batson to gender discrimination.  

          Additionally, in Rubio v. Superior Court, (1979) 24 Cal.3d 93,  
          the California Supreme Court held that a defendant's right to  
          trial by a jury drawn from a representative cross section of the  
          community is violated when any "cognizable group" within that  
          community is excluded from jury venire.  Then, in People v.  
          Garcia (2000) 77 Cal.App.4th 1269, the appellate court  
          determined that lesbians and gay men met the two requirements in  
          Rubio and, thus, constitute a "cognizable group."  

          Subsequently, in 2000, AB 2418 (Migden, Ch. 43, Stats. 2000)  
          codified those cases as Section 231.5 of the Code of Civil  
          Procedure. The resulting section prohibits the use of 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.  

          This bill now seeks to expand this protection by 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.  

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that no person in the State of California  
          shall, on the basis of race, national origin, ethnic group  
          identification, religion, age, sex, sexual orientation, color,  
          genetic information, or disability, be unlawfully denied full  
          and equal access to the benefits of, or be unlawfully 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.  (Gov. Code Sec. 11135(a).)  
           

           Existing law  defines "sex" for the above purposes to include,  
          but not be limited to, a person's gender, pregnancy or medical  
          conditions related to pregnancy, childbirth or medical  
          conditions related to childbirth, as well as breastfeeding or  
          medical conditions related to breastfeeding.  Existing law  







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          defines "gender" to mean sex, and include a person's gender  
          identity and gender expression, and defines "gender expression"  
          to mean a person's gender-related appearance and behavior  
          whether or not stereotypically associated with the person's  
          assigned sex at birth.  (Gov. Code Secs. 11135, 12926(r).)

           Existing law  defines "sexual orientation" for the above purposes  
          to mean heterosexuality, homosexuality, and bisexuality.  (Gov.  
          Code Secs. 11135, 12926(s).)  
           
          Existing law  prohibits the exemption of any eligible person from  
          service as a trial juror by reason of occupation, economic  
          status, or any characteristic listed or defined in the  
          Government Code Section above (i.e. race, national origin,  
          ethnic group identification, religion, age, sex, sexual  
          orientation, color, genetic information, or disability), or for  
          any other reason.  Existing law provides that an eligible person  
          may be excused from jury service only for undue hardship, upon  
          themselves or upon the public, as defined by the Judicial  
          Council.  (Code Civ. Proc. Sec. 204.)  

           Existing law  specifies procedures governing the selection of a  
          fair and impartial jury in civil trials, including that counsel  
          for each party shall have the right to examine any of the  
          prospective jurors, as specified, in order to enable counsel to  
          intelligently exercise both peremptory challenges and challenges  
          for cause.  (Code Civ. Proc. Sec. 222.5.)  
           
          Existing law  specifies procedures governing the selection of a  
          jury in criminal trials, including that counsel for each party  
          shall have the right to examine any or all of the prospective  
          jurors, as specified, in aid of the exercise of challenges for  
          cause.  (Code Civ. Proc. Sec. 223.) 

           Existing law  provides that a challenge is an objection made to  
          the trial jurors that may be taken by any party to the action,  
          and is of specified classes and types, including (1) a challenge  
          to the trial jury panel for cause, as specified, and (2) a  
          challenge to a prospective juror by either:
           a challenge for cause, for one of the following reasons:
             o    general disqualification-that the juror is disqualified  
               from serving in the action on trial; 
             o    implied bias-as, when the existence of the facts as  
               ascertained, in judgment of law disqualifies the juror; or
             o    actual bias-the existence of a state of mind on the part  







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               of the juror in reference to the case, or to any of the  
               parties, which will prevent the juror from acting with  
               entire impartiality, and without prejudice to the  
               substantial rights of any party; or
           a peremptory challenge to a prospective juror.  (Code Civ.  
            Proc. Sec. 225(b).) 

           Existing law  enumerates the sole statutory challenges for cause  
          on grounds of general disqualification or implied bias, as  
          specified. (Code Civ. Proc. Secs. 228, 229.) 

           Existing law  provides that after any jurors have been removed  
          from the panel for cause, the parties may remove a specified  
          number of jurors peremptorily (without giving any reason), and  
          provides a specified number of peremptory challenges to which  
          each party is entitled depending on the number of parties in the  
          litigation and whether the case is criminal or civil in nature.   
          (Code Civ. Proc. Sec. 231.) 

           Existing case law  provides that a defendant's right to trial by  
          a jury drawn from a representative cross section of the  
          community, as guaranteed by the Sixth Amendment of the federal  
          Constitution and article I, section 16, of the California  
          Constitution, is violated when a "cognizable group" within that  
          community is excluded from jury venire.  In order for a group to  
          be considered cognizable, two requirements must be met:  (1) the  
          group's members must share a common perspective arising from  
          their life experience in the group; and (2) it must be shown by  
          the party seeking to prove a violation of the representative  
          cross section rule that no other members of the community are  
          capable of adequately representing the perspective of the group  
          assertedly excluded.   (Rubio v. Superior Court, (1979) 24  
          Cal.3d 93, 97-98, citing People v. Wheeler (1978) 22 Cal.3d 258,  
          272; see also People v. Garcia (2000) 77 Cal.App.4th 1269,  
          1274.)

           Existing law  provides that 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.  (Code Civ. Proc. Sec.  
          231.5.)

           This bill  would align the list of protected classifications for  
          purposes of non-discriminatory peremptory challenges with the  







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          list of classifications protected under Government Code Section  
          11135, above, thereby prohibiting the use of 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 ethnic group identification, age, genetic  
          information, or disability, in addition to race, color,  
          religion, sex, national origin, sexual orientation, or similar  
          grounds, as provided under existing law.

                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author: 

            This bill seeks to update current law to ensure that  
            peremptory challenges may not be used to discriminate against  
            prospective jurors based on gender identity, gender  
            expression, ethnic group identification, genetic information  
            or disability. 

            The jury system provides the foundation for the California  
            justice system.  We rely upon an impartial jury to yield fair  
            and just results.  The jury, by law, should be a cross section  
            of the population in a community.  Without specific protection  
            from peremptory challenges made on the assumption of bias  
            because of gender identity, gender expression, ethnicity, age,  
            genetic information, and disability, it is possible for many  
            community members to be excluded from prospective jury  
            service.  If certain members of a community are denied from  
            the prospect of jury service, it is possible to deny victims  
            and defendants the right to a truly fair trial.  

            The need for fair trials is especially important in the  
            transgender and gender non-conforming community, because a  
            disproportionate amount of these individuals come into contact  
            with the criminal justice system.  At least 16 [percent] of  
            transgender individuals have been incarcerated at some point  
            in their lives, with the percentage of transgender women even  
            higher at 21 [percent.] (The National Transgender  
            Discrimination Survey Report:  
            http://endtransdiscrimination.org/report.html). 

            Furthermore, by aligning the jury code with the government's  
            non-discrimination laws, California can continue to be a  







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            leader in ensuring that transgender people and others are  
            protected from discrimination and are treated equally under  
            law.

          The National Center for Lesbian Rights and the Transgender Law  
          Center write in support that "[a] jury, by law, must represent a  
          cross section of the population in a community in order to  
          ensure that a defendant is tried by his or her peers.  This  
          philosophy underpins the foundation of California's jury system,  
          and we rely upon it to conform the selection of an impartial  
          jury that will yield fair and just results.  Without specific  
          protection from peremptory challenges made on the assumption of  
          bias because of gender identity, gender expression, ethnicity,  
          age, genetic information, and disability, it is possible for  
          many community members to be excluded from prospective jury  
          service. If these individuals are denied from the prospect of  
          jury service, then it is possible to deny victims and defendants  
          the right to a truly fair trial."

          The American Civil Liberties Union notes in support that:

            Section 204 of the Code of Civil Procedure currently provides  
            that no eligible person shall be exempt from jury service by  
            reason of any characteristic listed or defined in Section  
            11135 of the Government Code-the statute that prohibits  
            discrimination in state programs and activities on the basis  
            of enumerated characteristics.  Similarly, the peremptory  
            challenge statute, CCP section 231.5, currently provides that  
            an individual may not be removed from jury service based on 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."  Unfortunately, the  
            list of expressly protected characteristics has not bene  
            updated to reflect changes in the state's non-discrimination  
            policies, including Section 11135 of the Government Code,  
            which arguably governs peremptory challenges.  While the  
            existing catch-all provision prohibiting discrimination in the  
            exercise of peremptory challenges on "similar grounds" might  
            be interpreted to cover all characteristics within section  
            11135 this bill would make the point explicitly and therefore  
            give helpful guidance to courts, parties and their counsel. 

          2.   The voir dire process   

          Under California law, every citizen over 18 years of age is  







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          eligible and qualified to be a prospective juror unless they  
          fail to meet certain minimal requirements.  For example, they  
          must be a resident of the jurisdiction they are summoned to  
          serve, be possessed of sufficient knowledge of the English  
          language, and not be subject to a conservatorship.  Aside from  
          these threshold qualification requirements that must be met for  
          a person to be eligible to serve on a jury, California law  
          prohibits any person from being excluded from eligibility for  
          jury service.  While otherwise eligible persons may be excused  
          by the courts on a case-by-case basis for hardship, be  
          challenged for cause (such as for express or implied bias), or  
          otherwise be subject to a peremptory challenge, California law  
          prohibits the exemption of any eligible person from service by  
          reason of occupation, economic status, or any characteristic  
          listed or defined under Government Code Section 11135 (i.e.  
          race, national origin, ethnic group identification, religion,  
          age, sex, sexual orientation, color, genetic information, or  
          disability), or for any other reason.  (See Code Civ. Proc. Sec.  
          204.) 

          Existing law allows the parties in criminal and civil cases to  
          remove jurors from the panel by exercising challenges for cause  
          and peremptory challenges.  Challenges are made during the voir  
          dire process during which the court, with the assistance of the  
          attorneys, inquires of the prospective jurors to determine the  
          suitability of individuals to render a fair judgment about the  
          facts of the case.  

          Challenges for cause are statutory and include:  incapacity;  
          consanguinity or affinity; fiduciary, domestic or business  
          relationship; serving as a juror or witness in previous trial  
          involving parties; interest in the action; opinion on the  
          merits; bias or prejudice; or          being a party to another  
          action.  (Code Civ. Proc. Sec. 129; see also 7 Witkin Cal. Proc.  
          Trial Sec. 130.)  In contrast, peremptory challenges are made  
          without need to state a cause.  "The purpose of the peremptory  
          challenge is to insure an impartial jury by allowing a specific  
          number of jurors to be excused even though no statutory  
          challenge for cause can be made; e.g., where a juror is believed  
          to be biased but the bias cannot be proved."  (7 Witkin Cal.  
          Proc. Trial Sec. 125.)  That being said, while peremptory  
          challenges are permitted without initially stating a reason, "it  
          has long been made clear in criminal cases that those challenges  
          may not be made for the purpose of excluding a cognizable group.  
          [ . . . ]  More recently this principle, grounded on the  







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          guaranties of equal protection and trial by a jury drawn by a  
          fair cross-section of the community, has been applied in civil  
          cases as well."  (7 Witkin Cal. Proc. Trial Sec. 127.)  In that  
          light, the Code of Civil Procedure expressly prohibits the  
          exercise of a peremptory challenge "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."  (Code Civ. Proc. Sec.  
          231.5.)  

          This bill would now align the list of classifications protected  
          against discriminatory peremptory challenges with Section 11135  
          of the Government Code, which additionally protects against  
          discrimination on the basis of ethnic group identification, age,  
          genetic information, or disability, as well as race, color,  
          religion, sex, national origin, and sexual orientation.  By  
          incorporating not just the list, but also the definitions of the  
          Government Code's non-discrimination statute, this bill would  
          protect against the use of peremptory challenges to remove a  
          prospective juror on the basis of an assumption that the  
          prospective juror is biased merely because of the person's race,  
          national origin, ethnic group identification, religion, age,  
          sex, sexual orientation, color, genetic information, disability,  
          or similar grounds, as well as the use of a peremptory challenge  
          on the basis of an assumption that the prospective juror is  
          biased merely because of his or her gender (including a person's  
          gender identity and gender expression, as defined), or the  
          person's heterosexuality, homosexuality, or bisexuality, among  
          other things. 
          As a matter of public policy, given that the existing section  
          prohibiting the use of discriminatory peremptory challenges has  
          not been updated since its enactment over 15 years ago, and  
          other anti-discrimination statutes under California law have  
          been updated over the years to protect additional cognizable  
          groups such as age or disability from discrimination for various  
          purposes, the statute should arguably be made consistent and  
          harmonized with those more recently updated statutes.   
          Furthermore, by incorporating the classifications listed and  
          defined by Government Code Section 11135 (i.e. race, national  
          origin, ethnic group identification, religion, age, sex, sexual  
          orientation, color, genetic information, or disability), this  
          bill would conform this section to existing jury selection law,  
          which prohibits the exemption of any eligible person from  
          service by reason of a characteristic listed or defined in that  
          same section.  (See Code Civ. Proc. Sec. 204.) 







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           Support  :  American Civil Liberties Union of California; American  
          Federation of State, County and Municipal Employees, AFL-CIO;  
          California Communities United Institute;
          California Public Defenders Association; Consumer Attorneys of  
          California; National Center for Lesbian Rights; Transgender Law  
          Center

           Opposition  :  None Known 

                                        HISTORY
           
           Source  :  Equality California

           Related Pending Legislation  :  SB 213 (Block, 2015) would reduce  
          the number of peremptory challenges in misdemeanor trials and  
          includes a January 1, 2021, sunset.  The bill is currently in  
          the Assembly Public Safety Committee.   

           Prior Legislation  :

          AB 2646 (Ting, Ch. 912, Stats. 2014) was identical to this bill  
          in its introduced form but subsequently gutted and amended in  
          the Senate into a different topic. 

          AB 2418 (Migden, Ch. 43, Stats. 2000) was enacted to, among  
          other things, provide that 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  
          he or she is a member of an identifiable group distinguished on  
          racial, religious, ethnic, sexual orientation, gender, or  
          similar grounds.

           Prior Vote  :

          Assembly Floor (Ayes 68, Noes 2)
          Assembly Judiciary Committee (Ayes 9, Noes 1)

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