Anthony Castellanos v. Larry Small

Filing

FILED OPINION (STEPHEN R. REINHARDT, JOHN T. NOONAN and MARY H. MURGUIA) REVERSED AND REMANDED. Judge: MHM Authoring. FILED AND ENTERED JUDGMENT. [9233221]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANTHONY CASTELLANOS,
Petitioner-Appellant,
v.

No. 12-55783
D.C. No.
2:08-cv-08177JVS-DTB

LARRY SMALL, Warden,
Respondent-Appellee.
OPINION

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
June 2, 2014—Pasadena, California
Filed September 9, 2014
Before: Stephen Reinhardt, John T. Noonan,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia

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CASTELLANOS V. SMALL
SUMMARY*

Habeas Corpus
The panel reversed the district court’s judgment denying
an application for habeas corpus, and remanded with
instructions to grant the application, in a case in which the
petitioner asserted that the prosecution engaged in purposeful
discrimination in violation of Batson v. Kentucky when it
exercised four peremptory strikes against Hispanic
venirepersons.
After reviewing the state court’s determination of no
purposeful discrimination with respect to the striking of
Venireperson 4968, together with a side-by-side comparison
of the venirepersons at issue and the empaneled jurors, and
other relevant circumstantial and direct evidence of intent to
discriminate, the panel concluded that the prosecutor’s
factually-erroneous stated reason for striking Venireperson
4968 – that she didn’t have children – was pretextual. The
panel concluded that the petitioner’s state court proceedings
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented,
28 U.S.C. § 2254(d)(2), and that the district court therefore
erred in denying the petitioner’s application for habeas relief.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Gia Kim (argued), Deputy Federal Public Defender; Sean K.
Kennedy, Federal Public Defender, Los Angeles, California,
for Petitioner-Appellant.
Scott Taryle (argued), Supervising Deputy Attorney General;
Timothy M. Weiner and Stephanie C. Brenan, Deputy
Attorneys General; Lance E. Winters, Senior Assistant
Attorney General; Dane R. Gillette, Chief Assistant Attorney
General; Kamala D. Harris, Attorney General, Los Angeles,
California, for Defendant-Appellee.

OPINION
MURGUIA, Circuit Judge:
Petitioner Anthony Castellanos was convicted in
California state court of murder, assault with a firearm, and
street gang solicitation. On direct appeal, the California
Court of Appeal affirmed Castellanos’s convictions,
concluding that the prosecution had not engaged in
purposeful discrimination in violation of Batson v. Kentucky,
476 U.S. 79 (1986), when it exercised four peremptory strikes
against Hispanic venirepersons. The district court denied
Castellanos’s application for habeas relief. Because we
conclude that Castellanos’s state court proceedings “resulted
in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented,”
28 U.S.C. § 2254(d)(2), we reverse the district court’s
judgment and remand with instructions to grant Castellanos’s
application.

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I.

Petitioner Anthony Castellanos, who was 17 years old at
the time of the incident giving rise to this case, was at his
apartment with his 11-year-old and 12-year-old neighbors,
Joey and Nicky. Castellanos was trying to recruit Nicky to
join his gang, the King Kobras, but Nicky had previously
refused. Castellanos, who had been cooking French fries in
the kitchen, walked into the living room where Nicky was
sitting on the couch, pulled a gun from his waist, and pointed
it at Joey and Nicky. Joey ducked, fearful of what might
happen. Castellanos then turned and pointed the gun directly
at Nicky, put his finger on the trigger, and said, “What do you
think about this?” He fired, shooting Nicky in the head.
Castellanos was charged in Los Angeles County Superior
Court with murder, see Cal. Penal Code § 187(a), assault with
a firearm, see Cal. Penal Code § 245(a), and street gang
solicitation, see Cal. Penal Code § 186.26(a). On the murder
and assault charges, the government’s information alleged
that Castellanos had personally used a firearm, and on the
assault charge, it alleged that he committed the offense for the
benefit of a criminal street gang. Castellanos pleaded not
guilty to all charges and proceeded to a jury trial.
A.
Voir dire took place in March 2005. After the
venirepersons were introduced to the parties and the potential
witnesses, the prosecutor began questioning the
venirepersons. He started by asking each venireperson to
answer “the questions on the board,” which appear to have
been

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(1) Where do you live?
(2) What is your occupation?
(3) Are you married; if so, what is your
spouse’s occupation?
(4) Do you have adult children; if so, how
many?
(5) Have you ever sat on a jury?
In total, 29 venirepersons were questioned.1 In some
instances, after a venireperson had answered the questions on
the board, the prosecutor would follow up by asking
additional questions, such as the occupations of the
venireperson’s adult children, the type of case (civil or
criminal) on which the venireperson sat as a juror, and
whether that jury had reached a verdict.
After each venireperson had answered the questions
directed specifically to him or her, the prosecutor posed
additional questions to the group. Those questions included,
as is relevant to this appeal, (1) whether any venireperson was
“related to or . . . ha[d] close friends in law enforcement,”
(2) whether any venireperson or a relative “ha[d] . . . ever
1

The prosecutor began by questioning 18 jurors, 12 of whom were
seated in the main jury box and 6 of whom were seated in the area
designated for alternate jurors. If a venireperson seated in the main jury
box was excused, the court moved a venireperson from the area
designated for alternate jurors to replace the excused venireperson inside
the box. After all 6 venirepersons seated in the alternate juror area had
been either excused or moved, the court called 6 more venirepersons to fill
their seats and answer the same questions.

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been victims of a crime,” (3) whether any venireperson or
relative had “ever been charged with or arrested for an
offense,” and (4) whether any venireperson was “familiar
with gangs or criminal street gangs.” The prosecutor
concluded by asking whether “there [is] anything that you
believe is important to disclose at this time that has not yet
been asked that would affect the impartiality or sitting as a
juror on this case?” Over the course of questioning, the
prosecutor elicited the following information from each of the
venirepersons at issue in this appeal.
Venirewoman 4968 (Seat 2)
Venirewoman 4968 was a Hispanic female from Santa Fe
Springs, California. She worked for a bread company. At the
time of trial, she was divorced and had two adult children.2
One of her children—her daughter—did not work at the time,
and her son worked for “export magazines” in “[a] lot of
cities.” Her ex-husband worked for Boeing, and she had
never before served on a jury.
Venireman 3693 (Seat 5)
Venireman 3693 was a Hispanic male from La Puente,
California. He worked as a salesman for Bernard and Sons,
an electrical product retail company. His wife worked as a
day care provider for La Puente Unified School District. At
2

There is some ambiguity in the transcript as to whether Venirewoman
4968 had two children (both adult) or four children (two adult and two
“kids”). Venirewoman 4968 initially stated, “I have two girls, kids.” The
prosecutor responded by asking, “And what are the occupations of your
adult children, your adult children?” Venirewoman 4968 answered, “My
daughter, she doesn’t work. And my son works . . . for the [export
magazines].” The ambiguity does not affect the outcome of this case.

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the time of trial, he had no adult children and had never
before sat on a jury.
Venireman 6963 (Seat 12(A))
Venireman 6963 was from Montebello, California, and
worked as a store manager for a Van’s store. His wife
worked as an office manager for an optometrist’s office. He
had once before sat on a jury in a criminal case; the jury had
reached a verdict in that case. Venireman 6963 did not
answer the question whether he had any adult children, and
the prosecutor did not follow up on his failure to do so.
During group questioning, Venireman 6963 informed the
court that his “brother was a gang member for a long time,”
and that “now [his brother is] a pastor and goes to jail now
and helps.” He also stated that he did not think that would
“cause [him] not to be a fair or impartial juror in this case.”
Venireman 5816 (Seat 12(B))
Venireman 5816 was a Hispanic male who worked for
APL Logistics in West Covina, California. He was single,
did not have adult children, and had never before sat on a
jury. During group questioning, he informed the court that he
“ha[s] family and friends in gangs.” He did not think that
would affect his ability to be impartial in this case.
Each party was allowed twenty peremptory strikes. See
Cal. Civ. Proc. Code § 231(a). Twelve members of the venire
occupied the main jury box at any given time; a new
venireman would enter the main jury box each time another
was excused. At the outset, at least five of the twelve
venirepersons seated in the main jury box were Hispanic.
The prosecutor used six peremptory strikes, four of which

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were against the Hispanic venirepersons described above,
before defense counsel made the Batson/Wheeler motion at
issue in this appeal.3 At the time of the motion, seven of the
twelve venirepersons seated in the main jury box were
Hispanic, and the prosecution had 14 peremptory strikes
remaining.
When defense counsel made the Batson motion, he
contended that “the prosecutor [was] exercising his
challenges to exclude mainly people of Hispanic descent.”
The parties and the court then engaged in the following
colloquy.
[DEFENSE COUNSEL]: [The prosecutor]
exercised – he excluded juror No. 2, was a
female Hispanic. He excluded juror No. 5,
who was a Hispanic male. He excluded juror
No. 12, who was a Hispanic male. He
excluded juror No. 1, 2, 3, 4 people based on
race, two Anglos, and I will submit the matter.
THE COURT: All right. People.
[PROSECUTOR]: Your Honor, the way the
current law is, the Court has to find a prima
facie showing.

3

A Wheeler motion, established in People v. Wheeler, 22 Cal. 3d 258
(1978), is the California analogue of a motion under Batson v. Kentucky,
476 U.S. 79 (1986). See Aleman v. Uribe, 723 F.3d 976 (9th Cir. 2013),
cert. denied, 134 S. Ct. 903 (2014). Throughout this opinion, we refer to
Castellanos’s motion as a Batson motion, although technically it was made
under Wheeler.

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THE COURT: Well, there are four Hispanics
excused.
[PROSECUTOR]: The last juror had friends –
THE COURT: He had friends in gangs.
[PROSECUTOR]: In gangs.
THE COURT: That’s the reason? Okay.
[PROSECUTOR]: Let’s see.
individuals?

What other

THE COURT: Well, No. 2 was 4968. Was
that a Hispanic female?
[DEFENSE COUNSEL]: Yes.
THE COURT: 4968?
[PROSECUTOR]: I have that as a female
white.
THE COURT: 4968 was the name.
[DEFENSE COUNSEL]: She was Hispanic.
....
[PROSECUTOR]: 4968 – I thought the
person was white, but regardless, the person,
she didn’t have any children. The victim in
here is going to be a child testifying, so I want

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jurors to understand children, so I’ve kicked a
lot of jurors who don’t have children, and she
had no children.
As far as the –
Which one is the next one that is being
contested?
THE COURT: I guess 5816, 12.
[DEFENSE COUNSEL]: No. 5 as well.
[PROSECUTOR]: Is the fifth one? The fifth
one I kicked, was the one in gangs.
THE COURT: No. He’s talking about juror
No. 5, 3693.
[DEFENSE COUNSEL]:4 This person had
trouble following didn’t appear to be paying
attention when I was asking questions and
stuff. This was the person that was up on –
THE COURT: On top.
[PROSECUTOR]: Right. And that person
also had no children, but that was more
because the person didn’t appear to be
following directions, was kind of sitting there,

4

The parties dispute whether the transcript is correct that defense
counsel, as opposed to the prosecutor, made this statement.

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and that’s why I had to ask him specifically,
“Are you shaking your head ‘yes’ or ‘no’?”
What’s the next one? Is there another?
[DEFENSE COUNSEL]: I think juror No. 12,
we’ve already discussed that. That’s it.
THE COURT: All right.
denied.

The motion is

The court then continued with voir dire until the parties
accepted the empaneled jury. In the end, the prosecution had
exercised 12 of its 20 peremptory strikes, leaving 8 unused.
After the jury was empaneled, the court noted that, “of the
twelve [empaneled] jurors, seven are Hispanics, there are four
Caucasians, and one Asian.”
B.
A jury convicted Castellanos of second-degree murder,
assault with a firearm, and street gang solicitation. He was
sentenced to 25 years to life in state prison. On direct appeal
of his judgment of conviction, Castellanos assigned error to,
among other things, the state trial court’s order denying his
Batson motion. The California Court of Appeal affirmed the
convictions in a written opinion, noting, with respect to the
Batson issue, that “[t]he trial court’s determination is entitled
to considerable deference because of the court’s knowledge
of local conditions and local prosecutors, powers of
observation, understanding of trial techniques and judicial
experience.” People v. Castellanos, 2007 Cal. App. Unpub.
LEXIS 7397, at *14 (citing People v. Trevino, 55 Cal. App.
4th 396, 402 (1997)). The court of appeal held that

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Castellanos had “failed to demonstrate error in the trial
court’s ruling.” Id. The California Supreme Court denied
Castellanos’s petition for review. People v. Castellanos,
2007 Cal. LEXIS 13708, at *1.
C.
In December 2008, Castellanos timely applied for habeas
relief in the U.S. District Court for the Central District of
California.5 After directing the parties to submit briefing on
the question whether Castellanos was entitled to an
evidentiary hearing on his Batson claim, the magistrate judge
issued an order stating that the California Court of Appeal’s
decision was “contrary to” clearly established federal law and
that, as a result, AEDPA did not preclude an evidentiary
hearing. See 28 U.S.C. § 2254(d)(1) (prohibiting habeas
relief unless the state-court adjudication of the applicant’s
claim “resulted in a decision that was contrary to . . . clearly
established Federal law, as determined by the Supreme
Court”); Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2010)
(prohibiting an evidentiary hearing under § 2254(e) unless
§ 2254(d) is satisfied). In the same order, the court invited
the State to “augment the record by providing the
prosecutor’s actual reasons for dismissing Juror Nos. 4[9]68
and [36]93 to avoid the adverse inference that may flow from
the record as it stands,” and invited Castellanos to “present
additional statistical or other evidence to meet his ultimate
burden of proving discrimination.”
In response to the court’s invitation, the State submitted
a declaration from Los Angeles County Deputy District
Attorney Sean Coen, the prosecutor at Castellanos’s criminal
5

Castellanos did not seek post-conviction relief in California state court.

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trial, in an effort to more clearly explain his reasons for
striking Venirepersons 4968 and 6963. At a status conference
that took place after the State filed Mr. Coen’s declaration,
the magistrate judge granted limited discovery on “matters
relating to the jury selection process” at Castellanos’s
criminal trial. The judge then initially granted an evidentiary
hearing on those matters, but later vacated the hearing,
finding it unnecessary after the parties lodged, under seal,
records from the California Department of Motor Vehicles
(DMV) showing photographs of each venireperson. The
magistrate judge took the matter under consideration using
the parties’ pleadings, Mr. Coen’s declaration, and the DMV
records.
In his Report and Recommendation, the magistrate judge
recommended that the district court deny Castellanos’s
application for habeas relief. The judge first concluded that
the California Court of Appeal, by relying on People v.
Trevino, “applied an incorrect standard of proof.” The judge
therefore concluded, as he had before, that the state trial
court’s decision was “contrary to” clearly established federal
law, see 28 U.S.C. § 2254(d)(1), thereby permitting the court
to review de novo Castellanos’s Batson claim. Reviewing de
novo, the magistrate judge concluded that, considering the
parties’ pleadings, Mr. Coen’s declaration, the DMV records,
and the totality of the circumstances as to each excused
venireperson, the prosecutor had not acted with purposeful
discrimination in violation of Batson. The district court
accepted, with only one exception not relevant to our
resolution of this case, the findings, conclusions, and
recommendations of the magistrate judge, and denied
Castellanos’s application for habeas relief. The court granted
a certificate of appealability “with respect to [Castellanos’s]
claim that the prosecutor’s discriminatory use of peremptory

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challenges to exclude Hispanic prospective jurors violated his
federal constitutional right under the Fourteenth Amendment,
pursuant to Batson v. Kentucky.” We now consider that
claim.
II.
We review de novo a district court’s order denying an
application for habeas relief. Murray v. Schriro, 745 F.3d
984, 996 (9th Cir. 2014). We are limited, however, by the
deference required under AEDPA, which bars relief unless
the underlying state court proceedings either (1) “resulted in
a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or (2) “resulted
in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d). In
conducting our analysis under AEDPA, we must look to the
last reasoned state-court decision, Murray, 745 F.3d at 996;
where “no state-court decision furnishes a basis for the state
court’s underlying reasoning,” we must “engage in an
‘independent review of the record’ and ascertain whether the
state court’s decision was ‘objectively unreasonable,’ ” id. at
996–97 (quoting Walker v. Martel, 709 F.3d 925, 939 (9th
Cir. 2013)).
A.
We must first determine which state-court decision serves
as the basis for our review. Under AEDPA, when more than
one state court has adjudicated the applicant’s claim, we must
look to the last “reasoned” decision. Barker v. Fleming,
423 F.3d 1085, 1091 (9th Cir. 2005). Thus, a state supreme

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court’s summary denial of discretionary review, which
generally does not state a reason for that denial, is not a
“reasoned” decision under AEDPA, and we must “look
through” that unexplained decision to the last state court to
have provided a “reasoned” decision. Ylst v. Nunnemaker,
501 U.S. 797, 806 (1991).
In this case, the California Court of Appeal was the last
state court to issue a decision explaining the basis for the trial
court’s denial of Castellanos’s Batson challenge. That
decision, while it does not engage in a comparative juror
analysis of the evidence presented in the trial court, contra
Murray, 745 F.3d at 1006, is not wholly unexplained, see
Ylst, 501 U.S. at 806. It therefore constitutes the last
“reasoned” decision for AEDPA purposes and may form the
basis of our review. Cf. Jamerson, 713 F.3d at 1223, 1226
(reviewing a “reasoned” decision of the California Court of
Appeal in which the court “declined to conduct a comparative
juror analysis,” “[l]ist[ed] the reasons that the prosecutor
proffered for striking each black juror[,] and ultimately
deferr[ed] to the trial court’s independent assessment of the
prosecutor’s credibility”).
B.
We turn, therefore, to the district court’s conclusion that
the California Court of Appeal’s decision on direct appeal of
Castellanos’s judgment of conviction was “contrary to . . .
clearly established Federal law, as determined by the
Supreme Court of the United States.”
28 U.S.C.
§ 2254(d)(1). A state court decision is contrary to clearly
established federal law if it “applies a rule that contradicts the
governing law set forth in [U.S. Supreme Court] cases” or
arrives at a different result in a case that “confronts a set of

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facts that are materially indistinguishable from a decision of
[the Supreme] Court.” Williams v. Taylor, 529 U.S. 362,
405–06 (2000). If the state court applies a legal standard that
contradicts clearly established federal law, we review de novo
the applicant’s claims, applying the correct legal standard to
determine whether the applicant is entitled to relief.
Cooperwood v. Cambra, 245 F.3d 1042, 1047 (9th Cir. 2001).
The “clearly established federal law”—in other words, the
“ ‘governing legal principle or principles set forth by the
Supreme Court at the time the state court render[ed] its
decision,’ ” Xiong v. Felker, 681 F.3d 1067, 1073 (9th Cir.
2012)—central to this case is Batson v. Kentucky, 476 U.S. 79
(1986). The Batson framework is well established: First, the
defendant must make a prima facie showing of purposeful
discrimination by “showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose.”
476 U.S. at 93–94. Then, the “burden shifts to the State to
explain adequately the racial exclusion” by offering raceneutral justifications for the strikes. Id. at 94. Finally, the
court must decide, in light of the race-neutral justifications
offered by the State, whether the State engaged in purposeful
discrimination when it exercised the peremptory strike. Id. at
98. As noted, the California Supreme Court’s decision in
Wheeler is the California analogue to Batson; today, the two
are procedurally equivalent. Fernandez v. Roe, 286 F.3d
1073, 1075 (9th Cir. 2002).
When Wheeler was decided in 1978, however, it imposed
on defendants a higher burden to establish a prima facie case
of purposeful discrimination than that required under Batson.
Wheeler compelled a defendant at step one to establish a
“strong likelihood,” as opposed to a mere inference, of
purposeful discrimination on the part of the State. 22 Cal. 3d

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at 280. In Johnson v. California, 545 U.S. 162, 173 (2005),
the U.S. Supreme Court abrogated that portion of Wheeler,
holding that the Federal Constitution precludes the imposition
of such a heavy burden at step one. Thus, the clearly
established federal law existing in 2007, when the California
Court of Appeal issued its decision on appeal of Castellanos’s
judgment of conviction, was Batson as clarified by Johnson.
Castellanos contends that the district court was correct to
conclude that the California Court of Appeal’s decision was
“contrary to” clearly established federal law because the
California court cited People v. Trevino, a pre-Johnson case
applying Wheeler’s “strong likelihood” standard at Batson’s
step one. According to Castellanos, the California state
court’s mere citation to Trevino shows not only that it
“affirmed the trial court’s denial of the Batson/Wheeler
motion at step one of the Batson analysis,” but also that it
“held Mr. Castellanos to a higher standard than that required
by Batson itself.” Castellanos therefore urges us to review de
novo the California state court’s resolution of his Batson
claim.
We read the state court’s decision differently, however.
Although the California court cited Trevino, which we
acknowledge is a pre-Johnson case, it is apparent from the
state court’s decision that it did not cite Trevino for the
proposition that Castellanos attributes to it. Rather, the court
cited Trevino for the proposition that “[t]he trial court’s
determination is entitled to considerable deference because of
the court’s knowledge of local conditions and local
prosecutors, powers of observation, understanding of trial
techniques and judicial experience.” Castellanos, 2007 Cal.
App. Unpub. LEXIS 7397, at *14. Indeed, the wording the
California court used tracks, almost verbatim, the wording of

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Trevino in that respect. Because citing Trevino for the
proposition that the trial court should be afforded deference
is not contrary to clearly established federal law, cf.
Hernandez v. New York, 500 U.S. 352, 365–70 (1991), we
conclude that the state court proceedings did not “resul[t] in
a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law.” See
28 U.S.C. § 2254(d)(1).6
C.
That the California Court of Appeal’s decision was not
“contrary to” clearly established federal law does not end our
inquiry, however. “Once we conclude that the trial court has
conducted an adequate inquiry under Batson, our review must
shift from § 2254(d)(1) to a review of the reasonableness of
the state court’s factual determinations under § 2254(d)(2).”
Murray, 745 F.3d at 1006 (citing Jamerson, 713 F.3d at
1225–26).
Neither party appears to dispute that Castellanos satisfied
his burden to make a prima facie showing of purposeful
6
The California Court of Appeal’s description of the colloquy that
occurred at trial after Castellanos made his Batson motion compels the
same conclusion. That description makes clear, for example, that the
court of appeal read the trial court’s statement that “Well, there are four
Hispanics excused,” to be a statement in response to the prosecutor’s
request that the court first find that Castellanos had made the requisite
prima facie showing at Batson’s step one. See Castellanos, 2007 Cal.
App. Unpub. LEXIS 7397, at *12 (“The prosecutor noted that the trial
court needed to find a prima facie showing, and the court said, ‘Well,
there are four Hispanics excused.’ ”). At that point, the court of appeal did
not cite Trevino, nor did it need to: the court was not disposing of the case
at step one. The very fact that the court of appeal reached Batson’s step
three suggests the same.

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discrimination, as is required at Batson’s step one. After he
made that showing, the burden shifted to the prosecutor to
offer race-neutral justifications for each challenged strike.
Those justifications need not have been “persuasive, or even
plausible”; at the second step of Batson, “the issue is the
facial validity of the prosecutor’s explanation.” Purkett v.
Elem, 514 U.S. 765, 768 (1995) (internal quotation marks
omitted). The state trial court was then required, at step
three, to evaluate the “persuasiveness” of the prosecutor’s
articulated reasons, Miller-El v. Cockrell, 537 U.S. 322, 338,
339 (2003) (Miller-El I), and “determine whether the
defendant ha[d] established purposeful discrimination,”
Batson, 476 U.S. at 98. Pursuant to Batson, the trial court
was obligated to “undertake a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.” Id. at 93. “Side-by-side comparisons” of the
venirepersons who were struck and those who were
empaneled may serve as helpful “evidence tending to prove
purposeful discrimination.” Miller-El v. Cockrell, 545 U.S.
231, 241 (2005) (Miller-El II).
Where, as here, the trial court did not undertake a formal
comparative juror analysis in the first instance, we must do so
on collateral review. Murray, 745 F.3d at 1004–07. Our
analysis under § 2254(d)(2) of the state court’s order denying
Castellanos’s Batson motion is therefore twofold. See
Jamerson, 713 F.3d at 1225.
To begin, we must perform in the first
instance the comparative analysis that the
state court declined to pursue. Then, we must
reevaluate the ultimate state decision in light
of this comparative analysis and any other
evidence tending to show purposeful

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discrimination to decide whether the state was
unreasonable in finding the prosecutor’s raceneutral justifications to be genuine. In
essence, we must assess how any
circumstantial evidence of purposeful
discrimination uncovered during comparative
analysis alters the evidentiary balance and
whether, considering the totality of the
evidence, the state court’s credibility
determination withstands our doubly
deferential review.

Id. at 1225–26. Because our inquiry under § 2254(d)(2) is
limited to the “evidence presented in the State court
proceeding,” we cannot consider the post hoc justifications
offered by Deputy District Attorney Coen. See Pinholster,
131 S. Ct. at 1400 n.7.7
On review, Castellanos takes issue with the state trial
court’s determination of no purposeful discrimination with
respect to Venirepersons 4968, the Hispanic female from
Santa Fe Springs; 3693, the Hispanic male from La Puente;
and 6963, the Hispanic male from Montebello. He contends
that the California Court of Appeal’s decision on direct
appeal was “based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). Reviewing the state
court’s determination together with a “[s]ide-by-side
compariso[n]” of the venirepersons at issue and the
empaneled jurors, see Miller-El II, 545 U.S. at 241, and other,

7

We can consider the DMV records, however. See Jamerson, 713 F.3d
at 1226 (holding that Pinholster does not bar “consideration of evidence
designed to reconstruct the racial composition of the jury venire”).

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relevant “circumstantial and direct evidence of intent” to
discriminate, see Batson, 486 U.S. at 93, we agree.
We begin and end our analysis with Venirewoman 4968.8
At trial, the prosecutor stated that he struck Venirewoman
4968 because
she didn’t have any children. The victim here
is going to be a child testifying, so I want
jurors to understand children, so I’ve kicked a
lot of jurors who don’t have children, and she
had no children.
That reason, as the district court noted, is belied by the
record. Venirewoman 4968 stated, in response to the only
question that she and the other potential jurors had been
asked, that she had two adult children. The prosecutor then
asked about the occupations of her adult children, and she
answered. Thus, unless the totality of other relevant
circumstances in this case suggests a contrary conclusion, the
prosecutor’s factually erroneous reason can be construed as
pretextual. See McClaim v. Prunty, 217 F.3d 1209, 1221 (9th
Cir. 2000) (“Where the facts in the record are objectively
contrary to the prosecutor’s statements, serious questions
about the legitimacy of a prosecutor’s reasons for exercising
peremptory challenges are raised.” (citing Caldwell v.
Maloney, 159 F.3d 639, 651 (1st Cir. 1998))).
Relevant circumstantial evidence tends only to further
undermine the prosecutor’s credibility, however. A side-by-

8

Under Batson, “the elimination of even a single juror” based on race
demands a retrial. Green v. LaMarque, 532 F.3d 1028, 1029 (9th Cir.
2008).

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side comparison, for example, of Venirewoman 4968 to
members of the empaneled jury suggests that the prosecutor’s
race-neutral justification for removing Venirewoman 4968
was pretextual. Three other venirepersons who also had no
adult children—Jurors 7707, 7107, and 8243—were
ultimately permitted to serve on the jury. Moreover, one of
the empaneled jurors, Juror 0373, didn’t even answer the
question about whether he had adult children, and the
prosecutor never followed up to clarify. Cf. Miller-El II,
545 U.S. at 246 (discrediting the prosecutor where he “asked
nothing further about the influence his brother’s history might
have . . . as [he] probably would have done if the family
history had actually mattered”).
But even if the prosecutor’s credibility weren’t further
undermined by that side-by-side comparison, the prosecutor’s
question—whether the venirepersons had “adult
children”—itself lends little support for his proffered
justification. The question whether the venireperson had
“adult children” seems a rather odd way of getting at what the
prosecutor purportedly sought to identify: whether the
venireperson had experience with young children like the
child witness who planned to testify.9 If the prosecutor’s
purpose truly was to determine which venirepersons could
“understand children,” a broader initial question—for
example, “Do you have any children?”—would have better
served that purpose. See Jamerson, 712 F.3d at 1229 (noting
that the reason for a peremptory strike must be “relevant”;
that is, the prosecutor must “express a believable and
articulable connection between the race-neutral characteristic
identified and the desirability of a prospective juror”). As the
9

The victim’s brother, Joey, testified at trial. He was 12 years old at
that time.

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Supreme Court has stated, “The State’s failure to engage in
any meaningful voir dire examination on a subject the State
alleges it is concerned about is evidence suggesting that the
explanation is a sham and a pretext for discrimination.”
Miller-El II, 545 U.S. at 246.
Two additional pieces of circumstantial evidence are
relevant to our analysis of the prosecutor’s decision to strike
Venirewoman 4968. First, as the California Court of Appeal
noted in its opinion, the state trial court observed that “[i]t
appears . . . that of the twelve jurors, seven are Hispanics,
there are four Caucasians, and one Asian.” Castellanos,
2007 Cal. App. Unpub. LEXIS 7397, at *14 n.9. Our cases
have acknowledged that the composition of the empaneled
jury is relevant to the Batson inquiry. See Turner v.
Marshall, 121 F.3d 1248, 1254 (9th Cir. 1997). Those cases
have also cautioned, however, that that fact, without more, is
insufficient to overcome the prima facie showing of
purposeful discrimination that Castellanos already made, and
cannot “salvage [the prosecutor’s] discredited justification.”
See id. (“[A]lthough the fact that the prosecutor accepted four
African Americans on the jury may be considered indicative
of a nondiscriminatory motive, it is not dispositive. Where
the prosecutor’s explanation for striking a minority juror is
unsupported by the record, empaneling other minority jurors
will not salvage her discredited justification.”).
The second piece of evidence is the fact that the
prosecutor exercised only 12 of his 20 total peremptory
strikes, leaving 8 unused. We have previously held that “the
willingness of a prosecutor to accept minority jurors weighs
against a finding of a prima facie case.” United States v.
Chinchilla, 874 F.2d 695, 698 n.4 (9th Cir. 1989) (citing
United States v. Montgomery, 819 F.2d 847, 851 (8th Cir.

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1987), for its holding that the petitioner had not established
a prima facie case of purposeful discrimination when “the
government . . . could have used its remaining peremptory
challenges to strike” additional minority venirepersons but
declined to do so). Thus, where the prosecutor declines to
exercise additional peremptory strikes, permitting minority
venirepersons ultimately to serve on the jury, the prosecutor’s
doing so may properly be considered in determining whether
his earlier strikes were discriminatory. Id. But just as is the
case with the composition of the empaneled jury, the number
of peremptory strikes the prosecutor fails to use after a
Batson motion has been made cannot alone undermine a
showing of purposeful discrimination. See, e.g., Burks v.
Borg, 27 F.3d 1424, 1429 (9th Cir. 1994); Palmer v. Estelle,
985 F.2d 456, 458 (9th Cir. 1993). And, even when the
remaining strikes are considered together with the
composition of the empaneled jury, the two facts do not
overcome a petitioner’s already established showing of
purposeful discrimination. See Turner, 121 F.3d at 1254,
1250 (reversing a district court’s order denying an application
for habeas relief even where four African Americans were
empaneled and the prosecutor left unused 11 peremptory
strikes).
We acknowledge that, under AEDPA, our review is
“doubly deferential.” Jamerson, 713 F.3d at 1226. We also
acknowledge that, under Batson, intent to discriminate is an
issue of fact that “largely will turn on an evaluation of
credibility.” 476 U.S. at 98 n.21; see also Hernandez,
500 U.S. at 364–65 (“There will seldom be much evidence
bearing on [the issue of purposeful discrimination], and the
best evidence often will be the demeanor of the attorney who
exercises the challenge. . . . [E]valuation of the prosecutor’s
state of mind based on demeanor and credibility lies

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peculiarly within a trial judge’s province.” (internal quotation
marks omitted)). But where, as here, our comparative juror
analysis reveals such significant evidence of pretext, our
cases require us to conclude that the state court’s finding to
the contrary amounts to an “unreasonable determination of
the facts in light of the evidence presented.” 28 U.S.C.
§ 2254(d)(2); see also Johnson v. Vasquez, 3 F.3d 1327, 1331
(9th Cir. 1993) (“When there is reason to believe that there is
a racial motivation for the challenge, neither the trial courts
nor we are bound to accept at face value a list of neutral
reasons that are either unsupported in the record or refuted by
it. Any other approach leaves Batson a dead letter.”).
“Because just one racial strike calls for a retrial,” Kesser v.
Cambra, 465 F.3d 351, 369 (9th Cir. 2006), we need not
reach Castellanos’s arguments with respect to Venirepersons
3693 or 6963.10
III.
For the foregoing reasons, we conclude that the district
court erred in denying Castellanos’s application for habeas
relief. We therefore reverse the district court’s judgment and
remand with instructions to grant the application.
REVERSED and REMANDED.

10

Even if we were to reach the merits of Castellanos’s arguments with
respect to Venirepersons 3693 or 6963, we note that at least one would
compel the same conclusion. Although the prosecutor’s reason for
striking Venireman 6963—that he had connections to gang-related
activity—was nondiscriminatory, the reason the prosecutor offered for
striking Venireman 3693—that he “had trouble following directions in the
beginning”—lacks any support in the record.