Filed 9/16/26
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re MONTE HANEY A170412
on Habeas Corpus.
(San Francisco City &
County
Super. Ct. No. 02052883)

I. INTRODUCTION
Monte Haney, currently incarcerated in prison, petitions
for a writ of habeas corpus under Penal Code section 1473,
subdivision (e) (section 1473(e)), contending his conviction is
unlawful under the Racial Justice Act of 2020 (Pen. Code, § 745
et seq.; RJA).1 He alleges his trial violated the RJA because the
prosecutor used peremptory challenges to strike all prospective
Black jurors from the jury and a white male juror exhibited racial
bias by exclaiming, prior to opening statements, “This guy is
going away.” Haney also contends he is entitled under the RJA
to discovery of his jury voir dire transcripts and certain statistical
evidence regarding potential racial disparities in convictions or
sentencing to help him make a prima facie case for relief.

* Pursuant to California Rules of Court, rules 8.1105(b) and

8.1110, this opinion is certified for publication with the exception
of parts II and III.
1 Undesignated statutory citations are to the Penal Code.

1
 We issued an order to show cause to respondent Secretary
of the California Department of Corrections and Rehabilitation
(CDCR), limited to four issues: (1) whether the racially
discriminatory use of peremptory challenges alone violates the
RJA; (2) whether RJA habeas petitioners under section 1473(e)
are entitled to discovery under section 745, subdivision (d)
(section 745(d)); (3) whether a habeas petition must allege a
prima facie case for relief before a court can consider a discovery
request under section 745(d); and (4) what prima facie standard
applies to RJA habeas petitions under section 1473(e).
While Haney’s petition was pending, the California
Supreme Court held in People v. Hazlett (2026) __ Cal.5th __,
2026 Cal. LEXIS 4660, *224, that the racially discriminatory use
of peremptory challenges does not on its own violate section 745.
As for the other three issues, shortly after the parties submitted
their briefing in response to this order to show cause, the
Legislature amended the RJA in several respects. (Stats. 2025,
ch. 721.) The RJA is now clear that habeas petitioners under
section 1473(e) are entitled to discovery under section 745(d);
petitioners may obtain discovery under section 745(d) before
filing a petition, much less stating a prima facie case for relief in
a petition; and the prima facie standard in section 745 applies to
habeas petitions under section 1473(e).
These conclusions suffice to discharge the order to show
cause and require us to deny with prejudice Haney’s claim based
on the racially discriminatory use of peremptory challenges. But
these conclusions do not otherwise address the merits of Haney’s

2
petition. As we will explain in a separate order (In re Robbins
(1998) 18 Cal.4th 770, 813–814, superseded by statute on other
grounds as stated in In re Friend (2021) 11 Cal.5th 720, 726), we
will deny Haney’s claims and discovery request on the merits but
without prejudice to him filing a more limited version of his
discovery request in the superior court.2
II. BACKGROUND
In 2005, a jury convicted Haney of aggravated mayhem
(§ 205), torture (§ 206), corporal injury to a cohabitant (§ 273.5,
subd. (a)), assault by means of force likely to produce great bodily
injury (former § 245, subd. (a)(1), as amended by Stats. 2004,
ch. 494, § 1), assault with a deadly weapon (§ 245, subd. (a)(1)),
and criminal threats (§ 422). (People v. Haney (Dec. 20, 2006,
A110037 [nonpub. opn.], review den. April 18, 2007.) It also
found true several great bodily injury and weapons
enhancements. (Ibid.) The conviction arose from an incident in
which Haney struck his girlfriend with a heavy object, stabbed
her several times, ripped out one of her eyes, and threatened to
kill her. (Ibid.) The trial court sentenced Haney to life in prison
with the possibility of parole plus seven years. (Ibid.) This court
modified the abstract of judgment with respect to one
enhancement and otherwise affirmed. (Ibid.) The California

2 We publish this introductory portion of the opinion to give

context to Justice Streeter’s separate concurrence. The
remainder of the court’s opinion does not meet the standards for
publication (California Rules of Court, rule 8.1105(c)), so it is
unpublished.

3
Supreme Court denied review. (People v. Haney (April 18, 2007)
S149779.)
Haney filed many habeas petitions in state court in
subsequent years, all of which were denied. Haney also filed a
habeas petition in federal court in 2007, alleging that the
prosecutor violated Batson v. Kentucky (1986) 476 U.S. 79
(Batson) by using his peremptory challenges to exclude all
African Americans from his jury.3 (Haney v. Adams (N.D.Cal.
May 1, 2009, No. C 07-4682 CRB (PR)) 2009 U.S. Dist. LEXIS
40856, *14.) The district court’s review of the voir dire
transcripts, which court records show the Attorney General had
filed under seal, revealed that the prosecutor had exercised nine
peremptory challenges and that defense counsel had not objected
to any of them. (Id. at *14–*15.) The transcripts did not reveal
the race of the jurors peremptorily challenged, but Haney alleged
that there had been two African American potential jurors and
that the prosecutor had excluded both of them. (Id. at *15.) The
district court then summarized the transcripts and concluded
that seven of the challenged potential jurors gave indications that
they might be biased against the prosecution and the remaining
two had race-neutral issues that made them poor candidates for

3 The September 12, 2024, request for judicial notice of

certain records from Haney’s federal habeas petition and the
California Supreme Court case In re Wilkins, S284457 is denied
because the documents are unnecessary to the resolution of this
matter. (County of San Diego v. State of California (2008) 164
Cal.App.4th 580, 613, fn. 29.) Haney’s request for judicial notice
of the records in his direct appeal is also denied for the same
reason.

4
sitting on a jury. (Id. at *17–*19.) The Ninth Circuit affirmed on
the basis that Haney could not raise a Batson claim because his
counsel had not objected on this basis during his trial. (Haney v.
Adams (9th Cir. 2011) 641 F.3d 1168, 1173.)
In March 2024, Haney filed a habeas petition in San
Francisco County Superior Court. Haney alleged violations of the
RJA based on the prosecutor’s exclusion of all African Americans
from his jury and an older, white male juror’s comment before
trial, “This guy is going away.” Together with his habeas
petition, Haney requested discovery under section 745(d) and the
appointment of counsel. His discovery request sought all
statistical evidence, aggregate data, and sentencing records of all
defendants who were not Black and who were convicted of
aggravated mayhem and torture. The San Francisco Superior
Court denied Haney’s habeas petition and requests for discovery
and counsel in March 2024.
In May 2024, Haney filed a habeas petition in this court.
In claim 1, Haney alleged an RJA violation based on the
prosecutor’s use of peremptory challenges to exclude all
prospective African American jurors from his jury. In claim 2, he
contended the superior court applied the wrong standard in
concluding his petition did not state a prima facie case for relief.
In claim 3, Haney alleged the superior court erred when it denied
his request for transcripts of his jury voir dire. And in claim 4,
Haney alleged an RJA violation based on the white juror’s
comment before trial, “This guy is going away.” Haney alleged
the juror would not have said this if Haney were white. Haney

5
also alleged the superior court’s denial of his request for jury voir
dire transcripts in 2007 interfered with his ability to raise this
claim on appeal.
Separate from these claims, Haney requested discovery
under section 745(d), asking for “all statistical evidence,
aggregate data and sentencing records in San Francisco County
of defendants who are not Black and were convicted of the same
thing as [him] and received a lesser sentence than [him].” Haney
also wanted to know if the prosecutor at his trial had a pattern of
excluding Black people from juries. He argued he had
established good cause for discovery because he is Black and the
prosecutor had used peremptory challenges to exclude all Black
people from his jury.
After informal briefing, this court issued an order to the
CDCR to show cause why the relief Haney requested should not
be granted. Following the approach of In re Robbins, supra, 18
Cal.4th at page 779, we limited the order to show cause to four
potentially dispositive legal questions and deferred consideration
of the merits of Haney’s petition: “1. Does the [RJA] cover a
claim in a habeas corpus petition based on a race-based
peremptory challenge? [¶] 2. For habeas petitioners asserting
RJA violations filed pursuant to Penal Code section 1473,
subdivision (e), do the discovery provisions in Penal Code section
745, subdivision (d) apply? [¶] 3. Must a habeas petitioner allege
a prima facie case for relief under the RJA before the trial court
can consider a discovery request under Penal Code section 745,
subdivision (d)? [¶] 4. What is the prima facie standard for

6
habeas petitions asserting RJA violations filed pursuant to Penal
Code section 1473, subdivision (e)? Please address whether and
how, if at all, this habeas standard is distinct from the one
applied to motions filed under Penal Code section 745 as
discussed in Finley v. Superior Court (2023) 95 Cal.App.5th 12,
22.” Haney, through appointed counsel, filed an amended
petition that incorporated and expanded upon his original
petition. The CDCR filed a return, and Haney filed a traverse.
After briefing on Haney’s amended petition was complete,
the Legislature enacted Assembly Bill No. 1071 (2025–2026 Reg.
Sess.), which amended sections 745 and 1473 in several respects.
(Stats. 2025, ch. 721.) At the court’s request, the parties
submitted supplemental briefing regarding the impact, if any, of
these changes.
III. DISCUSSION
A. Discriminatory Peremptory Challenges
The first issue identified in our order to show cause is
whether the RJA covers a claim in a habeas corpus petition
alleging a prosecutor made a race-based peremptory challenge.
We need not analyze the question in detail because our Supreme
Court spoke on the issue while Haney’s petition was pending. In
People v. Hazlett, supra, 2026 Cal. LEXIS 4660, at *224, the
California Supreme Court held, “[T]he RJA does not apply to the
questioning of or exercise of a peremptory challenge of a
prospective juror.” Accordingly, a “defendant’s claim regarding
the prosecutor’s questioning of a prospective juror and use of a
peremptory challenge, standing alone, is not cognizable under the

7
RJA.” (Ibid.) Because Haney’s petition alleges only that the
prosecutor’s use of peremptory challenges to dismiss all
prospective African American jurors from his jury violated the
RJA, without any additional allegations that the prosecutor
exhibited bias in some other fashion, we will issue a separate
order denying this claim with prejudice. (See In re Robbins,
supra, 18 Cal.4th at p. 814.)
B. Discovery Under Section 745(d) for Habeas Petitioners
Under Section 1473(e)
The second and third issues identified in our order to show
cause are whether the discovery provisions in section 745(d)
apply to habeas petitioners asserting RJA violations under
section 1473(e) and, if so, whether a court must find the
petitioner has alleged a prima facie case before it can consider
the petitioner’s discovery request under section 745(d).
From its first enactment until the end of 2025, section
745(d) stated, “A defendant may file a motion requesting
disclosure to the defense of all evidence relevant to a potential
violation of subdivision (a) in the possession or control of the
state. A motion filed under this section shall describe the type of
records or information the defendant seeks.” (Compare former
§ 745(d), as enacted by Stats. 2020, ch. 317, § 3.5, with former
§ 745(d), as amended by Stats. 2024, ch. 495, § 4.) The Courts of
Appeal were split as to whether this language allowed a
defendant whose conviction was final to file a postjudgment
motion for discovery under section 745 without filing a habeas
petition and demonstrating to a court that an order to show cause

8
should be issued because the petition set forth a prima facie case
for relief. (Compare People v. Serrano (2024) 106 Cal.App.5th
276, 282–283, review granted, Jan. 15, 2025, S288202, review
dism. Dec. 30, 2025, with In re Montgomery (2024) 104
Cal.App.5th 1062, 1071–1072, review granted Dec. 11, 2024,
S287339, review dism. Dec. 30, 2025.) In their briefing in
response to our order to show cause, Haney and the CDCR each
took one of the sides in this split.
Effective January 1, 2026, the Legislature amended the
RJA to resolve the dispute. The Legislature amended section
745(d) so that it now begins, “In any proceeding alleging a
violation of subdivision (a), a defendant or petitioner may file a
motion requesting disclosure to the defense of all evidence
relevant to a potential violation of subdivision (a) in the
possession or control of the state. A motion filed under this
section, a motion under paragraph (2) of subdivision (e) of Section
1473, or a motion under paragraph (3) of subdivision (a) of
Section 1473.7 shall describe the type of records or information
the defendant seeks.” (§ 745(d), as amended by Stats. 2025,
ch. 721, § 2, italics added.) The Legislature also added
subdivision (e)(2) to section 1473, which now states, “A petitioner,
or their counsel, may file a motion for relevant evidence under
subdivision (d) of Section 745 upon the prosecution of a petition
under this subdivision, or in preparation to file a petition.”
(§ 1473(e)(2), as amended by Stats. 2025, ch. 721, § 3, italics
added.) In an uncodified preamble, the Legislature stated its
intent that “individuals must be afforded access to a broad range

9
of relevant discovery to develop and support their potential RJA
claims,” so that they are not “left in the impossible position of
having their claims rejected for want of the very data they seek.”
(Stats. 2025, ch. 721, § 1(b).)4
After we requested supplemental briefing, the CDCR now
agrees with Haney that the amended statute makes clear that
habeas petitioners like him are entitled to discovery under
section 745(d) even before stating a prima facie case. We agree
as well. Section 1473(e)(2) makes discovery under section 745(d)
available in habeas proceedings under the RJA. It also makes
clear that a petitioner need not establish a prima facie case to
obtain discovery, or even have filed a petition at all, since it
allows a petitioner to move for discovery “upon the prosecution of
a petition under this subdivision, or in preparation to file a
petition.” (§ 1473(e)(2).)
C. Prime Facie Standard for Petitions Under Section
1473(e)
The fourth issue identified in our order to show cause is
what prima facie standard applies to habeas petitions under
section 1473(e) asserting RJA violations and whether that
standard is different from the one applied under section 745, as

4 To avoid a “chaptering out” problem, the Legislature

made the same changes to sections 745 and 1473 again in a
second bill that was enacted later in the session. (See In re A.N.
(2020) 9 Cal.5th 343, 356, fn. 5.) Because the Legislature stated
its purpose for the changes in the earlier bill, we focus on that
enactment.

10
discussed in Finley v. Superior Court (2023) 95 Cal.App.5th 12,
22 (Finley).
Section 745, subdivision (c) (section 745(c)) has, since its
enactment as part of the RJA, required a trial court to hold a
hearing on a motion raising an RJA claim if the defendant makes
“a prima facie showing of a violation” of section 745,
subdivision (a). (Compare § 745(c) with former § 745(c), as
enacted by Stats. 2020, ch. 317, § 3.5.) Until the end of 2025,
section 745, subdivision (h) and (h)(2) also established that “[a]s
used in this section,” meaning section 745, “ ‘[p]rima facie
showing’ means that the defendant produces facts that, if true,
establish that there is a substantial likelihood that a violation of
subdivision (a) occurred.” (Former § 745, subd. (h) & (h)(2), as
amended by Stats. 2024, ch. 495, § 4.) Meanwhile, the rule
generally applicable to habeas petitions was that a petition states
a prima facie case for relief if “ ‘it states facts that, if true, entitle
the petitioner to relief’ ” and is not procedurally barred. (Finley,
supra, 95 Cal.App.5th at p. 21.)
Finley, noting the difference between these standards,
applied the lower RJA standard to a pre-trial motion under
section 745, consistent with former section 745(h) and (h)(2).
(Finley, supra, 95 Cal.App.5th at p. 22.) This left open the
question of whether a petitioner alleging RJA claims via a habeas
petition under section 1473(e) had to meet the lower RJA
standard or the higher general habeas standard.
Haney argued in his amended petition that although Finley
distinguished between RJA motions and general habeas petitions

11
for the purposes of RJA motions, it never held that the general
habeas standard applied to RJA habeas petitions under section
1473(e). He therefore urged us to apply the lower RJA standard
to his petition. The CDCR, for its part, maintained that Finley’s
application of the lower section 745(h)(2) standard governed only
RJA motions under section 745 and did not apply to RJA habeas
petitions under section 1473(e).
As the parties now agree, the Legislature’s recent
amendments to the RJA resolve this dispute as well. Section
745(h) now states that its definition of prima facie showing
applies “[a]s used in this section and for the purposes of a petition
pursuant to subdivision (e) of Section 1473.” Section 1473(e)(1)
likewise now states, “Any and all definitions and legal thresholds
specified in Section 745 are controlling for purposes of claims
alleging a violation of subdivision (a) of Section 745 contained
within a habeas petition filed under this section.” There is no
longer room for any doubt that the Legislature intends the lower
RJA prima facie standard in section 745(h)(2) to apply to RJA
habeas petitions under section 1473(e).
IV. DISPOSITION
The order to show cause is discharged.
BROWN, P. J.

WE CONCUR:

STREETER, J.
GOLDMAN, J.

In re Haney (A170412)

12
STREETER, J., Concurring.
I concur in the opinion denying habeas relief, though I
must emphasize that I join Section I of the opinion reluctantly
and only for the reasons stated by our Supreme Court in People v.
Hazlett (Aug. 27, 2026, S126387) ___ Cal.5th ___ [2026 WL
2527137] (Hazlett). Hazlett holds that alleged racially
discriminatory use of peremptory challenges by prosecutors is not
cognizable under the Racial Justice Act (Pen. Code, § 745) (the
RJA),5 and unless the Legislature decides otherwise at some
future point, let there be no doubt—Hazlett definitively resolves
the identical issue presented here.
While I concur under compulsion of Hazlett, I write to
express agreement with Justice Evans’s Hazlett dissent. Nothing
I say here should be taken as a criticism of Chief Justice
Guerrero’s treatment of the cognizability of race-based
peremptory challenges under the RJA—she speaks for the court
on this issue with characteristic precision and balance—but
because there are some considerations in play here that neither
side argued in Hazlett (I know, because the same positions and
the same arguments were presented to us), I think it is
worthwhile to add some perspectives that may bear on whether
legislative clarification is in order.
I. The RJA: Purpose and Intent
Penal Code section 745 was not enacted in a vacuum. It
was passed on our Legislature’s determination that, following the

5 All further undesignated statutory citations are to the

Penal Code, absent a special definition.
1
lead of the United States Supreme Court, courts across the
country have largely turned a blind eye to the malign effects of
racial discrimination in criminal cases (see McCleskey v. Kemp
(1987) 481 U.S. 279 (McCleskey)) and have been ineffective in
dealing with racial bias in that context even when taking steps
designed to combat it (see Batson v. Kentucky (1986) 476 U.S. 79
(Batson)).
This line of criticism is not new. It was voiced by some high
court justices when McCleskey and Batson were decided (see
McCleskey, supra, 481 U.S. at pp. 320–345 (dis. opn. of Brennan,
J.); Batson, supra, 476 U.S. at pp. 102–108 (conc. opn. of
Marshall, J.)) and by another member of the high court more
recently (see Miller-El v. Dretke (2005) 545 U.S. 231, 266–273
(conc. opn. of Breyer, J.) (Miller-El)). The reservations stated by
Justice Marshall in his Batson concurrence—pinpointing the
difficulty of ferreting out unconscious bias in the use of
peremptory challenges—were notably prescient.
Taking a side in this ongoing debate decades later, our
Legislature made its intentions clear when the RJA was enacted,
repeatedly citing the views of Justices Brennan and Marshall and
stating that: (1) the RJA’s objective is to eradicate all forms of
racial bias6 in any criminal proceeding in the California courts, at

6 I refer to race bias and racial discrimination within the

meaning of the RJA, “in context, to refer not only to bias based on
race, but also to bias based on ethnicity or national origin,
consistent with the overarching prohibition in [section 745,]
subdivision (a).” (People v. Barrera (2026) 19 Cal.5th 919, 977,
fn. 9.)
2
every stage from the beginning to the end; (2) the RJA is
designed to eliminate any requirement that intentional
discrimination be shown in order to prove racially discriminatory
taint in criminal proceedings; (3) toward that end, the statute
seeks to address implicit bias as well as explicit bias and permits
statistical proof of bias based on disproportionate racial impact;
and (4) racially biased use of peremptory challenges in jury
selection, the problem flagged by Justice Marshall in Batson, is
one of the principal evils the RJA means to rectify. We need not
go to the legislative history to discover any of this. The
uncodified findings explain all of these points at length. (Assem.
Bill No. 2542 (2019–2020 Reg. Sess.) (Assembly Bill 2542), Stats.
2020, ch. 317, § 2, subds. (a)–(j); see Young v. Superior Court
(2022) 79 Cal.App.5th 138, 149–150 (Young).)
After five years of experience under the RJA, the
Legislature has signaled its dissatisfaction with perceived
judicial reticence to apply the RJA in full accordance with
statutory intent. Another set of uncodified legislative findings,
passed in 2025 in connection with certain RJA amendments,
cited various examples of courts “misconstru[ing] the statute to
apply procedural barriers or otherwise impose impediments to
relief, discordant with the legislative intent of the RJA.” (Assem.
Bill No. 1071 (2025–2026 Reg. Sess.) (Assembly Bill 1071),
Stats. 2025, ch. 721, § 1, subd. (a).) These recent legislative
findings also state the Legislature’s intention that, “in applying
the RJA, courts consider evidence of racism’s origins, insidious

3
shifts, and current manifestations.” (Stats. 2025, ch. 721, § 1,
subd. (d).)
II. The Attorney General’s Position in the Case
Against this backdrop, the Attorney General contends that
because a racially discriminatory peremptory challenge in jury
selection is directed “towards” a prospective juror, instead of
“towards the defendant,” such a challenge does not constitute an
“exhibit[ion]” of racial bias within the meaning of the RJA. To
“confirm” this reading of the statute but without identifying any
ambiguity in its words, the Attorney General moves quickly to
the RJA’s legislative history.
Here, the Attorney General relies on unenacted
contingency language in Assembly Bill 2542, the bill that became
the RJA, specifically authorizing relief if “[r]ace, ethnicity, or
national origin was a factor in the exercise of peremptory
challenges” (Assem. Bill 2542, § 3). This contingency language
was designed to go into effect only upon the failure of Assembly
Bill No. 3070 (2019–2020 Reg. Sess.) (Assembly Bill 3070), a
concurrent bill that eventually became Code of Civil Procedure
section 231.7.7 Both the RJA and Code of Civil Procedure section
231.7 were enacted, however, so in the end the specific reference
to race-based use of peremptory strikes was not included in the
enacted text. From this, the Attorney General invites us to infer

7 The Legislature enacted Code of Civil Procedure section

231.7 in August 2020 (Assem. Bill 3070; Stats. 2020, ch. 318, § 2),
the Governor signed it in September 2020, and it went into effect
January 1, 2021.
4
a legislative intent to address the topic under Code of Civil
Procedure section 231.7 instead of the RJA.
Recognizing that the Attorney General’s position is now the
law, I believe there are reasons to believe the Legislature may
take a different view of its own intent. While I tend to agree with
Justice Evans’s reading of the statutory drafting history, I would
add the observation that Assembly Bill 3070 covered both civil as
well as criminal cases and thus, at least in theory, faced more
potential opposition than Assembly Bill 2542 did because of its
impact on civil practice. Given this fundamental difference in
statutory coverage, the reality of the time these bills emerged is
that Assembly Bill 2542 probably had greater political
momentum in the wake of the George Floyd killing, which
occurred in late May 2020. That, I think, has some bearing on
any reading of what the unenacted Assembly Bill 2542
contingency language meant.
Anticipating the potential failure of Assembly Bill 3070
under these unique conditions, the language may well have been
proposed to head off any argument that the rejection of Assembly
Bill 3070 demonstrated a categorical legislative intent not to
address racially discriminatory use of peremptory challenges in
either statute. It seems to me that is and has always been a
weak argument, given the comprehensive scope of the RJA, but
under circumstances where Assembly Bill 3070 failed, it may well
have been a matter of legitimate concern. Viewed in this light,
the true statutory intent here—simply to emphasize that race-
based peremptory challenges would remain covered by the RJA

5
even if Assembly Bill 3070 failed8—may be exactly contrary to
the intent urged by the Attorney General.
Now, can we say for sure whether the legislative history
reveals a clear intent, one way or the other, on the issue of
whether the RJA covers race-based peremptory challenges?
Candidly, I think not. What we can say for sure, though, is that
the toggling of different versions of the contingency language in
early drafts of Assembly Bill 2542 (i.e., prospective and
retroactive [option one] versus retroactive only [option two]) does
not speak directly to the essential question here—whether, in
order for the RJA to cover peremptory challenges in the first
place, specific language addressing this issue was necessary at
all.
For those who ultimately voted in favor of both bills—the
members of the Legislature whose views obviously matter the
most here—the distinction drawn in early drafts between option
one and option two likely did not matter since both enactments
were prospective upon the final vote. The fact that retroactivity
was a nonissue when the final vote took place goes unmentioned
by the Attorney General. The RJA was not made retroactive
until 2022, upon passage of a subsequent amendment. (Stats.
2022, ch. 739, § 2.) The Attorney General’s silence about this
detail in the legislative history obscures the fact that two

8 It is not unusual in drafting statutes that the Legislature

may add language for emphasis, rather than to add to a statute’s
substantive scope. (Farmers Ins. Exchange v. Superior Court
(2006) 137 Cal.App.4th 842, 858; People v. Olay (2023) 98
Cal.App.5th 60, 66, fn. 7.)
6
objectives likely lay behind the early draft unenacted contingency
language, something that is easy to miss when we judges try to
attribute a single “intent” to statutory text, whether proposed or
enacted. One of those objectives was moot at the time of the final
vote, and the other was addressed two years later when the
Legislature in effect enacted option one (the prospective and
retroactive version) under circumstances when it was no longer
necessary to say anything about the contingency scenario where
Assembly Bill 3070 failed.
The bottom line for me in assessing the Attorney General’s
legislative history argument is this: Rather than piece together
statutory intent from fragments in the drafting history, I think it
is better to avoid trying to divine the meaning of proposed
contingency language that never went into effect (Medical Board
v. Superior Court (2003) 111 Cal.App.4th 163, 182 [“Because the
legislative history is itself ambiguous, it is not useful in
construing” disputed meaning of statutory language]; see J.A.
Jones Construction Co. v. Superior Court (1994) 27 Cal.App.4th
1568, 1579), especially since, by taking up the Attorney General’s
invitation to do so, we are adopting a construction of the RJA
that is at odds with the uncodified legislative findings. Those
findings, after all, were voted on and passed upon a final vote of
the entire Legislature. The early drafts and associated
committee commentary were not.
III. Race-Based Use of Peremptory Challenges in
Historical Context
The weakest link in the Attorney General’s argument is his
failure to identify an ambiguity in the statutory language that

7
justifies looking beyond the text, structure and context of the
statutory words before leaping into legislative history. Read in
context—and here I mean the full historical context supplied by
the background law in this area, not just the narrow confines we
see in the legislative drafting process—I find no ambiguity in the
phrase “towards the defendant,” and no need to try to determine
what the unenacted Assembly Bill 2542 contingency language
might tell us about the substantive scope of the RJA.
Responding to the Legislature’s reminder that courts
should account for the full historical backdrop when interpreting
and applying the RJA (Assembly Bill 1071, ch. 721, § 1,
subd. (d)), I review this history in depth below and distill some
specific lessons from it in part III.D, post. To cut to the heart of
the matter upfront, my short answer to the Attorney General’s
textual analysis is that, if we trace the full evolution of the law
of jury discrimination, the injury caused by race-based use of
peremptory challenges is the deprivation of the defendant’s right
to a fair and impartial jury under People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler). Taking that as the background law the
Legislature understood to be applicable when it passed the RJA,
I conclude that we are dealing with conduct directed “towards”
the defendant.
Justice Evans’s citation to Strauder v. West Virginia (1880)
100 U.S. 303 (Strauder)— the beginning of a long road that led
to Wheeler—shows that she appreciates the importance of this
history, but I think there is more to say on the topic. To begin
with, and at the most general level, most scholars of the history

8
of racism in the United States, whether writing as generalists 9
or as legal academics concerned specifically with the evolution of
the law in this area,10 cover the topic of race discrimination in
jury service, and many place it at the center of their narratives
along with discrimination in voting rights. With this in mind,
one general observation may be made at the outset: The
centrality of racial exclusion in jury selection, by its sheer
prominence in these scholarly works, tends to undercut any
suggestion that, based on the ambiguous circumstances
surrounding the unenacted contingency language referring to
peremptory challenges in Assembly Bill 2542, the Legislature
chose to drop the topic of race-based peremptory challenges from
the RJA altogether. Indeed, that conclusion seems almost
stunning in historical context, given the Legislature’s stated
goals.
A. The Strauder Trilogy
The history of race-based use of peremptory challenges,
which is part of the broader history of race discrimination in jury

9 See Du Bois, Black Reconstruction in America 1860–1880

(1935, 2007 ed.) pages 802, 811, 1159, 1450, 1517, 1760; Myrdal,
An American Dilemma (1944) volume II, pages 139–141, 162;
Woodward, The Strange Career of Jim Crow (1955, 2002 ed.)
pages 19–20.

10 See Kennedy, Race, Crime, and the Law (1997) pages

169–255 (Race, Crime, and the Law); Klarman, From Jim Crow
to Civil Rights: The Supreme Court and the Struggle for Racial
Equality (2004) pages 39–43.
9
selection in the United States, is vast.11 The conventional
starting point is Strauder, one of three high court decisions
addressing race discrimination in jury selection in 1880 and
1881. As pertinent here, the other two are Virginia v. Rives
(1880) 100 U.S. 313 (Rives) and Neal v. Delaware (1881) 103 U.S.
370 (Neal).)12 Together, these three cases enunciate a set of
foundational principles that have marked out the boundaries of
the law governing racial discrimination in jury selection ever
since.
The leading case in the trilogy is Strauder itself, the first
race discrimination case to be decided by the high court under
the then recently adopted Fourteenth Amendment. Upholding a
facial challenge to a West Virginia statute that limited jury

11 See Van Dyke, Jury Selection Procedures: Our
Uncertain Commitment to Representative Panels (1977) pages
177–193 (Jury Selection Procedures). This treatise by Professor
Van Dyke, an influential scholar of jury selection practices in the
1970s, was cited repeatedly by our Supreme Court in Wheeler,
supra, 22 Cal.3d at pages 258, 266, footnote 5; id. at page 273,
footnotes 11, 13; id. at page 280, footnote 25. See also Race,
Crime, and the Law, supra, pages 169–255 (devoting three of ten
chapters and nearly a quarter of his 513-page treatise to the topic
of “Race and the Composition of Juries”).

12 A fourth case in this series is Ex parte Virginia (1880)

100 U.S. 339, which upheld the constitutionality of a provision in
the Civil Rights Act of 1875 criminalizing racial discrimination in
jury selection. But we may set that case aside. In the nearly 150
years since Ex parte Virgina came down, no subsequent
prosecution has been brought under it, at least in the reported
cases. (Schmidt, Juries, Jurisdiction, and Race Discrimination:
The Lost Promise of Strauder v. West Virginia (1983) 61 Tex.
L.Rev. 1401, 1475 (Lost Promise of Strauder).)
10
service to adult white men,13 Strauder has been cited in modern
equal protection cases ranging from Brown v. Board of
Education (1954) 347 U.S. 483, 490, fn. 5, to McCleskey, supra,
481 U.S. at p. 310, to Students for Fair Admissions v. President
and Fellows of Harvard College (2023) 600 U.S. 181, 202
(Students for Fair Admissions), and is generally recognized to be
the fountainhead of the high court’s Batson jurisprudence (see
Flowers v. Mississippi (2019) 588 U.S. 284, 294; Miller-El, supra,
545 U.S. at p. 238; Georgia v. McCollum (1992) 505 U.S. 42, 46;
Batson, supra, 476 U.S. at p. 85).
The constitutional analysis in Strauder began with a
general discussion of the purpose of all three Civil War

13 This statute was a carry-over from the pre-Civil War

norm in all states. From the founding of the nation to the Civil
War, limiting jury service to white male property owners was the
rule. (See Waldrep, Jury Discrimination: The Supreme Court,
Public Opinion, and a Grassroots Fight for Racial Equality in
Mississippi (2010 ed.) (Grassroots Fight for Racial Equality in
Mississippi), Appendices 1–3 [compiling constitutional provisions
and statutes from all states in antebellum America limiting jury
service to adult white males].) After the Civil War, demands for
racial equality in jury service, just as much as racial equality in
voting, were central to the thinking of the framers of the
Fourteenth Amendment. (See Forman, Jr., Juries and Race in
the Nineteenth Century (2004) 113 Yale L.J. 895, 898–902; id. at
p. 895 [quoting Senator Charles Sumner, one of the framers of
the Fourteenth Amendment, in an 1872 speech before Congress,
“How can justice be administered throughout States thronging
with colored fellow-citizens unless you have them on the
juries?”].)

11
amendments.14 Some of the language in Strauder spoke in the
register of the Thirteenth Amendment,15 but there is no question
that the high court ultimately resolved the case on Fourteenth
Amendment equal protection grounds. To frame its equal
protection analysis, the high court placed great stress on the
state constitutional right every criminal defendant in West
Virginia had to a jury trial. “The right to a trial by jury [of one’s
peers] is guaranteed to every citizen of West Virginia by the
Constitution of that State, and . . . is a very essential part of the
protection such a mode of trial is intended to secure[,]” the high
court points out. (Strauder, supra, 100 U.S. at p. 308.)16

14 Strauder, supra, 100 U.S. at p. 306 (“The true spirit and

meaning of the amendments . . . cannot be understood without
keeping in view the history of the times when they were adopted,
and the general objects they plainly sought to accomplish.”); id. at
pp. 305–306.

15 Strauder, supra, 100 U.S. at p. 307, quoting Slaughter-

House Cases (1873) 83 U.S. 36, 71 (“ ‘No one can fail to be
impressed with the one pervading purpose found in all the
amendments, lying at the foundation of each, and without which
none of them would have been suggested–we mean the freedom of
the slave race, the security and firm establishment of that
freedom, and the protection of the newly made freeman and
citizen from the oppressions of those who had formerly exercised
unlimited dominion over them.’ ”).

16 At the time, the right to jury trial was not among the

narrow set of rights deemed so “fundamental” as to be binding on
the states under the Fourteenth Amendment’s privileges and
immunities clause. (See Slaughter-House Cases, supra, 83 U.S.
at pp. 75–80.)
12
 The West Virgina Supreme Court held that “the powers of
the State Legislatures over the civil rights, privileges, duties, or
immunities of any and all of its citizens, whether negroes or
whites, remain as they always were” and, despite the passage of
the Fourteenth Amendment, “the negro has no more right to
insist upon” equal treatment in state court proceedings “than a
Chinaman or a woman.” (State v. Strauder (1877) 11 W.Va. 745,
815, 817.) Unsurprisingly, the high court reversed. 17 Having
extended to all West Virginians a state law right to a jury of
one’s peers, the high court held that West Virginia was obliged
to extend the same right to all citizens with an even hand,
regardless of color. Since the racially unequal treatment in
Strauder was codified by statute, and since no white defendant
ever faced the prospect of trial before a jury bereft of white
jurors, the court concluded that “compelling a colored man to
submit to a trial for his life by a jury drawn from a panel from
which the State has expressly excluded every man of his race,
because of color alone[,]” denies him equal protection of the law.
(Strauder, supra, 100 U.S. at p. 309.)
Rives, supra, 100 U.S. 313, was the first of a long series of
cases limiting the scope of Strauder’s equal protection holding.
The primary focus of the Rives opinion was procedural. Under

17 The West Virginia Supreme Court took a narrow view of

the Fourteenth Amendment, reading it as applicable only to the
question of the federal citizenship rights of the formerly enslaved.
(State v. Strauder, supra, 11 W.Va. at pp. 803–805.) The court
cited and relied on Dred Scott v. Sandford (1857) 60 U.S. 393 as if
it were still good law except on the citizenship issue. (State v.
Strauder, at pp. 803–804.)
13
the holding in Rives, the high court recognized a right to federal
removal by a defendant objecting to his jury on Strauder
grounds,18 but only prior to trial and only if he showed a
constitutional violation had already occurred. (Rives, at pp. 320–
323.) That holding required defendants with Strauder claims to
suffer conviction first and take their chances that state courts
would fairly enforce their Strauder rights in the jury selection
process at trial, subject to direct review on appeal, ultimately in
the high court. (Rives, at pp. 320–323.) This left Strauder
enforcement almost entirely in the hands of state trial courts,
where all-white juries had been the norm since the nation’s
founding.19 The theoretical possibility that jury selection rules
might be applied at trial in violation of the equal protection
clause was not enough to justify removal to federal court.

18 At the time, federal jury selection rules followed a

Reconstruction-era federal policy of allowing racially mixed
juries, which was a sharp departure from the pre-Civil War norm
nationwide. (Juries and Race, supra, 113 Yale L.J. at pp. 924–
926.) The new policy, codified in the Civil Rights Act of 1875 (the
statute whose validity was upheld in Ex parte Virginia, supra,
100 U.S. 339), was first instituted by military order in the
occupied South during the early years of Reconstruction. (See
Grassroots Fight for Racial Equality in Mississippi, supra, at pp.
152–156, Table 4.1.) Professor Forman has pointed out that this
policy was designed to address, and for a time had a salutary
effect on, the refusal of all white grand juries in the South to
indict white perpetrators of Ku Klux Klan violence against
formerly enslaved persons. (Juries and Race, at pp. 914–920.)

19 Lost Promise of Strauder, supra, 61 Tex. L.Rev. at page

1440.
14
 But the Rives opinion also placed an important substantive
limit on Strauder’s equal protection holding. The Rives
defendants contended that they were affirmatively entitled to a
racially mixed jury comprised of one-third African Americans.
Rejecting this contention, the high court said what a defendant
has is “a right to . . . the selection of jurors to pass upon his life,
liberty, or property” where “there shall be no exclusion of his
race, and no discrimination against them because of their color.
But this is a different thing from the right which it is asserted
was denied to [them] by the State court, viz. a right to have the
jury composed in part of colored men. A mixed jury in a
particular case is not essential to the equal protection of the
laws, and . . . is not, therefore, guaranteed by the Fourteenth
Amendment.” (Rives, supra, 100 U.S. at pp. 322–323.)
The distinction Rives drew between a right to prevent race-
based exclusion of prospective jurors from the jury selection
process and a right to demand inclusion of particular jurors on a
particular jury became a cornerstone of the governing law in this
area. (See Swain v. Alabama (1965) 380 U.S. 202, 208 (Swain)
[“a defendant in a criminal case is not constitutionally entitled to
demand a proportionate number of his race on the jury which
tries him nor on the venire or jury roll from which petit jurors
are drawn”], overruled on other grounds, Batson, 476 U.S. at
p. 100, fn. 25.)20 What that meant, as a practical matter, was

20 See also Gibson v. Mississippi (1896) 162 U.S. 565, 580

(Gibson); Thomas v. Texas (1909) 212 U.S. 278, 282 (Thomas);
Akins v. Texas (1945) 325 U.S. 398, 403 (Akins); Cassell v. Texas
(1950) 339 U.S. 282, 287; cf. Wheeler, supra, 22 Cal.3d at
15
that, at least until Batson, the pivotal issue in applying Strauder
was whether members of the defendant’s race were given an
opportunity to serve—specifically, the focus was the composition
of the jury venire and the procedures used to define eligibility—
not on who was actually chosen to serve in a particular case at
trial.
Neal, the first case to begin implementing the legal
principles enunciated in Strauder and Rives, set the evidentiary
bar high. The Strauder court had observed that states are free
to “confine the selection [of jurors] to males, to freeholders, to
citizens, to persons within certain ages, or to persons having
educational qualifications.” (Strauder, supra, 100 U.S. at
p. 310.) Neal presented the question whether, in the absence of
a legislatively codified policy of racial discrimination, an equal
protection claim may be sustained where jury qualification rules,
as administered, had a racially discriminatory effect.
The Delaware Supreme Court said no, even though on the
record presented there, no African American had served on a
grand or petit jury in Delaware for 20 years and the state
admitted an official policy of race discrimination. According to
the Chief Justice of the Delaware Supreme Court, the fact “ ‘that
none but white men were selected is in nowise remarkable in
view of the fact—too notorious to be ignored—that the great
body of black men residing in this State are utterly unqualified

page 277 (“no litigant has the right to a jury that mirrors the
demographic composition of the population, or necessarily
includes members of his own group, or indeed is composed of any
particular individuals”).
16
by want of intelligence, experience, or moral integrity to sit on
juries.’ ” (Neal, supra, 103 U.S. at pp. 393–394.) The high court
reversed, but on a ground so narrow—the official admission of
racially discriminatory purpose—it rendered Strauder toothless
for decades. With the exception of Neal, no Strauder claim
attacking alleged administrative discrimination in jury selection
succeeded on the merits in the high court for more than fifty
years.21
The main stumbling block was discriminatory intent.
Under a line of cases decided in the late 19th and 20th centuries,
the high court held that the defendant bore the burden of
presenting evidence of discriminatory intent22; great deference—
indeed, conclusive effect—was given to state trial court
findings23; the officials responsible for compiling jury rolls were
presumed to be acting without discriminatory intent in
compliance with federal law24; in the absence of “competent
proof” offered on personal knowledge, a verified petition alleging
statistical disparities in the available African Americans
qualified to serve on juries versus the number called
(consistently zero) was insufficient where the state denied any

21 Lost Promise of Strauder, supra, 61 Tex. L.Rev. at page

1458.

22 Martin v. Texas (1906) 200 U.S. 316, 319.

23 Thomas, supra, 212 U.S. at p. 281.

24 Tarrance v. Florida (1903) 188 U.S. 519; Thomas, supra,

212 U.S. at p. 282.

17
discriminatory intent25; access to evidence—such as requests for
subpoenas to elicit testimony from jury commissioners—was
frequently denied in the face of the presumption of regularity of
official conduct26; and yet Strauder motions were held to be
properly denied if not supported by evidence.27 There were a few
exceptions, in cases where trial courts simply refused to hear
Strauder motions supported by competent evidence and
presented in proper form, but these cases involved the procedure
followed, not the merits of claims.28
The tool of choice for racial discrimination by jury
commissioners during this era—voting eligibility criteria used as
a proxy for jury service qualifications, as those criteria were
applied by jury commissioners in compiling the “jury roll” (i.e.,
the venire)—bore the signature of Jim Crow. Because these
criteria, typically some formulation such as “honesty, good moral

25 Charley Smith v. Mississippi (1896) 162 U.S. 592, 601–

602; Brownfield v. South Carolina (1903) 189 U.S. 426, 428.

26 Gibson, supra, 162 U.S. at p. 584.

27 If there is a familiar ring to this—an impediment to

evidence gathering created by a presumption of regularity in
official action, together with strict enforcement of the burden of
proving intent to discriminate—it is because, procedurally, that
was essentially the state of equal protection law in 2020 as
applied to claims of race discrimination in the enforcement of
criminal law, at least until the RJA changed things in California
by statute. (See Young, supra, 79 Cal.App.5th at pp. 162–163
[discussing United States v. Armstrong (1996) 517 U.S. 456].)

28 Carter v. Texas (1900) 177 U.S. 442; Rogers v. Alabama

(1904) 192 U.S. 226.
18
character and intelligence” in the eyes of jury commissioners,
were tied to voting eligibility, racially discriminatory voter
registration laws served the dual purpose of excluding African
Americans from the jury box and the voting booth.
The validity of jury discrimination linked to voting
discrimination came before the high court in Williams v.
Mississippi (1898) 170 U.S. 213 (Williams), which was decided
not long after Plessy v. Ferguson (1896) 163 U.S. 537, at the
height of the Jim Crow era. In Williams, an African American
criminal defendant, citing Yick Wo v. Hopkins (1886) 118 U.S.
356 (Yick Wo), argued that the unfettered discretion conferred
upon administrative officers under Mississippi law to bar
African Americans from registering to vote using literacy tests,
and in turn to sit on juries, violated the equal protection clause
under Strauder. Breezily dismissing this contention, the sum
total of the high court’s reasoning in Williams was that “nothing
tangible can be deduced from” Mississippi’s restriction on voting.
(Williams, supra, 170 U.S. at p. 222.)
According to the Willams court, “[i]f weakness were to be
taken advantage of, . . . the means of it were the alleged
characteristics of the negro race, not the administration of the
law by officers of the state.” (Williams, supra, 170 U.S. at
p. 222.) The principle of Yick Wo, although anticipated under
the logic in Neal as a possible limit on racial discrimination in
jury service carried out by administrative means, did not apply.
The challenged jury service qualification criteria in Mississippi,
said the high court, “do not on their face discriminate between

19
the races.” (Williams, at p. 224.) “[I]t has not been shown that
their actual administration was evil; only that evil was possible
under them.” (Id. at p. 225.)
Compounding the racial barriers to African American jury
service imposed by the doctrine of intent to discriminate when
applied together with subjective qualification standards, was the
practical reality that, in the late 19th and early 20th centuries,
many criminal defendants were unrepresented or poorly
represented.29 Lack of access to counsel meant that these
defendants were incapable of navigating the complex thicket of
pretrial procedural timeliness and forfeiture rules that state
trial courts began to apply to Strauder claims after Rives. For
those who were able to find counsel, defense lawyers were often
unwilling to raise these claims.30 And unlike today, forfeitures

29 See, e.g., Neal, supra, 103 U.S. at page 396 (prisoner

“whose life was at stake, and who was too poor to employ counsel
of his own selection”); Lost Promise of Strauder, supra, 61 Tex.
L.Rev. at page 1482 (“Strauder’s nondiscrimination principle was
vitiated by the state courts’ concerted refusal to undertake fair
inquiry into the methods of jury selection, by the state jury
commissioners’ capacity to hide systematic racial exclusion
behind ‘general asseverations,’ and by the ineptitude and
passivity of the mostly white counsel for black defendants”).

30 Many decades later, the problem persisted. (See, e.g.,
United States ex rel. Goldsby v. Harpole (5th Cir. 1959) 263 F.2d
71, 82 [“As Judges of a Circuit comprising six states of the deep
South, we think that it is our duty to take judicial notice that
lawyers residing in many southern jurisdictions rarely, almost to
the point of never, raise the issue of systematic exclusion of
Negroes from juries.”]; id. at p. 82 [“[T]he very prejudice which
causes the dominant race to exclude members of what it may
assume to be an inferior race from jury service operates with
20
due to ineffective lawyering could not be rectified by
postconviction review, since habeas corpus review as we know it
today did not exist.31
B. Paradigm Shift: Norris v. Alabama
A paradigm shift came in Norris v. Alabama (1935) 294
U.S. 587 (Norris). Norris was one of two high court cases, both
known today by the name of the rural town where they were
first tried, Scottsboro, in Jackson County, Alabama. The
Scottsboro cases arose out of the prosecution of nine young
African American defendants ranging in age from 13 to 20 for
the alleged rape of two white girls in 1931 while they were all
riding from town to town, “hobo” style, in an open railway car.
(Powell v. Alabama (1932) 287 U.S. 45, 50–52 (Powell).)
The defendants were tried in multiple groups under
circumstances of mob hostility outside the courthouse. (Powell,
supra, 287 U.S. at p. 50.) Although the judge appointed “all of
the members of the bar” of Scottsboro to act for the defendants at
arraignment (id. at p. 53), no one entered an appearance for
them when the trials began five days later (id. at p. 56). The
trials lasted a day each (id. at p. 50), and the juries returned

multiplied intensity against one who resists such exclusion. . . .
[¶] . . . Such courageous and unselfish lawyers as find it essential
for their clients’ protection to fight against the systematic
exclusion of Negroes from juries sometimes do so at the risk of
personal sacrifice which may extend to loss of practice and social
ostracism.”].)

31 Andrews v. Swartz (1895) 156 U.S. 272; In re Wood

(1891) 140 U.S. 278, 279.
21
guilty verdicts and imposed the death sentence with all
convictions (ibid.). The high court reversed the convictions in
Powell,32 a landmark in its own right because it established the
right of indigent criminal defendants facing capital charges to
appointment of counsel of their choice. (Id. at p. 65.)
Norris arose out of one of the retrials on remand after a
change of venue to Morgan County, Alabama. Despite the fact
that the victims had recanted by the time of the second trial,
defendant Norris was convicted and sentenced to a life term.
Relying on Strauder, and represented by counsel at that point,
Norris claimed error in the denial of his motion to quash the jury
venire in light of “long-continued, systematic, and arbitrary
exclusion of qualified negro citizens from service on juries, solely
because of their race and color.” (Norris, supra, 294 U.S. at
p. 588.)
The high court upheld the claim, and reversed. (Norris,
supra, 294 U.S. at p. 588.) Without mentioning its prior
precedent treating state court fact finding as conclusive, the
court independently reviewed the record33 and fashioned a

32 Powell laid the groundwork for Gideon v. Wainwright

(1963) 372 U.S. 335, approximately three decades later.

33 See Norris, supra, 294 U.S. at pages 589–590 (“The

question is of the application of this established principle to the
facts disclosed by the record. That the question is one of fact does
not relieve us of the duty to determine whether in truth a federal
right has been denied. . . . If this requires an examination of
evidence, that examination must be made. Otherwise, review by
this Court would fail of its purpose in safeguarding constitutional
rights.”). Today, we would term this de novo review of a mixed
22
burden-shifting framework looking first to whether the
defendant’s evidentiary showing made out a prima facie case of
systematic racial exclusion in jury service, and then, if a prima
facie case was established, to whether the state offered a
satisfactory rebuttal. (Id. at pp. 591–598.) After finding
adequate prima facie proof as to the composition of both the
grand jury in Jackson County and the trial jury in Morgan
County, the Norris court held that Alabama failed to offer a
persuasive rebuttal. (Ibid.) It rejected a trial court finding to
the contrary without deference. (Ibid.)
Norris established a new framework of analysis under
which a statistical showing of “systematic exclusion” of African
Americans from jury service over many years was enough to
establish a prima facie case of prohibited discrimination. In a
series of cases in the late 1930s, the 1940s, and the 1950s, many
of them involving African American men who were sentenced to
death in rape prosecutions, as in Powell and Norris, the requisite
intent to discriminate was inferred from circumstantial pattern
and practice evidence based on statistics comparing the
population of African Americans of adult age to those who were
chosen to serve.34

question of law and fact in circumstances where the question
under review implicates a matter of federal constitutional right.
After Batson, the high court eventually returned to a standard of
deferential review. (See Hernandez v. New York (1991) 500 U.S.
352.)

34 See Eubanks v. Louisiana (1958) 356 U.S. 584; Cassell v.

Texas, supra, 339 U.S. 282; Avery v. Georgia (1953) 345 U.S. 559
23
 For three decades after Norris, the high court routinely
relied on the systematic exclusion test to invalidate methods of
selecting jury venires, drawing no distinction between grand or
petit jury service. These cases commonly involved selection
methods that relied on disguised modes of discrimination hidden
behind the exercise of administrative discretion.35 As the high
court stated in Smith, supra, 311 U.S. 128, a jury selection plan
may be racially neutral on its face and thus capable of
nondiscriminatory application, but would not survive scrutiny if,
“by reason of the wide discretion permissible in the various steps
of the plan, it is equally capable of being applied in such a

(Avery); Patton v. Mississippi (1947) 332 U.S. 463, 467; Smith v.
Texas (1940) 311 U.S. 128 (Smith); Pierre v. Louisiana (1939) 306
U.S. 354; Hill v. Texas (1942) 316 U.S. 400. Several of these
cases were summary reversals, see Brunson v. North Carolina
(1948) 333 U.S. 851; Hale v. Kentucky (1938) 303 U.S. 613, 614;
Hollins v. Oklahoma (1935) 295 U.S. 394.

35 E.g., Avery, supra, 345 U.S. at page 562 (“Petitioner’s

charge of discrimination in the jury selection in this case springs
from the Jury Commissioners’ use of white and yellow tickets.
Obviously that practice makes it easier for those to discriminate
who are of a mind to discriminate.”); Pierre v. Louisiana, supra,
306 U.S. at page 540 (grand jury venire was required to be chosen
from annually compiled general list, which had to be “well mixed”
by statutory mandate, but jury commissioner followed practice of
choosing first 20 names from supplemental list comprised only of
white persons, so he never reached any names on the general
list); Smith, supra, 311 U.S. at page 132 (“Where jury
commissioners limit those from whom grand juries are selected to
their own personal acquaintance, discrimination can arise from
commissioners who know no negroes as well as from
commissioners who know but eliminate them.”).
24
manner as practically to proscribe any group thought by the
law’s administrators to be undesirable.” (Id. at p. 131.)36
The high court’s cases applying Norris in these years
abandoned the Jim Crow era indifference to race discrimination
in jury selection by means of administrative discretion, an
attitude exemplified by the Williams case in 1898. Under the
Norris line of cases, “[w]hen a jury selection plan, whatever it is,
operates in such way as always to result in the complete and
long-continued exclusion of any representative at all from a large
group of Negroes, or any other racial group, indictments and
verdicts returned against them by juries thus selected cannot
stand.” (Patton v. Mississippi, supra, 332 U.S. at p. 469, italics
added.)
Under a line of cases spawned by Norris, the high court
reframed the articulated basis for barring racial discrimination
in jury service. In these cases, the high court began to look at
jury service discrimination—of all kinds, based on gender, class
and race37—through the prism of the right to a fair and
impartial jury. (See Smith, supra, 311 U.S. 128; Glasser v.
United States (1942) 315 U.S. 60, 85; Thiel v. Southern Pacific

36 This approach echoed Yick Wo, supra, 118 U.S. 356. See
Washington v. Davis (1976) 426 U.S. 229, 241 (acknowledging
that the statistics-based Norris test for “systematic exclusion”
based on a prima facie showing of “disproportionate impact”
descends from Yick Wo).

37 See Hernandez v. Texas (1954) 347 U.S. 475, 478

(rejecting claim that discrimination for purposes of Strauder is
limited only to African Americans; any cognizable minority group
constituting a “distinct class” within the community is covered).
25
Co. (1946) 328 U.S. 217, 220; Ballard v. United States (1946)
329 U.S. 187, 195.) This analytical approach—which focused on
whether the jury, as chosen, reflected a representative cross-
section of the community, was not possible in the era of Strauder
because of the narrow scope given to the Fourteenth Amendment
in the Slaughter-House Cases.
The representative cross-section thread in the high court’s
Norris jurisprudence was especially influential here in
California—indeed, it eventually became the doctrinal
foundation for Wheeler—as reflected in a line of cases dating
from the mid-1950s. (See People v. White (1954) 43 Cal.2d 740,
749.)38 The high court eventually held that a defendant’s right
to a fair and impartial jury is constitutionally fundamental,
incorporating it as protected under the Sixth Amendment and
therefore binding on the states through the due process clause of
the Fourteenth Amendment, adopting representative cross-
section analysis as a matter of federal constitutional law. (See
Duren v. Missouri (1979) 439 U.S. 357, 358–359 (Duren).)39 This
created a tension—with the high court’s new cross-section
principle standing uneasily alongside the traditional equal
protection approach that had prevailed since Strauder. And at

38 See also People v. Carter (1961) 56 Cal.2d 549, 568;

People v. Sirhan (1972) 7 Cal.3d 710, 753; In re Wells (1971)
20 Cal.App.3d 640, 649; Ganz v. Justice Court (1969) 273
Cal.App.2d 612, 620.

39 See also Taylor v. Louisiana (1975) 419 U.S. 522, 527;

Peters v. Kiff (1972) 407 U.S. 493, 500.
26
least as a matter of federal law, the tension went unresolved
until Batson.
The late 1930s through the early 1960s proved to be the
highwater mark of the high court’s commitment to enforcing
Strauder’s antidiscrimination principle. Not only did defendants
prevail in many cases during this period by invoking Norris, as
noted above, but the high court broadened the procedural
scheme established in Rives. In the early 1950s, the high court
opened a pathway to postconviction collateral review by habeas
corpus in Brown v. Allen (1953) 344 U.S. 443. That offered
defendants who were unrepresented or poorly represented in
their state court trials an opportunity to overcome the forfeiture
of Strauder objections in state court based on rigid enforcement
of pretrial procedural rules.40
C. Swain v. Alabama Through Batson v. Kentucky
The next milestone case in the evolution of the law of race
discrimination in jury selection was Swain v. Alabama, supra,

40 Brown v. Allen was a groundbreaking federal habeas

corpus case which rejected the traditional rule—dominant in the
Jim Crow era—requiring federal habeas courts to give absolute
deference to prior decisions by state courts. (See Wright v. West
(1992) 505 U.S. 277, 287.) Eventually, the high court
significantly constrained federal habeas corpus review of claims
alleging race discrimination in jury selection (see, e.g., Teague v.
Lane (1989) 489 U.S. 288; Wainwright v. Sykes (1977) 433 U.S.
72), and in the 1990s Congress placed additional limits on that
avenue of review (28 U.S.C. § 2254(d)). The important takeaway
point here is not that Brown v. Allen created a path of federal
habeas review, but that in the Norris era postconviction collateral
review was made available as a mode of pursuing Strauder
claims.
27
380 U.S. 202, the first case in which a claim of racially
discriminatory use of peremptory challenges by a prosecutor
reached the high court. The case arose in Talladega County,
Alabama. (Id. at p. 210.) As the record there was summarized
by the high court, “while Negro males over 21 constitute 26% of
all males in the county in this age group, only 10 to 15% of the
grand and petit jury panels drawn from the jury box since 1953
have been Negroes, there having been only one case in which the
percentage was as high as 23%. . . . Although there has been an
average of six to seven Negroes on petit jury venires in criminal
cases, no Negro has actually served on a petit jury since about
1950. In this case there were eight Negroes on the petit jury
venire but none actually served, two being exempt and six being
struck by the prosecutor in the process of selecting the jury.” (Id.
at p. 205.)
The holding in Swain was twofold. First, the high court
rejected a statistics-based claim under Norris that the
underrepresentation of African Americans in the jury venire
from which the trial jury was chosen, alone, was sufficient to
establish a prima facie violation of the equal protection clause.
(Swain, supra, 380 U.S. at pp. 205–209.) Second, after
reviewing the common law heritage of the peremptory challenge
and its historic function—an “originalist” approach before that
style of reasoning had a name—the high court held that, “in any
given case,” a prosecutor’s reasons for exercising peremptory
challenges in the selection of trial juries must be presumed to

28
have been proper and beyond equal protection scrutiny. (Id. at
pp. 209–222.)
At least in theory, the Swain court left the door slightly
ajar to the pursuit of Norris systematic exclusion claims in the
use of peremptory challenges by prosecutors. The high court
explained this caveat as follows: “We have decided that it is
permissible to insulate from inquiry the removal of Negroes from
a particular jury on the assumption that the prosecutor is acting
on acceptable considerations related to the case he is trying, the
particular defendant involved and the particular crime charged.
But when the prosecutor in a county, in case after case,
whatever the circumstances, whatever the crime and whoever
the defendant or the victim may be, is responsible for the
removal of Negroes who have been selected as qualified jurors by
the jury commissioners and who have survived challenges for
cause, with the result that no Negroes ever serve on petit juries,
. . . the presumption protecting the prosecutor may well be
overcome.” (Swain, supra, 380 U.S. at pp. 223–224.)
A dissent from Justice Goldberg attacked the disaggregated
approach to analysis the Swain majority took—separately
analyzing the method of assembling the jury venire and the
method of choosing the trial jury—on the ground that this kind
of siloed focus on different steps in the jury selection process
“seriously impairs” the authority of Norris and its progeny.
(Swain, supra, 380 U.S. at p. 231 (dis. opn. of Goldberg, J.).) He
pointed out that racial discrimination at different stages in the
jury selection process must be viewed in its entirety, not by

29
analyzing each stage one-by-one. “It may be,” he explained, that
Talladega County’s “ ‘haphazard’ method” of selecting the jury
venire, “standing alone,” does not “show unlawful jury
discrimination. [But] this method of venire selection cannot be
viewed in isolation and must be considered in connection with
the peremptory challenge system with which it is inextricably
bound.” (Id. at p. 237 (dis opn. of Goldberg, J.).)
In the years after Swain, the high court eventually
loosened what was once known as the “rule of exclusion” under
which only total exclusion of cognizable groups from jury service
over many years was enough to establish a prima facie violation
of the equal protection clause. A handful of high court cases in
the 1970s recognized the potential for violations of the equal
protection clause in cases of underrepresentation—what the
high court sometimes called “forbidden token inclusion.”41 But
in no reported case, federal or state, was a defendant ever able to
meet the demanding test required to trigger the narrow
exception Swain envisioned.42
The next major shift came in Batson, but it is important to
appreciate what led to the shift. In the early 1980s, Justice
Marshall authored a series of dissents from denial of certiorari

41 Swain, supra, 380 U.S. at p. 206; Castaneda v. Partida

(1977) 430 U.S. 482; Alexander v. Louisiana (1972) 405 U.S. 625;
Turner v. Fouche (1970) 396 U.S. 346.

42 See, e.g., People v. Newton (1970) 8 Cal.App.3d 359, 390

(Newton) (applying Swain and holding its exception was not met);
In re Wells, supra, 20 Cal.App.3d at p. 647 (same).

30
calling for Swain to be revisited.43 He argued that “Swain is
inconsistent with the rule established in other jury selection
cases that a prima facie violation is established by showing that
an all-white jury was selected and that the selection process
incorporated a mechanism susceptible to discriminatory
application, irrespective of when in the selection process that
opportunity arose.” (McCray, supra, 461 U.S. at p. 965 (dis. opn.
of Marshall, J.).) And in his view, the standard of proof for
discrimination in Swain imposed a nearly insurmountable
burden on defendants. (Ibid.)
These dissents led to the grant of certiorari in Batson. By
that time, our Supreme Court in Wheeler and other states and
federal courts following it44 had recognized claims of racially
discriminatory “group bias” in prosecutorial exercise of
peremptory challenges under their respective state
constitutional right-to-jury-trial protections. Wheeler explicitly
declined to follow Swain in favor of an inquiry into whether
prosecutorial use of peremptory challenges deprived the
defendant of a fair and impartial jury composed of a
representative cross-section of his community. (Wheeler, supra,
22 Cal.3d at pp. 283–287.) And in doing so, our Supreme Court
relied on both the Sixth Amendment, citing the Duren line of

43 See Gilliard v. Mississippi (1983) 464 U.S. 867, 868 (dis.

opn. of Marshall, J.); see also Thompson v. United States (1984)
469 U.S. 1024 (dis. opn. of Marshall, J.); Williams v. Illinois
(1984) 466 U.S. 981 (dis. opn. of Marshall, J.); McCray v. New
York (1983) 461 U.S. 961 (dis. opn. of Marshall, J.) (McCray).

44 See Batson, supra, 476 U.S. at p. 82, fn. 1.

31
cases, and on article I, section 16 of the California Constitution,
citing its own White line of cases (Wheeler, at p. 287), while
extensively discussing a large body of scholarly commentary that
had been critical of Swain (Wheeler, at pp. 276, fn. 17, 278, fn.
19, 279, fns. 23 & 24).45
When other state courts, and many federal circuit courts of
appeal, rejected Wheeler, opting to continue to follow Swain,
(Batson, supra, 476 U.S. at p. 82, fn. 1), the high court granted
certiorari in Batson to resolve the split. (Id. at p. 112 (dis. opn.
of Burger, C.J.).) The question presented in Batson was whether
to follow Wheeler’s representative cross-section analysis under
the Sixth Amendment (ibid.), thus avoiding the need to overrule
its own decision in Swain, or instead to overrule Swain and
adhere to the traditional Fourteenth Amendment approach that
had been followed since Strauder.
The high court opted to overrule Swain, but only in part.
In doing so, it borrowed from the remedy section of Wheeler (see
Wheeler, supra, 22 Cal.3d at pp. 278–283), adopting the same
three-step test the Wheeler court devised to detect prohibited

45 Professor Van Dyke’s treatise was featured prominently

in this discussion, as noted above. (Ante, at p. 10, fn. 7.) For an
example of his views, see Jury Selection Procedures, at page 19
(“As recently as World War II, it was easy for most Americans to
consider the privilege of making important governmental
decisions as the prerogative of whites (and usually males), and
thus accept juries that excluded blacks and women. Only in the
first post-war decade—which saw the integration of the armed
forces, the first civil rights legislation, and the rejection of
segregation as unconstitutional—did national policy begin to
insist that blacks have the same rights as whites.”).
32
“group bias,” but anchoring the analysis in the equal protection
clause. (Batson, supra, 476 U.S. at pp. 88–98.) Under Batson’s
now familiar equal protection test, “[f]irst, the defendant must
make out a prima facie case ‘by showing that the totality of the
relevant facts gives rise to an inference of discriminatory
purpose.’ [Citations.] Second, once the defendant has made out
a prima facie case, the ‘burden shifts to the State to explain
adequately the racial exclusion’ by offering permissible race
neutral justifications for the strikes. [Citations.] Third, ‘[i]f a
race-neutral explanation is tendered, the trial court must then
decide . . . whether the opponent of the strike has proved
purposeful racial discrimination.’ ” (Johnson v. California (2005)
545 U.S. 162, 168, fn. omitted.)46
Because Batson reads the antidiscrimination principle of
Strauder as a prohibition of discrimination against prospective
jurors and continues to apply it as a matter of equal protection
law under the Fourteenth Amendment—which requires state
action—the high court had to confront and resolve a series of
difficult doctrinal problems in the early 1990s. Does a criminal
defendant have third party standing to complain about
discrimination directed toward someone else? Does a criminal
defendant of one race have the right to complain about
discrimination directed toward a prospective juror of another

46 The high court referenced Wheeler’s “version of this

standard” to demonstrate the practical workability of this kind
of approach (Batson, supra, 476 U.S. at p. 99, fn. 23), but made
no attempt to instruct lower state or federal courts as to “how
best to implement” the Batson framework (id. at p. 99, fn. 24).
33
race? Does the exercise of peremptory challenges by the defense,
not by the prosecution, constitute state action, thus extending
the prohibition to defense lawyers as well as the prosecution?
The high court eventually answered all of these questions
yes,47 but none of them would have arisen under Wheeler’s
representative cross-section rule, which applies to both sides and
all cognizable minority groups (Wheeler, supra, 22 Cal.3d at
pp. 276–277 [rule applies to “parties,” not just prosecution], id.
at p. 280 & fn. 26 [all “cognizable group[s],” not just African
Americans])—and most importantly, involves the deprivation of
the defendant’s right to a fair and impartial jury (id. at p. 270
[“representative cross-section rule” “protect[s] the constitutional
right to an impartial jury”]). Wheeler, unlike Batson, turns on
injury to the defendant’s right to a fair and impartial jury, not on
the prospective juror’s right to be free from discrimination in jury
selection.
But Batson did not completely overrule Swain. In 1990,
the high court returned to the question presented by its grant of
certiorari in Batson—whether race-based use of peremptory
challenges to the seating of a trial jury may be attacked under
the Sixth Amendment’s representative cross-section
requirement. Pivoting definitively away from the approach

47 See Georgia v. McCollum, supra, 505 U.S. 42 (defendant

need not be of same race as excluded juror; discriminatory
exercise of peremptory challenges by defense constitutes state
action; prosecution has standing to object to discriminatory use of
peremptory challenges by defense); Powers v. Ohio (1991) 499
U.S. 400, 416 (defendant has third party standing to object to
discrimination against prospective jurors).
34
taken in Wheeler, it answered that question no. The high court
rejected the argument “that a prosecutor’s use of peremptory
challenges to eliminate a distinctive group in the community
deprives the defendant of a Sixth Amendment right to the ‘fair
possibility’ of a representative jury” (Holland v. Illinois (1990)
493 U.S. 474, 478 (Holland)), and in doing so, it cited and quoted
generously from Swain (Holland, at pp. 480–484), thus
confirming Swain’s continuing vitality except as modified by
Batson.48
Here in California, perhaps the most enduring legacy of
Swain is that, in our law, as a constitutional matter, we continue
to analyze alleged discrimination in the exercise of peremptory
challenges under Batson and Wheeler (with their focus on intent
to discriminate) separately from the method of assembling the
jury venire (where we look for systematic exclusion but do not

48 Central to Holland’s rationale was a history-and-

tradition-based theory of the peremptory challenge laid out in
detail by the Swain court. As explained by the Holland court,
“[t]he Sixth Amendment requirement of a fair cross section on
the venire is a means of assuring, not a representative jury
(which the Constitution does not demand), but an impartial one
. . . .” (Holland, supra, 493 U.S. at p. 480.) Tracing this theory
of the peremptory challenge all the way back to Blackstone, just
as the Swain court did, the Holland court further explained that
the objective of neutrality has traditionally been accomplished
by allowing each side to use peremptory challenges to eliminate
perceived biases on each extreme in picking the trial jury.
(Holland, at p. 481.) “[T]o say that the Sixth Amendment
deprives the State of the ability to ‘stack the deck’ in its favor is
not to say that each side may not, once a fair hand is dealt, use
peremptory challenges to eliminate prospective jurors belonging
to groups it believes would unduly favor the other side.” (Ibid.)
35
recognize statistical disparities as sufficient to establish a prima
facie case of constitutionally impermissible discrimination). (See
People v. Bell (1989) 49 Cal.3d 502, 527–528 (Bell).) Bell holds
that, in cases where defendants seek to show a violation of the
cross-section principle based on underrepresentation of protected
groups in the venire, a “ ‘defendant does not discharge the
burden of demonstrating that the underrepresentation was due
to systematic exclusion merely by offering statistical evidence of
a disparity. . . . [He] must show, in addition, that the disparity is
the result of an improper feature of the jury selection process.’ ”
(People v. Henriquez (2017) 4 Cal.5th 1, 20, quoting People v.
Burgener (2003) 29 Cal.4th 833, 857.)
In dissent in Bell, Justice Broussard took the position that
a showing of statistical underrepresentation of minorities in the
jury venire, alone, is enough to make out a prima facie case of
systematic exclusion, even if it is produced by facially neutral
methods of selection. (Bell, supra, 49 Cal.3d at pp. 562–574 (dis.
opn. of Broussard, J.).) According to him, “[t]he right of a
representative cross-section demands the result that venires be
truly representative of the community, at least to the extent that
practical reality permits.” (Id. at p. 572.) Relying on Norris and
Yick Wo, Justice Broussard pointed out that “[s]tates have
persistently used apparently neutral standards to exclude
minorities from juries,” as illustrated by the use of poll taxes and
literacy tests in the Jim Crow South to achieve that end. (Bell,
supra, 49 Cal.3d at p. 573 (dis. opn. of Broussard, J.).) In his
view, it is “inconsistent with the representative cross-section

36
right . . . and the numerous federal and California cases
interpreting that right for almost 50 years” to hold that
systematic exclusion requires a showing of some impermissible
feature of an otherwise neutral selection process. (Id. at p. 574.)
D. The Lessons of History
Having reviewed the pertinent history in considerable
detail, I believe there are some lessons to be learned that help
illuminate the statutory interpretation question before us.
Representative Cross-Section Analysis and
Discriminatory Impact Versus Discriminatory
Intent
The use of peremptory strikes is a discretionary “practice
[that] makes it easier for those to discriminate who are of a mind
to discriminate” (Avery, supra, 345 U.S. at p. 562), and as such,
is only the latest in a long line of discretionary tools available to
any prosecutor who seeks to tap perceived racial biases as a way
to gain advantage in criminal cases. Long protected in our law
as a matter of custom and tradition, the peremptory strike is
particularly well suited for this purpose because its summary
nature allows free play for implicit bias through the use of
stereotypes and hunches. Even before Justice Marshall warned
of that danger in his Batson concurrence, the Norris line of cases
in the 1930s taught that, rather than try to ferret out subjective
discriminatory motive—which is easily masked, often by simple
denial—objective evidence based on statistics can provide the
clearest evidentiary basis for inferring discrimination, and thus
shift the burden of proof to the state to explain racial disparities
in those who are chosen for jury service.

37
 California was once a leader in attacking this problem. A
decade before Batson, our Supreme Court adopted a reading of
article I, section 16 of the California Constitution under which
the race-based use of peremptory challenges by a prosecutor
directly harms the defendant—and is therefore an act taken
“towards” the defendant “based on his race”—because it deprives
him of a fair and impartial jury. That has important
implications for purposes of our statutory interpretation inquiry
here. In California, under Wheeler, we are engaged in a search
for whether the jury reflects a representative cross-section of the
community. Though, over time, Wheeler’s three-step remedial
test for “group bias” has, as a practical matter, merged into the
three-step test for discriminatory intent under Batson, the
foundation for analyzing who is being injured is set by Wheeler,
not Batson.
In construing the RJA, consider the issue from the
standpoint of duty breached and how that breach causes injury.
Under the RJA, a listed group of official actors (the “[j]udge, an
attorney in the case, a law enforcement officer involved in the
case, an expert witness, or juror”) all have a duty not to commit
certain prohibited acts (“exhibit[ions]” of “bias”) against the
defendant based on race (“towards the defendant because of the
defendant’s race, ethnicity, or national origin”). (§ 745, subd.
(a)(1).) When race-based use of peremptory challenges is
claimed, the alleged duty breached (an exhibition of bias based
on race) by a prosecutor (a covered official actor) has allegedly
caused the deprivation of the defendant’s right to a fair and

38
impartial jury (violating a legal protection afforded by statute to
the defendant). In outlining this rather straightforward textual
analysis, the background law I believe we must assume the
Legislature expects us to apply is the law of California under
Wheeler, not federal law under Batson.
It is a mistake to assume that, in the summer of 2020, the
Legislature wished to address race-based peremptory challenges
solely by tinkering with Batson’s mode of equal protection
analysis by statutory update under Code of Civil Procedure
section 231.7. Certainly, the Legislature had improvements to
Batson in mind, and the tinkering represents significant reform.
But it seems evident to me the Legislature had more in mind at
that moment in time. For many decades in the law of race
discrimination in jury selection, going back to Norris, there has
been an ongoing debate in the high court’s equal protection
jurisprudence about discriminatory impact evidence versus
evidence of discriminatory intent.49 It seems to me the
Legislature has aligned California in favor of the impact side of
this debate. Swain takes a stage-by-stage approach to jury
selection, confining Norris’s statistics-based prima facie test to
steps in the jury selection process upstream from peremptory
challenges. We still adhere to that approach in California,

49 The same debate is also taking place in adjacent areas of

law where the high court has shown a level of commitment to the
doctrine of discriminatory intent that we have not seen since the
Jim Crow era. (See, e.g., Louisiana v. Callais (2026) ___ U.S. ___,
___ [146 S.Ct. 1131, 1152–1153] (voting rights); Students for Fair
Admissions, supra, 600 U.S. at p. 206 (university admissions).)
39
constitutionally. (See Bell, supra, 49 Cal.3d 502.) By statute,
the RJA appears to have reset how we should be thinking about
all of this, and in doing so, its precursor is Norris, not Swain.
If the legislative findings accompanying the original
enactment of the RJA teach us anything, it is that the dissenting
points of view in modern equal protection cases involving racial
discrimination in the enforcement of the criminal law (e.g.,
McCleskey, supra, 481 U.S. at pp. 320–366 (dis. opns. of
Brennan, J. & Blackmun, J.) provide more insight into the
legislative intent behind the RJA than do majority opinions in
this body of jurisprudence. Thus, in my view, the dissents from
Justice Goldberg in Swain and from Justice Broussard in Bell
urge that we should be looking to discriminatory impact, not just
discriminatory treatment. Recognizing that we are now dealing
with a statutory concept of racial bias that is untethered to
Swain, these two opinions provide better guides to the
Legislature’s likely intent than does adherence to the cramped
evidentiary focus of Batson/Wheeler analysis.
In this respect, the RJA goes beyond both Wheeler and
Batson. I read it as a bold effort to reclaim, by statute, the
national leadership role California played when, in Wheeler, our
Supreme Court devised a way to breathe new life into Strauder
without running afoul of Swain. But the approach the
Legislature took in the RJA, in a first effort of this kind
anywhere in the United States, is more ambitious than Wheeler.
The evidentiary inquiry under the RJA is plainly broader than
the three-step remedy framework in Wheeler (which Batson

40
simply borrowed). That remedial framework confines its focus to
the treatment of prospective jurors in the picking of a jury for a
“particular case on trial” (Wheeler, supra, 22 Cal.3d at p. 282),
which is why Wheeler and Batson ended up merging in practice.
In describing the outline for what has come to be known as
comparative juror analysis in the Batson/Wheeler framework,
Wheeler speaks of statistical proof with disfavor, viewing it as
pertinent only to “earlier stage[s] in the jury selection process,
i.e., whether the master list or the grand or petit jury venire
constitutes a representative cross-section of the community[,]”
and of no utility in “demonstrat[ing] racial motivation in the
striking of blacks from a petit jury.” (Wheeler, supra, 22 Cal.3d
at p. 279.)50 On this point, Wheeler preserves the disaggregated
approach to discrete stages of the jury selection process taken in
Swain and, analytically, continues to focus on an ever-elusive
search for subjective discriminatory purpose. Because there is
so much discretion built into the process of jury selection,
particularly at the peremptory challenge stage, the Wheeler
court concludes that it is “ ‘virtually impossible’ for statistical

50 See Wheeler, supra, 22 Cal.3d at page 279 (Under

methods of analysis proposed by both the defendant and amicus,
a technique “commonly called statistical decision theory, has
impressive credentials: the United States Supreme Court has
given it increasing weight in the past decade” but it “has been
criticized on the ground that it ‘involves complicated calculations
resulting in answers that are difficult to visualize and evaluate,’
and that ‘the result is significantly affected by the choice of
sample size.’ ”).
41
decision theory to demonstrate racial motivation in the striking
of blacks from a petit jury.” (Ibid.)
The logic is sound, but only if our goal is to uncover
subjective “racial motivation”—a frame of analysis the
Legislature has indicated time and again that it seeks to
abandon, telling us so in statutory language and in uncodified
findings, emphatically enough that the message might as well be
in all capital letters. And on this overarching issue, the RJA
expressly rejects Wheeler’s dismissive attitude toward statistical
proof. (§ 745, subd. (c)(1).) Harkening back to the Norris era—
when the high court showed its greatest commitment to
enforcement of Strauder and dismantled the intent-to-
discriminate jurisprudence of the Jim Crow era by creating the
systematic exclusion test—the RJA affirmatively endorses the
use of statistics.
By taking discriminatory purpose out of the calculus, the
RJA and Code of Civil Procedure section 231.7 both necessarily
focus on the impact of the exercise of peremptory challenges on
the jury’s demographics. This allows the lawyers on both sides
to continue to pursue their natural tactical interests in using
peremptory strikes, which is an inevitable feature of the
adversary process, as Justice Evans astutely points out in her
Hazlett dissent. (Hazlett, supra, ___ Cal.5th at p. ___ [2026 WL
2527137 at p. *86] (dis. opn. of Evans, J.).) But at the same
time, the RJA and Code of Civil Procedure section 231.7, read
collectively, now impose on all counsel a statutory duty to refrain
from undermining the court’s objective of seating a jury that

42
reflects a representative cross-section of the community.
Creating a statutory duty that enlists counsel in the court’s
mission to achieve impartial justice is not a particularly novel or
radical idea, but it does extend Wheeler—with its foundation in
representative cross-section analysis—more fully to its logical
conclusion.
To put a sharper point on this, once we take full stock of
how the law of race discrimination in jury selection has evolved
since Strauder, the most critical thing to appreciate is that in
1978 Wheeler broke with a century of equal protection precedent
(the high court pivoted the other way in Holland), while
preserving all of the trappings of the Jim Crow era because of its
continued analytical focus on prosecutorial motivation under the
test for “group bias.” The RJA and Code of Civil Procedure
section 231.7, when read together, complete Wheeler’s historic
break from post-Strauder equal protection jurisprudence by
abandoning the intent to discriminate doctrine.
Summary of What We Can Learn from the History
My bottom-line conclusion is this: Only when read in
combination do the RJA’s statutory scheme and Code of Civil
Procedure section 231.7’s statutory scheme adopt all of the
strongest procedural correctives that surfaced in the mid-1930s
Strauder case law—a point in time when the high court
developed its systematic exclusion test and showed the greatest
commitment to vigorous enforcement of Strauder’s
antidiscrimination principle. In the Jim Crow era, strictly
enforced rules impeding access to evidence went hand in hand
with the presumption of regularity governing official conduct;
43
the rules governing the burden of proof; and highly deferential
appellate review of trial court fact finding—with all of these
rules applying under the banner of the intent to discriminate
doctrine.
Things changed in the mid-1930s. The RJA and Code of
Civil Procedure section 231.7, when read together, adopt similar
reforms to those adopted in the Norris era (de novo review;
statistical means of proving discrimination by circumstantial
evidence) and address many of the same problems that have
been obstacles to enforcement of Strauder since the 19th century
(the presumption of correctness as an impediment to proving
discrimination; no collateral review in habeas proceedings; lack
of access to counsel). That is ultimately why, in my view, after
considering the lessons history teaches, these pioneering
statutes must be construed to work in harmony.
How, as a practical matter, do they work together? Quite
simply, as follows. Even if a prosecutor strikes a prospective
juror by peremptory challenge in a manner that is not
presumptively proscribed under Code of Civil Procedure section
231.7, the peremptory challenge might still constitute a violation
of the RJA, if, in light of the circumstances, the defendant can
prove it was exercised “on the basis of” his race. (§ 745,
subd. (a).) Because of the absence of any presumption of
invalidity and the need to make a prima facie case, proving a
violation under the RJA will be harder than it would be under
Code of Civil Procedure section 231.7, but the RJA should
remain available as a catchall mechanism, since it is impossible

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to say that the listed presumptive invalidity scenarios in Code of
Civil Procedure section 231.7, subdivisions (e) and (g), will
always detect disguised racial bias. When the two statutory
schemes are read together, statistics may be part of the “totality
of the evidence” under the RJA (§ 745, subd. (h)(1)) and the
“totality of the circumstances” under Code of Civil Procedure
section 231.7 (Code. Civ. Proc., § 231.7, subd. (d)(1)).
To use a concrete example, in a case where the disputed
exercise of a peremptory challenge is against the sole member of
a particular ethnic group in the venire, resulting in an all-white
jury, there may well be an antecedent question about why there
was just one person of color in the venire. Under the siloed
analysis we have inherited from Swain, that antecedent
question is irrelevant as a constitutional matter under
Batson/Wheeler. But under a statutory analysis pursuant to the
RJA and Code of Civil Procedure section 231.7, it is not—or at
least it should not be, if we correctly read the statutes in
tandem. The specificity of Code of Civil Procedure section 231.7
and the generality of the RJA, in short, should be read and
applied as complementary means to the same end—identifying
unconscious bias, which is the overarching goal of both statutory
schemes.
We now know, for example, that even if a prosecutor fails to
rebut the presumption of invalidity under Code of Civil
Procedure section 231.7, subdivision (d)(2), there remains the
further question whether the totality of the circumstances test
has been met under subdivision (d)(1) of that statute. (People v.

45
SanMiguel (2026) 20 Cal.5th 254, 283–288.) I see no reason why
the inverse is not also true: Where the presumption of invalidity
has been rebutted as to one or more proffered reasons for a
peremptory strike, the totality of the circumstances might still
suggest to an objective observer that unstated discrimination
was a factor in the exercise of a peremptory challenge. That
ultimate question will always turn on all the surrounding
circumstances. And in the process of “inferential reasoning”
(SanMiguel, at p. 283) courts must rely upon when addressing
subtle and difficult questions of unconscious bias, statistical
evidence—as a potentially illuminating objective source of
proof—may be relevant. It might provide little help in some
situations, but it might speak loudly in others, as was the case in
McCleskey, supra, 481 U.S. 279.
Finally, moving from substance to procedure, the RJA has a
discovery mechanism that is specifically designed to require
disclosure of information bearing on claims of race discrimination
in criminal proceedings. (See Young, supra, 79 Cal.App.5th at
pp. 162–163.) Although Code of Civil Procedure section 231.7 has
no analogous mechanism, information generated by the RJA’s
disclosure process may be relevant to the totality of the
circumstances question that is ultimately the focus of both
statutes. Prosecutorial notes and training manuals provide a
good example. (See, e.g., Miller-El, supra, 545 U.S. at p. 266
[“The prosecutors took their cues from a 20-year-old manual of
tips on jury selection, as shown by their notes of the race of each
potential juror”]; cf. Amadeo v. Zant (1988) 486 U.S. 214

46
(following discovery of memorandum in files of jury
commissioners outlining methods designed to underrepresent
black people and women on grand and traverse jury venire,
habeas corpus proceedings were allowed to proceed).
The RJA also expressly permits claimed violations to be
raised postconviction by habeas petition under section 1473; Code
of Civil Procedure section 231.7 has no analogous mechanism. If
Code of Civil Procedure section 231.7 serves as the only vehicle
by which criminal defendants may raise statutory claims
attacking race-based prosecutorial use of peremptory challenges,
this sole category of racially discriminatory conduct in criminal
cases is the only one that would lie beyond the reach of section
1473 postconviction petitions authorized by the RJA. I find it
unlikely that the Legislature intended such an anomalous result.
It would be contrary to one of the principal lessons we can learn
from the evolution of the law of race discrimination in jury
selection: Postconviction review is sometimes critical, since lack
of effective counsel has historically been an obstacle to
meaningful enforcement of Strauder claims.
This procedural impediment is certainly different in nature
than it once was (see ante, at p. 20, fn. 25), but the Legislature
clearly views it as still a problem. In this case, Haney, who
claims that all African American prospective jurors were swept
from his jury by prosecutorial peremptory strike, was foreclosed
from pursuing a Batson/Wheeler claim in federal court because of
his counsel’s failure to object on that ground in a timely manner.
(Haney v. Adams (9th Cir. 2011) 641 F.3d 1168, 1173.) We will

47
never know whether, by invoking the RJA, he might have been
able to prove the allegation of racially discriminatory use of
peremptory challenges he makes in these section 1473
proceedings, but I think he should have been allowed to try.
IV. Conclusion
Under article VI, section 13 of the California Constitution,
there is a fundamental boundary that circumscribes what the
Legislature can do in directing appellate courts to order reversals
for “all error, no matter its scope or actual effects.” (People v.
Bankston (2026) 19 Cal.5th 786, 876; see People v. Simmons
(2023) 96 Cal.App.5th 323, 340–345 (dis. opn. of Yegan, J.).) On
an issue that is plainly within this boundary (Wheeler, supra, 22
Cal.3d at p. 283 [denial of the right to a fair and impartial jury is
per se reversible]) and central to the Legislature’s expressed
racial justice mission under the RJA, the Attorney General has
argued that the RJA does not apply at all. Time will tell
whether, in the view of the Legislature, this ahistorical statutory
interpretation position—which is now the law, after Hazlett—is
consistent with the level of judicial commitment to uprooting
racial bias in criminal cases that the Legislature has repeatedly
stated in legislative findings it wants to see in the application of
the RJA.
In the meantime, we would do well to remember what our
Supreme Court said in Wheeler, quoting the “seminal [words of]
Justice Black . . . for a unanimous [high] court [in Smith, supra,
311 U.S. at p. 130]: ‘It is part of the established tradition in the
use of juries as instruments of public justice that the jury be a

48
body truly representative of the community. For racial
discrimination to result in the exclusion from jury service of
otherwise qualified groups not only violates our Constitution and
the laws enacted under it but is at war with our basic concepts of
a democratic society and a representative government.’ ’’
(Wheeler, supra, 22 Cal.3d at p. 267.) “In that war,” the Wheeler
court said, “the courts cannot be pacifists.” (Ibid.) In the RJA,
our Legislature has said the same thing.

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Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Eric Flemming

Counsel: Monte Haney, in pro per.; and Kaiya Pirolo, under
appointment by the Court of Appeal, for Petitioner.

Rob Bonta, Attorney General, Lance Winters and Jeffrey
M. Laurence, Assistant Attorneys General, Donna M.
Provenzano and Melissa A. Meth, Deputy Attorneys
General for Respondent.