2nd Appellate District, Division 5

Brian M. Hoffstadt

Presiding Justice
California Court of Appeal

UCLA School of Law, 1995

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In the last five years, the California Legislature has increased judicial scrutiny of how prosecutors exercise peremptory strikes as well as how they charge and sentence criminal defendants. Its mechanism for doing so? Focusing less on a prosecutor's subjective motives and more on objective factors, such as what a reasonable person would think about those motives or the objective impact of the prosecutor's decisions.

In 2020, the Legislature enacted Assembly Bill No. 3070, which amended Code of Civil Procedure section 231.7 to significantly alter how peremptory challenges are adjudicated in civil and criminal cases.

Prior to AB 3070, peremptory challenges were governed by Batson v. Kentucky, 476 U.S. 79 (1986). Batson implements the constitutional guarantee of equal protection by prohibiting litigants from exercising peremptory challenges with a "racially discriminatory purpose." Id. at 86, 93. Batson uses a three-step process to suss out whether the party exercising the peremptory strike subjectively acted with a discriminatory purpose: Once the party challenging the strike raises an "inference of discriminatory purpose" (the first step), the striker must proffer a neutral reason for the strike (the second step), and the trial court must then evaluate whether striker's proffered reason is sincere and genuine and hence whether the challenger has shown purposeful discrimination (the third step). Id. at 94-98; Johnson v. California, 545 U.S. 162, 168, 170-171 (2005).

Unlike Batson, Code of Civil Procedure section 231.7 focuses on how an "objectively reasonable person" would view the likely reasons for a peremptory strike rather than what the striker's subjective reason(s) actually were. Civ. Proc. Code section 231.7(d)(2), (e). Unlike Batson, section 231.7's evaluative process entails two steps instead of three. Once a challenge is made, the striker must immediately articulate their reasons for the strike -- and what the reason is can trigger one of two avenues of analysis. If the reason is one of 13 statutorily enumerated reasons that are presumptively invalid (the first avenue), the striker must come forward with clear and convincing evidence that (1) "an objectively reasonable person would view the [proffered reason(s)] as unrelated to a prospective juror's [protected characteristic]," and (2) the proffered reason(s) "bear on the prospective juror's ability to be fair and impartial in the case." But if the striker's proffered reason(s) is not on that list or if the striker rebuts the presumption of invalidity (the second avenue), then the court must decide whether, in the totality of the circumstances, including seven statutorily enumerated factors, "there is a substantial likelihood that an objectively reasonable person would view [the protected characteristic] as a factor in the use of the peremptory challenge." Id. section 231.7(c), (d), (e); People v. Gonzalez, 104 Cal.App.5th 1, 16 (2024).

Also in 2020, the Legislature enacted Assembly Bill No. 2542, more commonly known as the Racial Justice Act (and expanded its scope in a 2022 amendment).

Prior to the Racial Justice Act, a criminal defendant seeking to invalidate a charging decision or sentence on the grounds it was the product of discrimination had to rely on the constitutional guarantee of equal protection, which, as noted above, requires a showing of discriminatory purpose or intent. Charging decisions made on the basis of race -- that is, a claim of selective prosecution -- are constitutionally invalid only upon proof of racially discriminatory intent, although that intent may be inferred from statistical disparity. United States v. Armstrong, 517 U.S. 456, 465 (1996). Likewise, differential treatment in sentencing based on race also required proof of discriminatory intent. E.g., United States v. Coleman, 24 F.3d 37, 39 (9th Cir. 1994).

The Racial Justice Act sweeps notably broader than the constitutional standard. Although the Act prohibits conduct that is undoubtedly the result of discriminatory intent, such as when a judge, attorney, law enforcement officer, expert witness, or juror involved in a case "exhibit[s] bias or animus" or "use[s] racially discriminatory language," Penal Code section 745(a)(1), (a)(2), the Act also reaches claims of disparity in charging and sentencing on the basis of race, ethnicity and national origin -- and, as to those claims, a showing of discriminatory intent is not required, id. section 745(a)(3), (a)(4). Indeed, disparity need not be established by statistical evidence, and statistical evidence need not "establish a significant difference." Id. section 745(h)(1).

This shift from a subjective intent-based standard to an objective standard as a means of eliminating discrimination is nothing new. Title VII of the Civil Rights Act has long prohibited the disparate impact of discriminatory practices -- whether or not accompanied or motivated by a discriminatory purpose. Griggs v. Duke Power Co., 401 U.S. 424, 429-430 (1971).

Using an objective standard has its advantages. Standards that require proof by the objecting party of a subjective intent to discriminate can under-protect, at least where the evil to be stopped is an unequal and discriminatory effect. Subjective intent-based standards also under-protect against implicit or unconscious bias, a type of bias of which a person is not consciously aware. The Legislature made clear that its intent with both Code of Civil Procedure section 231.7 and the Racial Justice Act was to combat the effect of these implicit or unconscious biases. See Civ. Proc. Code § 231.7(d)(2)(A); Penal Code § 745(h)(1).

But objective standards are not without their disadvantages.

Objective standards can under-protect as well. The Fourth Amendment is a prime example. That amendment chiefly regulates police conduct by examining whether law enforcement acted with probable cause or reasonable suspicion, and both of those standards are defined by what an objectively reasonable officer would believe -- rather than on the subjective motivations of the officers involved in the case at issue. Heien v. North Carolina, 574 U.S. 54, 60 (2014); District of Columbia v. Wesby, 583 U.S. 48, 54 n.2 (2018). But, as the United States Supreme Court held in Whren v. United States, 517 U.S. 806, 813 (1996), this means that the Fourth Amendment does not prohibit officers from pulling over a motorist because of their race as long as an objectively reasonable officer could have pulled them over for a broken taillight. (To be sure, equal protection prohibits this, but equal protection -- as noted above -- requires proof of discriminatory intent.)

Objective standards also give judges a freer hand. A standard looking to subjective intent is necessarily grounded in -- and limited by -- whatever facts are found in that case. However, an objectively reasonable person is a construct unmoored to the facts of any particular case, and more to the point, a construct defined and shaped by the courts. As a result, the courts decide what an objectively reasonable person would believe to be a biased peremptory strike or racially motivated charging or sentencing decision.

Both Code of Civil Procedure section 231.7 and the Racial Justice Act adopt objective standards, but they do not suffer from the first potential drawback of such standards. That is because they both supplement (rather than supplant) the extant equal protection-based protections that already guard against persons having improper subjective motivations when exercising peremptory challenges as well as making charging and sentencing decisions.

It is too early to tell whether the power these acts confer upon judges to decide what is objectively reasonable will prove an advantage or disadvantage. Both Code of Civil Procedure section 231.7 and the Racial Justice Act are relatively new. There are relatively few court decisions interpreting them. These acts are also relatively rare. Only a handful of states -- Connecticut, New Jersey, and Washington -- use an objective standard for evaluating peremptory challenges. Conn. Sup. Ct. R. section 5-12; N.J. Ct. R. 1:8-3A(a); Wash. Gen. R. 37. (Arizona is the only state to eliminate peremptory challenges entirely. Ariz. R. Crim. P. 18.5.) Racial Justice Acts are even rarer: North Carolina had one but repealed it, see State v. Ramseur, 843 S.E.2d 106 (N.C. 2020), and Kentucky's is far narrower, applying only to the decision whether to impose the death penalty, Ky. Rev. Stat. § 532.300. In this respect, California is at the tip of the proverbial spear and these laws, the canaries in the proverbial coal mine.

And California continues to be at the forefront. The Legislature this term is considering Assembly Bill No. 1071, which would further modify and, in many respects, further expand the Racial Justice Act.

It is thus too soon to know for sure how Code of Civil Procedure section 231.7 and the Racial Justice Act accentuate the positive aspects of objective standards, but other states are no doubt watching California.