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Batson/Wheeler Motions During Jury Selection

Can a Batson/Wheeler motion address juror challenges based on factors other than race?
Last month, the Second District Court of Appeal published a decision addressing this issue. To find out what they decided, watch the video and read my case summary below.

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Unzueta v. Akopyan (2022) _ Cal.App.5th _ , 2022 WL 16748570: The Court of Appeal reversed the judgment for defendant, following a jury trial, in plaintiff’s medical malpractice action. This was the second appeal in the case. In the first appeal the Court of Appeal held the trial court had erred in denying plaintiff’s Batson/Wheeler motion under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) challenging defendant’s peremptory challenge of six Hispanic potential jurors, and not requiring defense counsel to offer nondiscriminatory reasons for his first four challenges. On remand, the trial court elicited the defense attorney’s justifications for the six prospective jurors at issue. As to two of the jurors, the defense attorney asserted they were excused because they had a family member who was disabled, and the attorney feared the family member’s disability would cause the juror to be biased in favor of plaintiff who alleged she became disabled due to defendant doctor’s professional negligence. The trial court found the justifications were “race-neutral,” and after analyzing all the challenges, it again denied the Batson/Wheeler motion and reinstated the judgment for defendant. In this appeal, the Court of Appeal ruled the trial court erred in denying the Batson/Wheeler motion upon remand as to the two prospective jurors because it was based upon protected characteristics. Historically Batson/Wheeler motion rulings were based upon whether the challenge was race neutral. However, in 2015 the Legislature expanded the scope of cognizable groups protected under Batson/Wheeler by its enactment of Assembly Bill No. 87 (2015-2016 Reg. Sess.) § 1 (Assembly Bill 87), effective January 1, 2017, which amended Code of Civil Procedure section 231.51 to specify by reference to Government Code section 11135 that peremptory challenges cannot be used to excuse prospective jurors on the basis of their sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental and physical disability, medical condition, genetic information, marital status, or sexual orientation. Nor can a peremptory challenge be based on the perception the juror possesses one of these characteristics or because of the juror’s association with someone perceived to have one of these characteristics. (C.A. 2nd, November 7, 2022.)

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