Can a Lawyer Strike All Young People from a Jury Panel?
A jury of your peers is a cross section of your community. Laws prevent the striking of people based upon race, gender, country of birth but what about age. If you trust political polls, age is one of the major factors that control how a person approaches key political issues. So if a prosecutor strikes all young people is this a violation of the right to a fair trial in front of a jury of your peers? At least one court recently said "NO"!
In a decision that's sure to spark debate on jury diversity and implicit bias, the California Court of Appeal, Second District, Division Six, handed down a clear ruling on October 15, 2025, in People v. Shawn Otis Hernandez (Case No. B333071). The court affirmed Hernandez's conviction for burglary-related crimes, holding that "youth" (specifically, jurors under 25) does not qualify as a protected characteristic under anti-discrimination laws for peremptory challenges. This means prosecutors—and defense attorneys—can still strike young potential jurors without triggering the same scrutiny as strikes based on race, gender, or ethnicity. While the opinion clarifies permissible tactics in voir dire, it also highlights the limits of California's push to curb biased jury selection. For trial lawyers, it's a roadmap; for advocates of broader inclusivity, a call to expand protections.
The Midnight Heist: Facts That Fueled the Conviction
The case stemmed from a botched early-morning burglary attempt in Ventura County. On a quiet night in 2022, Shawn Otis Hernandez, then 28, teamed up with two accomplices for what they thought would be an easy score: breaking into the home of J.C., a resident asleep with his family. Around 2:40 a.m., security cameras captured the trio lurking outside, prying at doors and windows with tools. One suspect dropped a glove; DNA later linked it to Hernandez. His wallet turned up in a getaway car, cell phone pings placed him at the scene, and rideshare records sealed the timeline. Text messages among the group bragged about prior hits, including a stipulation that Hernandez had committed a similar burglary just weeks earlier.
Prosecutors charged Hernandez with conspiracy to commit first-degree residential burglary (Penal Code §§ 182(a)(1), 459; count 1) and attempted first-degree residential burglary (§§ 664, 459; count 2). After a jury trial, he was convicted on both counts and sentenced to 17 years in state prison—a stiff penalty reflecting his prior record and the crime's nighttime terror factor. But the appeal wasn't about the botched break-in; it zeroed in on jury selection, where Hernandez claimed the prosecution unfairly weeded out the young.
Voir Dire Drama: Striking the Young and the Objection That Followed
Jury selection unfolded routinely until the prosecution used peremptory challenges—those gut-feel strikes allowed without stated cause—to excuse four prospective jurors, all under 25: J.R.R. (22, retail worker), W.R. (21, student), C.S. (24, unemployed), and M.R. (23, sociology major). Defense counsel immediately objected, arguing the strikes violated Code of Civil Procedure § 231.7, California's statute banning peremptory challenges based on protected traits like race or gender. But here's the twist: Counsel cited only the jurors' youth as the basis, not their ethnicity (several had Hispanic surnames) or gender (all male).
The trial judge, applying § 231.7's procedures, required the prosecutor to justify the strikes. She did: J.R.R. faced job hardship from jury duty; W.R. seemed inattentive and fidgety; C.S. had vague unemployment issues; M.R.'s coursework in restorative justice raised doubts about her views on punishment. Satisfied these were race-neutral, the judge overruled the objection. Trial proceeded, the jury convicted, and Hernandez appealed, claiming error in allowing the youth-based strikes. He also argued his lawyer botched it by not raising ethnicity/gender and sought ineffective assistance relief.
The Appeal's Core Clash: Is Youth a "Cognizable Group" for Discrimination Claims?
The appellate panel—Justices Maria E. Stratton (author), Steven M. Benchwarmer, and Kenneth R. Yegan—wasted no time dismantling Hernandez's main argument. Peremptory challenges have long been scrutinized under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258, which ban strikes rooted in racial, ethnic, or similar group bias to protect fair cross-sections and equal protection rights. California upped the ante with § 231.7 (2020), codifying a presumption of bias for strikes against race, ethnicity, gender, sexual orientation, national origin, or religion (or perceived membership therein).
But youth? Not even close. The court held: "Youth, alone, is not a cognizable group under section 231.7." Drawing from precedents like People v. Henderson (1990) 225 Cal.App.3d 1129 and People v. Sims (1993) 5 Cal.4th 405, it explained that young people don't form a "cognizable class" for cross-section purposes—lacking the shared, identifiable traits that define protected groups. Equal protection doesn't shield them either; the 14th Amendment targets suspect classifications like race, not age.
The opinion drilled down on why: Section 231.5 (banning strikes based on traits in Gov. Code § 11135) ties "age" to protections for those over 40 under the Fair Employment and Housing Act (Gov. Code § 12926(b)), mirroring federal laws like the Age Discrimination in Employment Act (29 U.S.C. § 631(a)). Youth strikes, by contrast, are fair game as "race-neutral reasons," per People v. Lomax (2010) 49 Cal.4th 530. The prosecutor here gave non-stereotypical justifications—like inattention (§ 231.7(e)(11)) or job conflicts (§ 231.7(g)(1))—unlinked to ageist tropes.
The trial court's mistake? Treating the youth objection under § 231.7 at all, which imposed undue scrutiny. But it was harmless error: No relief under Batson/Wheeler or § 231.7, since youth isn't covered as a protected group.
Daniel Horowitz is an expert in criminal defense. If you are facing criminal charges, call Daniel's office for an initial interview. (925) 283-1863
