Tuesday, April 1, 2014

Curing the Court's Error with a Peremptory Dooms Appeal for Cause

People v. Black, No. S206928 (Cal. Mar. 27, 2014)

Ok, it’s a criminal case. But it deals with jury selection, an issue common to both civil and criminal cases, and which is governed in both by the Code of Civil Procedure. A unanimous California Supreme Court holds that an erroneous denial of a challenge to a juror for cause is not reversible error, so long as no incompetent juror was actually empaneled. That’s the case even though the court’s error was cured when the defendant used a peremptory strike that he would have preferred to save for someone else.

Defendant was caught on video severely beating his pit bull, Blue, with a mop handle and an axe,* and charged with two counts of animal cruelty. During voir dire, one member of the venire said she was a devout Hindu who was taught never to harm animals. Although she said would try to be unbiased, she thought she probably couldn’t be in this case. During a discussion in chambers, a second venireman told the judge that he had already sided with the prosecution, based on his observations of the defendant’s attitude in court that morning. When the court declined to excuse these two jurors for cause, the defendant peremptorily struck them. Defendant’s use of these strikes prevented him from striking another juror his attorney found objectionable, but the court declined to give him an extra strike.  The jury so constituted convicted defendant on both counts.

Everyone essentially agrees that the trial court erred in failing to strike the first two jurors for cause and that the third juror, while objectionable to the defendant, was not removable for cause. The question is: is the trial court’s failure to give defendant an extra peremptory strike to make up for the ones he had to waste due to the Court error in denying his cause challenges reversible error. The court of appeal said it is not. Writing for a unanimous supreme court, Justice Chin agrees.

Under § 226 of the Code of Civil Procedure, all parties are entitled to unlimited for-cause challenges. Indeed, in a criminal case, the Sixth Amendment guarantees that right in a criminal case. See Ross v. Oklahoma, 487 U.S. 81, 89 (1988). But under § 231, peremptories are limited to ten per side in a non-capital criminal case, and the right to peremptories is not of constitutional magnitude. That said, in 1907, the California Supreme Court held that being obligated to accept an objectionable juror because the judge forced a defendant to waste peremptories on jurors would should have dismissed for cause is prejudicial and reversible error. See People v. Helm, 152 Cal. 532, 535 (1907). But subsequent cases have backtracked from this statement and California “case law now reflects that an erroneous denial of a challenge for cause to one juror is not reversible error when it deprives a defendant only of a peremptory challenge to another juror.” See, e.g., People v. Yeoman, 31 Cal. 4th 93 (2013). To the extent that dicta in some intervening cases suggests otherwise—see, e.g., People v. Bittaker, 48 Cal. 3d 1046, 1087 (1980)—the court expressly disapproves them here.

The court further distinguishes cases were the trial court refused to allow a party to exercise its full allotment of peremptories. Thus, it holds that “when a defendant receives the peremptory challenges allotted to him, but must use one or more of those challenges to cure an erroneous denial of a challenge for cause, he has received what was due him under state law and cannot object to the jury unless an incompetent juror sat in his case.”


Justice Liu joins the opinion but writes a separate concurrence that is joined by Justice Kennard. Although he agrees with the majority under the facts of this case, he notes that there could be circumstances where forcing a defendant to cure erroneous denials of his cause challenges with peremptories could be prejudicial. Suppose, for instance that the court repeatedly denied valid cause challenges by the defendant, but not the people, forcing the defendant to squander his peremptories, while leaving the prosecutor’s peremptory quiver full. That would work a substantial disadvantage to the defendant in jury selection, which, according the Justice Liu, would be reversible error. But here, the seating of a single objectionable juror was not enough of a substantial disadvantage to merit reversal.

*Mr. Brown, this is my pit bull, Pearl. Pit bulls are awesome dogs. Ironically, the United Kennel Club says they make bad guard dogs since they are extremely friendly, even with strangers.They also suffer disproportionately, like Blue, as victims of animal cruelty. Pearl and I join Blue in hoping that you never come back.

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