Peremptory Strikes for Peremptory Strikes

Akopyan v. Superior Court, No. B304957 (D2d7 Aug. 24, 2020)

This case got reversed and remanded last fall with an order that the trial court conduct a full Batson inquiry over the Defendants having exercised peremptory strikes against a number of Hispanic jurors. When the case got back to the superior court, Plaintiff exercised the other kind of peremptory strike—against the trial judge under Code of Civil Procedure § 170.6. The court accepted the strike and Defendant took a writ, which the Court of Appeal grants.

The issue here is the application of § 170.6 on a remand. The statute does permit a new strike after a reversal and a remand for a new trial. But conducting the Batson inquiry ordered in the prior reversal is not a “new trial” in any sense of that term. And policy-wise, it’s also particularly important for the same judge to do the full Batson analysis since that judge oversaw the allegedly problematic voir dire in the first instance. Only if the trial judge finds a Batson violation will there be a new trial. So the Court of Appeal says the trial court should have put the § 170.6 on ice till the Batson inquiry is done and then granted it only if he ordered a new trial.

Writ granted.