Filed 5/29/98







Plaintiff and Respondent,



Defendant and Appellant.



(Contra Costa County

Super. Ct. No. 9623273)



Defendant appeals from his conviction of petty theft with a prior conviction for theft and raises two claims of error: (1) the prosecutor improperly exercised a peremptory challenge to remove a potential Black juror because she was a Jehovahís Witness and (2) the trial court erroneously instructed the jury to draw adverse inferences from defendantís failure to explain the evidence against him. We find no error and affirm the judgment.


On October 11, 1996, defendant was observed, along with three other people, to be acting suspiciously in the young menís clothing department at Macyís in the Hilltop Mall. Store officers using closed-circuit television surveillance equipment observed the woman in the group, later identified as Lavee Crayon, take a Fila jacket from a rack, pull off the sensor tags, and hand the jacket to defendant. Ms. Crayon then took a second identical jacket and joined up with defendant in the aisle; the two headed together for the exterior door. Defendant stuck his head out the door, observed several uniformed mall security officers standing there, and then walked back through the store with Ms. Crayon into the main mall. The two were apprehended by mall security officers.

Both defendant and Ms. Crayon had the Fila jackets in their hands. The jacket held by defendant still had the price tag.

Ms. Crayon had no money with her. She told the security officers she had brought the jacket with her to make a return. She said she knew nothing about the second jacket held by defendant. Defendant told the security officer he intended to pay for the jacket. Defendant had $1 in his possession.

In his defense at trial, defendant denied trying to steal a coat. Defendant testified that he and a friend had been trying to sell jewelry at the mall and the security officers stopped them. He did not go to the mall to steal. Ms. Crayon handed defendant a coat, but defendant had no knowledge the coat was stolen; he had not been paying attention to what she was doing in the store. The jacket could have been purchased by Ms. Crayon. He did not ask whether she paid for the coat. When defendant looked out the store door he was looking for a friend. When he saw the security officers but didnít see his friend, he went back into the store.

Defendant also testified he had been drinking. He acknowledged on cross-examination he would not have been able to pay for the jacket, as he had only $1 with him.


I. Peremptory Challenge of Juror

In People v. Wheeler (1978) 22 Cal.3d 258, the California Supreme Court held that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by jury drawn from a representative cross-section of the community. Likewise, the United States Supreme Court, while rejecting the "fair cross-section" theory (Holland v. Illinois (1990) 493 U.S. 474), has condemned peremptory challenges on the basis of group bias as a violation of the right to equal protection of the laws under the Fourteenth Amendment. (Batson v. Kentucky (1986) 476 U.S. 79, 89.)

Under both Wheeler and Batson, a defendant who challenges the prosecutorís use of peremptory challenges must make out a prima facie case that the excluded jurors are members of a cognizable group and must show a strong likelihood that the jurors are being challenged because of their group association rather than because of any specific bias.1 The burden then shifts to the prosecution to come forward with a neutral explanation related to the particular case to be tried. (People v. Johnson (1989) 47 Cal.3d 1194, 1216.)

In the present case, defendant, who represented himself at trial, made a Wheeler motion based on the exclusion of the only two Black prospective jurors called into the jury box. The trial court found that defendant had made a prima facie showing of systematic exclusion and called upon the prosecutor to justify the peremptory challenges. The prosecutor then proffered explanations for the exclusion of the two potential jurors. On appeal, defendant challenges the exclusion of only one of those jurors, juror no. 4.

Juror no. 4 had indicated on her questionnaire that she has "moral, religious, or other principals [sic] that make it difficult to determine whether someone is guilty or not." When asked to explain, the juror replied, "Iím a Jehovahís Witness, so it depends upon the nature of the case. . . . [A] case where the death penalty would be introduced, thatís the only thing I have problems with." The trial court then asked the juror whether her beliefs would cause difficulty in sitting on a jury in a case that does not involve the death penalty, and the juror replied, "No."2

The prosecutor explained his peremptory challenge by stating that juror no. 4 was a Jehovahís Witness and, although the juror had said during voir dire that her religious beliefs would not cause her difficulty in this noncapital case, the prosecutorís experience with Jehovahís Witnesses had been that they have a hard time with criminal trials as "they couldnít judge anybody at all." The prosecutor said, "I thought that I wouldnít want to take a chance if she had any hesitations whatsoever with the religious principals [sic] in judging and finding somebody guilty."

Defendant immediately objected to the prosecutorís stated justification, arguing that the prosecutor should not "judge people on their religion." The trial court found the prosecutorís reasons to be "neutral" and denied the Wheeler motion.

Defendant now seems to concede that the prosecutorís justification for challenging juror No. 4 was race-neutral. He argues, however, that the prosecutor "simply substituted one form of discrimination for another"; that the prosecutorís peremptory challenge based solely on religion was just as impermissible as a challenge based on race.

This issue is apparently one of first impression in California. The California Supreme Court has said that "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 Ďgroup biasí--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." (People v. Wheeler, supra, 22 Cal.3d at p. 276; italics added.) However, both Wheeler and Batson involved exclusion of jurors on racial grounds. Although the Wheeler-Batson doctrine has been extended beyond racial discrimination to prohibit peremptory challenges based solely on gender (J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127; People v. Cervantes (1991) 233 Cal.App.3d 323, 334) or ethnicity (People v. Trevino (1985) 39 Cal.3d 667, 686-687 disapproved on another point in People v. Johnson, supra, 47 Cal.3d at pp. 1219-1221), neither the California Supreme Court nor the United States Supreme Court has yet been presented with a case involving exclusion of jurors on the basis of religion.3

Courts in other jurisdictions, however, have examined the use of peremptory challenges to exclude prospective jurors who are Jehovahís Witnesses, and those courts have permitted the exclusion based upon the jurorís religious views.

In State v. Davis (Minn. 1993) 504 N.W.2d 767, cert. denied 511 U.S. 1115, the defendantís challenge to the prosecutorís peremptory challenge was based, as it was here, upon the race of the potential juror. The question then arose whether the prosecutorís justification was adequate, and the court observed as follows: "If the prosecutor had said no more than she was striking the black juror because he was a Jehovahís Witness, we think this would not have rebutted the prima facie case of racial bias, anymore than if the prosecutor had said she was striking because the black juror was a Lutheran, a Baptist, or a Muslim. In fact, however, the prosecutor went on to explain the reason for her challenge, pointing out Jehovahís Witnesses, as a group, were reluctant to exercise civil authority over other people and that the juror was a devoted member of that religious group." (504 N.W.2d at p. 772.)

The Davis court reasoned that unlike racial bigotry, discrimination on the basis of religious beliefs has relevance to the process of jury selection. That is, a jurorís religious beliefs may produce views on such secular matters as use of intoxicating liquor, cohabitation, necessity of medical treatment, civil disobedience, and the like, and when they do, a peremptory challenge on the basis of such views is not attributable to religious bias. (504 N.W.2d at p. 771.) The Davis court concluded that Batson does not extend to a peremptory strike based on religion. (Ibid.)

In a subsequent case, the North Carolina Supreme Court drew a similar distinction between religious affiliation and relevant religious views. In State v. Eason (No. Car. 1994) 445 S.E.2d 917, the prosecutor exercised a peremptory challenge to excuse a juror who was a Jehovahís Witness, and the prosecutor justified the challenge on two grounds: First, the prosecutor understood that Jehovahís Witnesses do not believe in the death penalty, and the prosecutor feared that the jurorís religious beliefs would interfere with her ability to deliberate on the issue of punishment.4 Second, the prosecutor noted that during the voir dire examination the juror had expressed mixed feelings about the death penalty. The North Carolina Supreme Court concluded that although exclusion of a potential juror on the sole basis of religion would violate the state constitution, the exclusion in that case was not based solely on the jurorís religious affiliation. Rather, the court noted that the prosecutor had done even more than was done in State v. Davis, supra; the prosecutor made a specific inquiry to discover how the jurorís religious beliefs might affect her ability to follow the law. And the juror was excused because of her expressed reservations about the death penalty, not because of her religion. (445 S.E.2d at pp. 921-923.)

Most recently, in Casarez v. State (Tex. Crim.App. 1995) 913 S.W.2d 468, 492-496, the Texas Court of Criminal Appeals, in an en banc decision on rehearing, upheld the prosecutorís peremptory challenges of two Black veniremembers on the basis of their Pentecostal religion. The Casarez court ultimately concluded, as did the Davis court, that Batson does not extend to peremptory removal of prospective jurors on account of their religious affiliation. The Casarez court reasoned as follows: "With few exceptions, the only significant thing that members of a religious faith have in common is their belief in certain principles, doctrines, or rules. To the extent that they have historically been the objects of discrimination, it is on account of these beliefs and not on account of anything else. Yet discrimination on the basis of personal belief has always been considered appropriate in the jury selection context because a venirememberís beliefs reveal an especially important bit of information about his suitability for jury service. They tell us what some of his sympathies and prejudices are. . . . [∂] . . . The treatment of religious creed as an inappropriate basis for peremptory exclusion cannot rationally be distinguished from a similar treatment of persons on account of their Libertarian politics, their advocacy of communal living, or their membership in the Flat Earth Society. . . . [∂] . . . If it is permissible to discriminate against prospective jurors on account of their beliefs, then it is necessarily permissible to discriminate against them on account of their religion, for discrimination on the basis of religion is discrimination on the basis of belief." (913 S.W.2d at pp. 495-496.)

In the present case, as in Davis, the prosecutorís response to defendantís claim of racial discrimination was not a mere assertion that the juror was a Jehovahís Witness. Rather, as in Davis, the prosecutor expressed his understanding that Jehovahís Witnesses decline to judge others. It is true that juror no. 4 did not express actual reservations about her ability to deliberate, and in this respect the present case is distinct from the Eason case. However, we emphasize that the justification for a peremptory challenge need not rise to grounds for a challenge for cause; the prosecutor need not show actual bias. What the prosecutor must show is that the peremptory challenge was seeking to eliminate specific bias--a bias relating to the particular case being tried. (People v. Wheeler, supra, 22 Cal.3d at pp. 274-276; Batson v. Kentucky, supra, 476 U.S. at pp. 79, 97-98.)5 The prosecutorís perception that the jurorís religious views might render her uncomfortable with sitting in judgment of a fellow human being was a specific bias related to the individual jurorís suitability for jury service.

Because the California Supreme Court has indicated, albeit in dictum, that the use of peremptory challenges to exclude jurors solely on the basis of religion would be unconstitutional (People v. Wheeler, supra, 22 Cal.3d at pp. 276-277), we cannot agree with the conclusions of the courts in Casarez and Davis that the rule of Batson v. Kentucky does not extend to religious discrimination. Nonetheless, we follow the reasoning of those courts that exclusion of a juror on the basis of the jurorís beliefs is a legitimate use of the peremptory challenge. (See U.S. v. Somerstein (E.D.N.Y. 1997) 959 F.Supp. 592 [exclusion of Jews when religious practices intertwined with the criminal charges].)

The California Supreme Court has held that the use of peremptory challenges to exclude persons on the basis of their personal views, e.g., reservations about the death penalty, does not violate Wheeler. (People v. Pinholster (1992) 1 Cal.4th 865, 913; People v. Zimmerman (1984) 36 Cal.3d 154, 161.) And before the enactment of Code of Civil Procedure section 223, the court held that prospective jurors could be questioned about their attitudes and beliefs for purposes of assisting in the exercise of peremptory challenges. (People v. Williams (1981) 29 Cal.3d 392; see also People v. Balderas (1985) 41 Cal.3d 144, 183-184.) We are persuaded that the peremptory challenge of a juror on the basis of the jurorís relevant personal values is not improper even though those views may be founded in the jurorís religious beliefs.

II. Jury Instruction

The trial court instructed the jury pursuant to CALJIC No. 2.62 that if it should find that defendant failed to explain or deny evidence against him then the jury could take that failure into consideration as tending to indicating the truth of the evidence.6 Defendant raised no objection below, but he now argues that the instruction was uncalled for as defendant did not fail to explain or deny matters within his knowledge. We reject the argument.

First, contrary to defendantís assertion, defendant did not explain all of the evidence against him. Notably, the testimony of Thomas Rood indicated that when defendant was initially apprehended he claimed he intended to pay for the jacket. Defendant himself testified that he told the mall security officer, "[S]he intends to buy the coat upon leaving [the mall]." Defendant did not explain the obvious contradiction between those statements indicating an intent to purchase the jacket and his testimony at trial that he was simply holding the coat for Ms. Crayon, that he thought perhaps Ms. Crayon had paid for the coat. We find no error in permitting the jury to draw the inference that defendantís statement to the security officer reflected his awareness that the coat was stolen.

Moreover, the instruction applies only when the jury makes a preliminary finding that defendant failed to explain or deny certain evidence. Thus, if defendant is correct that there was no evidence left unexplained, the jury would not have drawn any adverse inferences and the instruction would have been disregarded as irrelevant.

The judgment is affirmed.




Dossee, J.


We concur:



Stein, Acting P.J.



Swager, J.



Trial Court: Contra Costa County Superior Court

Trial Judge: The Honorable William M. Kolin



Ronald Sweet

(Attorney for Appellant/Defendant)


Daniel E. Lungren, Attorney General

George Williamson, Chief Assistant Attorney General

Ronald A. Bass, Senior Assistant Attorney General

Richard Rochman, Deputy Attorney General

Martin S. Kaye, Deputy Attorney General

Office of the Attorney General

(Attorneys for Respondent/Plaintiff)



*  Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the Facts and part II of the Discussion.

1   The courts have now clarified that the defendant need not be a member of the excluded group; it is enough that the challenged juror was a member of a cognizable group. (Powers v. Ohio (1991) 499 U.S. 400; People v. Fuentes (1991) 54 Cal.3d 707, 714.)

2 Juror no. 4 also said she has an uncle who is a "career criminal," who has been charged with the crime involved in the case and has been to prison.

3 The United States Supreme Court denied certiorari in a case in which the Minnesota Supreme Court permitted striking a juror because he was a Jehovahís Witness. (Davis v. Minnesota (1994) 511 U.S. 1115.) Justice Thomas, dissenting from the denial of certiorari, expressed the view that Batson should apply to peremptory challenges based on a classification that is accorded heightened scrutiny under the Equal Protection Clause --"a category which presumably would include classifications based on religion." (Id. at pp. 1116-1117.)

4 The defendant in Eason complained that the prosecutor had stereotyped Jehovahís Witnesses in stating his understanding that Jehovahís Witnesses do not believe in the death penalty. The court rejected the argument: "What this statement does is briefly state the prosecutorís knowledge of a specific tenet of that religious faith. An attorney cannot be expected to ignore all outside knowledge and experience when exercising peremptory challenges." (445 S.E.2d atp.922.)

5 The California Supreme Court illustrated specific bias as follows: "For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle. In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of crime or has relatives in law enforcement, and on the part of another merely because his answers on voir dire evince an excessive respect for authority. Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge: either party may feel a mistrust of a jurorís objectivity on no more than the Ďsudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of anotherí (4 Blackstone, Commentaries *353)--upon entering the box the juror may have smiled at the defendant, for instance, or glared at him. Responsive to this reality, the law allows removal of a biased juror by a challenge for which no reason Ďneed be given,í i.e., publicly stated: in many instances the party either cannot establish his reason by normal methods of proof or cannot do so without causing embarrassment to the challenged venireman and resentment among the remaining jurors." (People v. Wheeler, supra, 22 Cal.3d at p. 275, footnote omitted.)

6 The jury was instructed as follows: "In this case, the Defendant has testified to certain matters. If you find that a Defendant failed to explain or deny evidence against him introduced by the prosecution, which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take the failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the Defendant are the more probable. [∂] The failure of a Defendant to deny or explain evidence against him does not by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime, and the guilt of the Defendant, beyond a reasonable doubt. [∂] If a Defendant does not have the knowledge that he would need to deny or explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence.