Racial minorities are sometimes removed from prospective juries—just like everybody else. But the Legislature is so concerned that this could happen on the (obviously improper) basis of race that the Racial Justice Act prohibits a challenge to a racial minority even on the basis of proper factors, such as lack of life experience. And if that happens, the Legislature has declared not only that this is against law, but operates as a get-a-new-trial-free card.
But the California Constitution prohibits get-a-new-trial-free cards. Instead, no judgment may be reversed—even if the judgment is rife with error—unless the error results in a “miscarriage of justice.”
Consider how these opinions might be reconciled:
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Announcer 0:03
Music. Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases in news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,
Jeff Lewis 0:17
welcome everyone. I am Jeff Lewis
Tim Kowal 0:19
and I'm Tim Kowal, although Jeff and I are certified appellate specialists, and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. If you find this podcast useful, please recommend it to a colleague. Yeah,
Jeff Lewis 0:33
if you find it unhelpful, go ahead and send it to your opposing counsel. All right, and Jeff
Tim Kowal 0:37
you You challenged me to come up with a new opening gag, and I'm still working on it, but our audience will have to labor under my stale the gag for a little a little bit longer this week, Jeff, I thought we'd just cover an interesting case on the Racial Justice Act. There was a divided opinion in people versus aureus tegi Out of the second district, division six. This was a the facts of the case were, you know, not all that exciting. It's a residential burglary case, and the the defendant was found guilty, but on appeal, the divided panel reversed on the basis of the Racial Justice Act. So what happened is that under the Racial Justice Act, the reversal was not because the defendant was was not guilty, and in fact, as as judge presiding justice Gilbert noted in his dissent, the evidence of of guilt was overwhelming. But instead, what had happened is that the the prosecution had made a peremptory challenge to one of the prospective jurors, and that prospective jurors was, was apparently or allegedly Hispanic or had a Hispanic surname. And so the defense said no, that is presumptively invalid because it was for racial reasons and and the courts, the court took, took argument on the point prosecution said no, it had nothing to do with race or because of the surname. It was because this, this perspective juror seemed, had lacked life experiences, didn't have a job, didn't have any military experience, and have sufficient connections to the community. And the judge said, yeah, that's that passes muster with me. So Objection overruled. So
Jeff Lewis 2:16
right, so let me pause you there. So at this point, the court, the trial court, had followed the traditional bats and Wheeler process for evaluating whether peremptory challenges are being exercised in a neutral manner, right? Everything is just the way we learned it in
Tim Kowal 2:29
law school, right? Yeah, yeah, that's right. And but what, what happened under under this case is that the the Court of Appeal thought no, there was even though there was no actual bias, it didn't find that the prosecution actually was biased, and that the majority went out of its way to note that it was not finding that the prosecutor was motivate, motivated by bias, and there was also no suggestion that had that challenged juror been left on the panel, that the outcome would have been different. And this gets to why I wanted to talk about this case, Jeff, is that there was no finding a prejudicial error. The divided the majority panel decided that that the objection should have been sustained and that that juror, perspective juror, should have been left on the jury panel. And for that reason alone, the guilty verdict was overturned without even any analysis under the miscarriage of justice standard under the under the California constitution, a judgment may not be reversed unless there is a finding that the error caused a miscarriage of justice. So that's why I thought this. This case was very interesting, and justice, presiding justice, Gilbert, mentioned this in his dissenting opinion, so the majority had reason that to overrule the objection, the trial judge must make a finding that the prosecution's asserted reasons for the challenge must bear on the jurors ability. This is the statutory language the jurors ability to be fair and impartial in the case, and that's Code of Civil Procedure, section 230, 1.7 subdivision F, but the trial court didn't make this Express finding, and that required her say reversal, because, as the court reasoned, it is imperative that trial courts heed section 230, 1.7 new mandates to root out discriminatory uses peremptory challenges, end quote and so all well and good for the maybe for the cause of rooting out systemic injustice or perceived or implicit bias, but in dissent, Presiding Justice Gilbert, noted that even though he agreed with the purposes of The Racial Justice Act, the the trial judge really did implicitly make that finding, even though it didn't use those express words, yes, the the express words from the statute, the the same appellate procedures apply, and implied findings will be implied on appeal. All unless, unless there's no substantial evidence to support it. And the Presiding Justice Gilbert said that the majority majority's decision to reverse was, was, was not logical, because the trial court, you know, just because the trial court did not deploy what Justice Gilbert called the talismanic phrase that I find by clear and convincing evidence. The reasons of the prosecutor for the peremptory challenge bear on this perspective jurors ability to be fair and impartial in this case, Justice Gilbert said, this is taking literalism into the realm of the absurd, but here, but then justice Gilbert goes on to talk about what I what I really wanted to talk about with you, Jeff, that he mentioned that there mentioned, there is a cogent argument raised that had been raised by Justice Egan in his dissent back last year in people versus Simmons. And note Jeff that when he says that it's a cogent argument that really, that really is saying something, because justice Egan was dissenting to Presiding Justice Gilbert's majority opinion in the people versus Simmons case. So it makes one wonder if justice Gilbert thinks that it was so cogent, why did he go against justice Egan and authoring the majority opinion in the in the Simmons case? But, but getting to that cogent argument that Justice Egan raised that Justice Gilbert is now relying on. He says that the Racial Justice Act violates the doctrine of separation of powers. And here we're going to get into the constitutional requirement that to reverse a judgment, the Court of Appeal has to make a finding of a miscarriage of justice and and that was actually affirmed in a case that we talk about that comes up frequently in our discussions, Jeff FP versus Monier, which talked about statement of statements of decision, which a big recurring topic for us appellate attorneys, we always ask file attorneys make sure that you request a statement of decision and object, because if you don't have one and if you don't object, then it could be a good ground for reversal. It would have been a better ground for reversal if FP Monier went the other way. But what had happened in FP Monier is that the the appellant had requested a statement of decision, the judge didn't make all the findings that were requested, and the appellant jumped up and down. And said, aha, you've got to reverse now, because a statement of decision is required under Code of Civil Procedure, Section 632, you have to make. The judge has to make all the findings on all the principal controverted issues. And the judge didn't do that, and that that means you have to reverse. And the Supreme Court said, Well, that's a good argument, but the the Constitution still says that there has to be a finding of a miscarriage of justice. So yes, you have established that there was an error, but now you have to persuade us that that error resulted in a miscarriage of justice, and that's been the law at least since 2017 that even if there's a missing finding, even if there's a finding that the statute that the legislature says judge, you have to make this finding, or else it's error that is still subject to the constitutional requirement that that error still has to be shown to be prejudicial, would have led to a different result had the judge complied with that statutory requirement. And what is different, and what what the Racial Justice Act does, Jeff is that it has a provision that says that any violation of this act is a miscarriage of justice. The legislature finds and determines that that these provisions are so important that any violation of them constitutes structural error, and thus a miscarriage of justice and justice, Hegan said, this is a separation of powers problem, addressing the fact that that he reasoned that that what constitutes a miscarriage of justice under the Constitution must be independently determined by the judiciary. That question cannot be usurped by another branch of government, so absent a finding that the particular violation of the Racial Justice Act resulted in a miscarriage of justice, the judgment must be affirmed even despite violations of the act and justice. Egan had ended his dissent in the Simmons case by quoting Marbury versus Madison saying that the legislature cannot dismantle California's separation of powers doctrine by dictating to the judiciary how the California Constitution should be construed. What do you think of that so far? Jeff, do you do you find yourself in agreement with Justice Egan and justice Gilbert? Or do you think that the Racial Justice Act and the legislature can decide or its determination should be either dispositive or or probative on the question of whether there is a structural error. Yeah, it's
Jeff Lewis 9:51
interesting. You know, if a situation where the courts determining, either California Supreme Court or a Court of Appeal determining, we find that. Every violation of this statute is so bad in light of legislative policy behind the statute that we're going to hold at a structural error and always, per se, reversible. That would be one thing. But I tend to agree here that when the legislature's telling the court how it must so find in every case, there's a bit of blurring the lines in terms of separation of powers, yeah.
Tim Kowal 10:22
Well, yeah. And the way you just phrased it is that the legislature is making it a determination. A legislative determination meaning irrespective of the case, irrespective of the parties, of the facts of the case, of the circumstances, of the balancing of equities and in every case. And that is a legislative determination by one branch of government. And the Constitution is meant to be, you know, there are, they are co equal branches of government, as we know. And the judicial power answers questions differently. It cannot answer questions for all cases, for all parties, for all time. It answers each question on the merits of each case. And so the the the exercise of judicial power requires the judiciary to answer that question in a different way and just relying on the legislative determination. I think, I think Justice. Egan has a point that there is a separation of powers problem there. Yeah. No, I agree. I agree. Now another, another angle to this that I wanted to bring up, Jeff, is that it this discussion called to mind another case that we had talked about, Abdel cater, Abdel Kader. We talked about this case a couple of times. We talked about it when it came out in 2022 and it was one of, I think we talked about it as one of our most important cases on this that we discussed on this podcast, that was the case that held that under Family Code Section 3044, where there has been a prior finding of domestic violence, that prior finding triggers a presumption of unfitness for child custody. So when you come to cases involving child custody, and the parents are trying to decide who you know, who gets custody? If one parent gets full custody, the a parent who has a prior finding against him or her of domestic violence has a very high burden to overcome, and if the judge wants to grant that person custody, that judge has to make Express findings of various statutory factors to satisfy the legislative requirement that this parent is fit to have custody of the child despite the fact that this parent has a prior finding of domestic violence. And in Abdel Kader, the judge had awarded custody to to to the party, to the respondent, who who had a prior finding of domestic violence against him. And the appellant said, Well, what gives there's not been the Express findings required by the legislature, so you have to reverse. You didn't meet the requirements of Family Code Section 3044, by making the Express determinations. And the court, but in the Court of Appeal agreed and said, Yes, without these Express findings, reversal is required. It's per se reversal. And that made me wonder, well, well, what the heck did the Supreme Court do in FP versus Monier when it said that the failure to make a required statement of decision finding was not per se reversible, but the failure to make a required Family Code 3044, finding is per se, reversible. And interestingly, the Abdel Kader panel did not, never even mentioned the FP Monier case, so it seems like, and it's a published case. It has been followed by another case, Hutchins and distinguished by another case, marriage of burger. We'll cite all those in the in the show notes. We actually talked about these in a episode a couple of weeks ago, Jeff and it so happens that the that the attorney in in Abdel Kader reached out to us, and we're going to be we're going to have a conversation with him about his frustrations with the Abdel Kader case coming up soon. Here. What do you think about this? Jeff, that there are these different cases that some find that that there is a requirement to make findings and it's per se reversible if the court fails to make the findings. In other cases that say, No, it's not per se reversible, you still have to show a miscarriage of justice. Well,
Jeff Lewis 14:20
let me just say this. In family law custody disputes, they are so close the evidence can be so compelling and so close that I think the trial courts really benefit from having assumptions imposed upon them by the legislature over like in a closed case, the tie goes this way or the other. It's helpful for the trial courts. And I think unless I misheard you, I think you could harmonize these cases in that the case Abraham with the presumption is very different than the other cases involving statements of decisions without a presumption, that the presumption imposes certain obligations on the trial court to. Really make findings, as opposed to the generic well, you should have a statement of decision, so maybe, perhaps that's the way you harmonize them. Is the existence of a rebuttable presumption, the Evidence Code Section bearing on what you do with presumptions in the absence of evidence, etc. Yeah,
Tim Kowal 15:17
that's a good point. The fact that of a rebuttable presumption does it does affect the analysis, but I still don't think you get from there to per se reversal, reversal. I think you still have to look at substantial evidence to see if there was substantial evidence to rebut that presumption. It makes it more difficult if you don't have those findings. So I just still don't think you get to per se reversible error. But yeah, you're definitely right that the that the presumptions do affect the analysis. And I wonder if you get to something like a Remember, there used to be a debate whether when the when the standard of proof in the trial court was clear and convincing evidence that standard melted away when you got to appeal, and it was the same old, substantial evidence that applies to everything else until you had conservatorship of OB that said, No, you still have to factor in the clear and convincing evidence standard even when you're doing substantial evidence review. Yeah,
Jeff Lewis 16:17
maybe this Abraham case needed to make a clear and explicit finding that the rebuttal presumption make this case distinguishable from the other cases. Yeah.
Tim Kowal 16:28
What one other case to throw into the mix here for the for the similar point, is marriage of Steiner. This, this was a 2004 case, but this, comes up if you're in a if you're in a property division suit. So we're still in the family law context. Jeff, so if one party, if the parties are trying to divide their assets, they have to make financial disclosure so that you know, you know what each side has got time, what's that, what their income is, and that is so important to the determination of a property division that the legislature has declared that under family code 2107 D that if disclosures are inadequate or untimely, that defect is reversible, per se. So here we're coming full circle back to the Racial Justice Act issue, where the legislature is is dictating to the courts this error is always a miscarriage of justice, and so specifically, Family Code 2107 D says, If a court enters a judgment when the parties have failed to comply with all the disclosure requirements of this chapter, the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error, or to put that in the in the affirmative, that error is a miscarriage of justice. It's prejudicial error, and again, when it says shall set aside the judgment that's directly contrary to the Constitution that says the court shall not set aside a judgment unless there's a finding of miscarriage of justice. Yeah, and I know the marriage, the marriage of Steiner case, went on to say that, no, you the legislature doesn't get to sidestep that. It cited Article Six, Section 13 of the Constitution that we've been talking about requiring a finding of miscarriage of justice and the degree to the degree that family code 2107 is read for the proposition that a judgment must be set aside or a new trial granted solely because of a failure to exchange financial final declarations of disclosure. It is not consistent with our state's constitution. Consequently, the failure to provide the final disclosure required by section 2105 does not constitute a get a new trial free card. Yeah,
Jeff Lewis 18:47
yeah. Interesting. I wonder. You know, the case involving the Racial Justice Act is relatively new. Came out in early April. I wonder if there'll be any requests out there to either de publish it or supporting, I wonder if there'll be some amicus briefs supporting California Supreme Court taking review of the case.
Tim Kowal 19:09
Yeah, yeah. I think it's likely that it, that it may be taken up on review. Justice Egan had pointed out that that in that case, the Simmons case, apparently there was not, there was not a dispute about about the final outcome. So no party requested, no file. Party filed a petition for review. But that doesn't seem to be the case in the Oreo Steggy case, and so we should, you know, we may be looking out to see if a party files a petition for review, and it'll be curious to see whether the Supreme Court decides to take it up, or maybe, because you say, Jeff, it's, it is a new it is a new statute. Maybe it'll wait for for more opinions to percolate before deciding to take it up. Yeah, yeah. All right. So so in. Any upshots that you take away from from these cases, Jeff, where we talked about, we have the family code disclosure requirements that say where the legislature is determined that this is per se reversible error, and the courts have said you don't get to do that. And then the Racial Justice Act that has done, you know, apparently said the same thing. And the court, the courts so far, have gone along with it.
Jeff Lewis 20:22
Yeah, you know, I guess if you're embedded appellate counsel or whispering in the air of trial counsel, or if you're a trial counsel and you're doing jury selection and the trial court has not made an explicit finding using the magic words from the statute, you might have a pocket brief ready to go to suggest that the court actually use those magic words on the record, not in chambers, to ensure that your final outcome is final,
Tim Kowal 20:50
yeah, yeah, that's that's important. Justice Gilbert did chide the majority in the Oreo Steggy case for requiring that litigants use or the requiring that the trial courts use the talismanic phrase from the statute. Well, the nice thing though, about the majority opinion is that at least there is a talismanic phrase. There is an easy way to make sure that you're in compliance with the Racial Justice Act, and you just cite the cite that statute and and move right along,
Jeff Lewis 21:20
make a laminated card of that language, and he pass it out to trial judges. Start of jury selection. Is
Tim Kowal 21:26
there a way if, if your trial judge is not familiar with the Oreo Steggy case, is there, is there a way to signal to the judge your honor, thank you for for overruling if you're the prosecution, thank you for overruling the objection. But could you overrule it this way and say these words?
Jeff Lewis 21:44
Yeah. I mean, that's why God invented pocket briefs, so you could attach new case law to it and help educate and bring trial judges up to speed. But
Tim Kowal 21:51
does it? Does it make it sound like it's ad hoc that? Well, I didn't really make that finding, but if I had to make that finding, I'm going to do it. Is there a way to pre educate the judge about about the requirement? I don't
Jeff Lewis 22:02
know you could first see these kinds of challenges coming up, but I don't know that if you are educating the judge in the moment that that would make the decision any more susceptible to reversal on appeal.
Tim Kowal 22:13
Yeah, all right, Jeff, well, we're just going in and out with this case today. We will, we'll come back next week with some more cases and tidbits and advice for for trial and appellate attorneys. If you have suggestions for future episodes, please email us at [email protected], and in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis 22:37
See you next time
Announcer 22:38
you have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes visit the California appellate law podcast website at Cal podcast.com that's c, a, l, podcast.com thanks to Jonathan Caro for our intro. Music, thank you for listening and please join us again. Music,
