Second District Rules on Review for Objections to Peremptory Challenges Under Code of Civil Procedure Section 231.7

By Dora A. Corby

In a case of first impression, California’s Second District Court of Appeal in People v. Hinojos (2025; No. B325167) recently held that when a trial court sustains an objection to a peremptory challenge under Code of Civil Procedure section 231.7, the appeals court will review the ruling de novo, and defer to the trial court’s factual findings if they are supported by substantial evidence. 

The case offers guidance to both criminal and civil practitioners as California moves away from the longstanding Batson/Wheeler test to evaluate peremptory juror challenges for discrimination.

Trying to seat an unbiased jury is always a challenge. While one juror may be an ideal juror for a defense, that same juror may be objectionable in the eyes of the prosecution. But neither side can use a peremptory challenge to exclude a potential juror just because of their race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation.

Prior to the enactment of Code of Civil Procedure section 231.7, courts used the three-step test formulated from Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 when a party objects to the opposing party’s peremptory challenge on the basis of race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation. Under the Batson/Wheeler test:

1. The objecting party must make a prima facie case showing that the totality of the facts inferred a discriminatory purpose.
2. If that showing was made, the party seeking to use the peremptory challenge must present race-neutral justifications for the challenge.
3. If race-neutral explanations are provided, the court then decides whether the objecting party has proven purposeful discrimination.

However, the California Legislature found that peremptory challenges were still largely used in a discriminatory manner despite the Batson/Wheeler test. To address this, the Legislature enacted Code of Civil Procedure section 231.7 in 2020. (Stats. 2020, ch. 318, § 1, subd. (b).) Code of Civil Procedure section 231.7 subsections (b) and (c) allow a party to object to a discriminatory use of a peremptory challenge, and require the party exercising the peremptory challenge to state the reason for using the challenge.

As the Second District noted in Hinojos, under the Batson/Wheeler test, the ultimate question for the trial court was whether there was purposeful discrimination. And under this test, an appellate court reviewed a sustained objection to a peremptory challenge under a deferential standard – substantial evidence.

But now, under Code of Civil Procedure 231.7, the trial court will sustain an objection to a peremptory challenge if it determines “there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation … as a factor in the use of the peremptory challenge.” (Code Civ. Proc., § 231.7, subd. (d)(1).)

Unlike subsection (j) of Code of Civil Procedure section 231.7, where the Legislature expressly states a denied objection to a peremptory challenge reviewed de novo with the trial court’s express factual findings reviewed for substantial evidence, the statute is silent as to the standard of review for a sustained objection.

In Hinojos, the Second District recognized that “the decision to sustain a section 231.7 objection presents a mixed question of law and fact on appellate review.” The ultimate question in the trial court of whether, in light of the circumstances, there is a substantial likelihood that an objectively reasonable person would view the challenge as based on improper discrimination requires applying a legal standard to specific facts, the court reasoned in an opinion authored by Judge Michael P. Pulos. Citing Ghirardo v. Antonioli (1994) 8 Cal.4th 791, the court noted that when review requires consideration of legal concepts in the mix of facts, then de novo review or independent review is required.

In deciding to employ the same review standard to sustained objections as is required under subsection (j) for denied objections, the court determined that in other cases involving a totality of the circumstances and presenting a mixed question of law and fact on review, a de novo standard of review applies, and the appellate court will give deference to the trial court’s factual findings if supported by substantial evidence.

In January 2026, Code of Civil Procedure section 231.7 will also be applicable to civil cases, and the Batson/Wheeler test will no longer apply in California.

This article was originally published by the legal news service of Continuing Education of the Bar (CEB). To read more news and analysis from CEB, register for a free account at research.ceb.com/news.

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