Lenix

Here we determine whether an appellate court must perform a comparative juror analysis for the first time on appeal to evaluate whether the advocate’s stated reasons for peremptorily challenging prospective jurors are truthful or pretextual. (See People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ] (Batson).) The United States Supreme Court conducted such a comparative analysis for the first time on appeal in Miller-El v. Dretke (2005) 545 U.S. 231 [ 162 L.Ed.2d 196 , 125 S.Ct. 2317 ] (Miller-El II) 1 and again recently in Snyder v. Louisiana (2008) 552 U.S. 472 [ 170 L.Ed.2d 175 , 128 S.Ct. 1203 ] (Snyder). When read in their entirety, those cases stand for the unremarkable principle that reviewing courts must consider all evidence bearing on the trial court’s factual finding regarding discriminatory intent. Comparative juror analysis is evidence that, while subject to inherent limitations, must be considered when reviewing claims of error at Wheeler/Batson’s third stage when the defendant relies on such evidence and the record is adequate to permit the comparisons.…

I concur in the majority opinion. I write separately, however, to emphasize two points. First, the United States Supreme Court appears to have reserved the issue whether reliance on comparative juror analysis may be deemed procedurally defaulted if not raised at trial. Second, if the high court were to subsequently hold that state courts may enforce a procedural default rule as such, nothing in today’s majority opinion would preclude this court from doing so in the future.

In Snyder v. Louisiana (2008) 552 U.S. 472 [ 170 L.Ed.2d 175 , 128 S.Ct. 1203 ] (Snyder), the United States Supreme Court conducted a comparative juror analysis as part of its evaluation of the petitioner’s claim that the prosecution impermissibly used a peremptory challenge to exclude a prospective juror on the basis of race. (Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ] (Batson)] see People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler).) In conducting the analysis, despite the fact that none had been requested or performed at trial, the high court stated in a footnote; “The Louisiana Supreme Court did not hold that petitioner had procedurally…

I agree with the majority that appellate courts should, under appropriate circumstances, engage in comparative juror *634 analysis as a means of detecting the discriminatory use of peremptory challenges in violation of People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] and Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ], Miller-El v. Dretke (2005) 545 U.S. 231 [ 162 L.Ed.2d 196 , 125 S.Ct. 2317 ] and Snyder v. Louisiana (2008) 552 U.S. 472 [ 170 L.Ed.2d 175 , 128 S.Ct. 1203 ] (Snyder) teach us implicitly that however problematic it may be to conduct such comparative analysis for the first time on appeal, it is even more problematic to categorically refuse to conduct such analysis, thereby permitting some Wheeler/Batson violations to go undetected. Indeed, because those who discriminate rarely admit to discrimination, comparative analysis has been widely used in a variety of fields to ferret out the unlawful discrimination that hides behind pretext. (See, e.g., Schwemm, Housing Discrimination: Law and Litigation (2007 ed.) § 32.2, pp. 32-4 to 32-5 [noting the common use of Black and White “testers” to determine whether Black renters…

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General, Donald de Nicola, Deputy State Solicitor General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Stan Cross, Janis S. McLean, David A. Rhodes, Janet E. Neeley and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

Here we determine whether an appellate court must perform a comparative juror analysis for the first time on appeal to evaluate whether the advocate's stated reasons for peremptorily challenging prospective jurors are truthful or pretextual. (See People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] ( Wheeler ); Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ] ( Batson. ) The United States Supreme Court conducted such a comparative analysis for the first time on appeal in Miller-El v. Dretke (2005) 545 U.S. 231 [ 162 L.Ed.2d 196 , 125 S.Ct. 2317 ] ( Miller-El II ) [1] and again recently in Snyder v. Louisiana (2008) 552 U.S. ___ [ 170 L.Ed.2d 175 , 128 S.Ct. 1203 ] ( Snyder ). When read in…