BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                         AB 87|
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                                   THIRD READING 


          Bill No:  AB 87
          Author:   Mark Stone (D)
          Amended:  6/1/15 in Senate
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  6-1, 6/9/15
           AYES:  Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Anderson

           ASSEMBLY FLOOR:  68-2, 3/19/15 - See last page for vote

           SUBJECT:   Jurors:  peremptory challenge


          SOURCE:    Equality California


          DIGEST:  This bill extends the existing protection against 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 certain characteristics (race, color,  
          religion, sex, national origin, sexual orientation, or similar  
          grounds) to all characteristics 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.


          ANALYSIS:   


          Existing law: 








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           1) Provides, pursuant to Government Code Section 11135, 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.  


           2) 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.  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. 


           3) Defines "sexual orientation" for the above purposes to mean  
             heterosexuality, homosexuality, and bisexuality.  


           4) 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.  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.  


           5) 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  







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             prospective jurors, as specified, in order to enable counsel  
             to intelligently exercise both peremptory challenges and  
             challenges for cause.   


           6) 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.  


           7) 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 (a) a challenge to  
             the trial jury panel for cause, as specified, and (b) 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 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.


                 A peremptory challenge to a prospective juror.  


           1) Enumerates the sole statutory challenges for cause on  
             grounds of general disqualification or implied bias, as  
             specified. 







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           2) 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.  


           3) Provides, under Rubio v. Superior Court (1979) 24 Cal.3d 93,  
             97-98, 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:  (a) the  
             group's members must share a common perspective arising from  
             their life experience in the group; and (b) 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.   


           4) 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.


          This bill aligns the list of protected classifications for  
          purposes of non-discriminatory peremptory challenges with the  
          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.







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          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 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, Chapter 43, Statutes of  
          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.  







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          Comments


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







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          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/11/15)


          Equality California (source) 
          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:   (Verified6/11/15)


          None received
           
           

          ASSEMBLY FLOOR:  68-2, 3/19/15
          AYES:  Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brough,  
            Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu,  
            Chu, Cooley, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier,  
            Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez,  
            Gonzalez, Gordon, Gray, Grove, Holden, Irwin, Jones-Sawyer,  
            Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,  
            Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte,  
            O'Donnell, Olsen, Perea, Quirk, Rendon, Ridley-Thomas,  
            Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond,  
            Ting, Wagner, Waldron, Wilk, Williams, Wood, Atkins
          NOES:  Gallagher, Harper
          NO VOTE RECORDED:  Travis Allen, Bigelow, Cooper, Beth Gaines,  
            Hadley, Roger Hernández, Jones, Melendez, Patterson, Weber


          Prepared by:Ronak Daylami / JUD. / (916) 651-4113







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          6/11/15 12:45:58


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