Arciga v. Frauenheim
Filing
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ORDER Declining to Adopt 30 Findings and Recommendations in Part; Setting an Evidentiary Hearing on Petitioner's Batson Claim; and Referring Petition to the Federal Defender's Office signed by District Judge Dale A. Drozd on 06/15/2022.(Flores, E)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARIO ARCIGA,
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No. 1:15-cv-01372-DAD-BAK (EPG)
Petitioner,
v.
SCOTT FRAUENHEIM,
Respondent.
ORDER DECLINING TO ADOPT FINDINGS
AND RECOMMENDATIONS IN PART;
SETTING AN EVIDENTIARY HEARING ON
PETITIONER’S BATSON CLAIM; AND
REFERRING PETITION TO THE FEDERAL
DEFENDER’S OFFICE
(Doc. No. 30)
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BACKGROUND
Petitioner Mario Arciga is a state prisoner proceeding pro se and in propria persona with
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a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a
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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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In his pending petition, petitioner asserts that he was denied his rights under the
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Fourteenth Amendment to the U.S. Constitution when he was tried and convicted of forcible rape,
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kidnapping to commit rape, attempted lewd act on a child, and attempted kidnapping to commit a
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lewd act, in the Fresno County Superior Court in 2012, for which he is currently serving an
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indeterminate sentence of 25 years-to-life plus 19 years in state prison. (Doc. No. 1 at 1.)
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Petitioner asserts three claims for federal habeas relief in the petition pending before this federal
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court. First, petitioner seeks federal habeas relief on the ground that the state trial court violated
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his due process rights when it denied his Batson/Wheeler1 motion by finding that he had failed to
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make a prima facie showing of racial discrimination in the prosecutor’s exercise of peremptory
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challenges—using 10 of 15 strikes (66.6%) on prospective jurors with Spanish surnames. (Id. at
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28.) Second, petitioner claims that the state trial court imposed a kidnapping enhancement and
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that he was convicted of kidnapping to commit rape based on insufficient evidence. (Id. at 40.)
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Third, petitioner claims that he was convicted of attempted kidnapping to commit a lewd act
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based on insufficient evidence. (Id. at 50.)
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On June 26, 2017, the then-assigned magistrate judge issued findings and
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recommendations recommending that petitioner’s petition for federal habeas relief be denied on
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the merits as to all three of his claims. (Doc. No. 30.) Those pending findings and
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recommendations were served on all parties and contained notice that any objections thereto were
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to be filed within twenty-one (21) days from the date of service. (Id. at 22.) On July 19, 2017,
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petitioner timely filed objections to the pending findings and recommendations. (Doc. No. 31.)
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Respondent did not file any such objections or a response to petitioner’s objections, and the time
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in which to do so has passed.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, including petitioner’s
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objections, the undersigned will adopt the pending findings and recommendations, in part.
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Specifically, the findings and recommendations concerning petitioner’s claims of insufficient
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evidence to support his conviction will be adopted. For the reasons explained below, however,
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the undersigned declines to adopt the recommendation concerning petitioner’s Batson claim.
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Batson v. Kentucky, 476 U.S. 79 (1986); People v. Wheeler, 22 Cal. 3d 258 (1978). Wheeler is
considered the California procedural equivalent of Batson. See Crittenden v. Ayers, 624 F.3d
943, 951 (9th Cir. 2010). In petitioner Arciga’s underlying criminal case, the state courts referred
to his motion as a Batson/Wheeler or Wheeler/Batson motion. People v. Arciga, No. F064382,
2014 WL 1400962, at *2 (Cal. Ct. App. Apr. 11, 2014). For simplicity’s sake, in this order the
court refers to petitioner’s motion as a Batson motion and his claim in that regard as a Batson
claim.
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LEGAL STANDARD
“[A] district court shall entertain an application for a writ of habeas corpus in behalf of a
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person in custody pursuant to the judgment of a state court only on the ground that he is in
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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
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§ 2254(a). Pursuant to 28 U.S.C. § 2254(d)(1), as amended by the Antiterrorism and Effective
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Death Penalty Act of 1996 (“AEDPA”), an application for a writ of habeas corpus shall not be
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granted “with respect to any claim that was adjudicated on the merits in State court proceedings”
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unless the state court’s adjudication of that claim “resulted in a decision that was contrary to, or
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involved an unreasonable application of, clearly established Federal law, as determined by the
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Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
Clearly established federal law consists of holdings of the United States Supreme Court at
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the time of the last reasoned state court decision. Greene v. Fisher, 565 U.S. 34, 38 (2011).
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“[C]ircuit court precedent may be persuasive in determining what law is clearly established and
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whether a state court applied that law unreasonably.” Stanley v. Cullen, 633 F.3d 852, 859 (9th
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Cir. 2011) (citation omitted). However, circuit precedent may not be “used to refine or sharpen a
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general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme]
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Court has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v.
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Matthews, 567 U.S. 37, 49 (2012)). Nor may circuit precedent be used to “determine whether a
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particular rule of law is so widely accepted among the Federal Circuits that it would, if presented
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to th[e] [Supreme] Court, be accepted as correct.” Id.
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A state court decision is “contrary to” clearly established federal law “if it ‘applies a rule
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that contradicts the governing law set forth in [Supreme Court] cases’ or if it ‘confronts a set of
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facts that are materially indistinguishable from a decision of [the Supreme] Court and
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nevertheless arrives at a result different from [Supreme Court] precedent.’” Price v. Vincent, 538
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U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)).
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As to whether a state court’s decision involved an “unreasonable application of” clearly
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established federal law, “a federal habeas court may not issue the writ simply because that court
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concludes in its independent judgment that the relevant state-court decision applied clearly
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established federal law erroneously or incorrectly. Rather, that application must also be
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unreasonable.” Williams, 529 U.S. at 411. An “unreasonable application of” clearly established
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federal law “must be ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not
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suffice.” White v. Woodall, 572 U.S. 415, 419–20 (2014) (quoting Lockyer v. Andrade, 538 U.S.
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63, 75–76 (2003)) (internal quotation marks omitted). Rather, to obtain federal habeas relief, “a
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state prisoner must show that the state court’s ruling on the claim being presented in federal court
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was so lacking in justification that there was an error well understood and comprehended in
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existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562
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U.S. 86, 103 (2011).
Thus, “[o]n federal habeas review, AEDPA imposes a highly deferential standard for
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evaluating state-court rulings and demands that state-court decisions be given the benefit of the
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doubt.” Felkner v. Jackson, 562 U.S. 594, 598 (2011) (citation and internal quotation marks
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omitted). However, “when a state court employs the wrong legal standard, the AEDPA rule of
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deference does not apply.” Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir. 2001); see
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also Tarango v. McDaniel, 837 F.3d 936, 945 (9th Cir. 2016), cert. denied, 137 S. Ct. 1816
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(2017).
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Where the criteria set forth in § 2254(d)(1) is satisfied (i.e., where the state court’s
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adjudication of the petitioner’s claim “resulted in a decision that was contrary to, or involved an
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unreasonable application of, clearly established federal law”), the federal court conducts a de
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novo review of the petitioner’s habeas claims. See Panetti v. Quarterman, 551 U.S. 930, 948
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(2007) (reviewing “petitioner’s underlying incompetency claim [] unencumbered by the
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deference AEDPA normally requires” because the state court’s competency determination
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constituted an unreasonable application of clearly established federal law); Delgadillo v.
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Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (“Only if the state court’s decision does not meet
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the criteria set forth in § 2254(d)(1) do we conduct a de novo review of a habeas petitioner’s
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claims.”); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now
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clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if
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there is such error, we must decide the habeas petition by considering de novo the constitutional
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issues raised.”).
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“The relevant state court determination for purposes of AEDPA review is the last
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reasoned state court decision.” Delgadillo, 527 F.3d at 925 (citing Ylst v. Nunnemaker, 501 U.S.
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797, 804–05 (1991)). “[I]f the last reasoned decision adopts or substantially incorporates the
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reasoning from a previous state court decision, [the court] may consider both decisions to ‘fully
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ascertain the reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th
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Cir. 2007) (citation omitted); see also Ayala v. Chappell, 829 F.3d 1081, 1094 (9th Cir. 2016)
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(“We apply AEDPA’s standards to the state court’s last reasoned decision on the merits of a
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petitioner’s claims.”).
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ANALYSIS
A.
Petitioner’s Batson Claim
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1.
Batson Legal Framework
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It is clearly established law under Supreme Court precedent that “the Equal Protection
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Clause forbids the prosecutor to challenge potential jurors solely on account of their race.”
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Batson v. Kentucky, 476 U.S. 79, 89 (1986). In Batson, the Supreme Court enumerated three
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steps, “which together guide trial courts’ constitutional review of peremptory strikes.” Johnson v.
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California, 545 U.S. 162, 168 (2005).
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[The] three Batson steps should by now be familiar. First, the
defendant must make out a prima facie case by showing that the
totality of the relevant facts gives rise to an inference of
discriminatory purpose. Second, once the defendant has made out a
prima facie case, the burden shifts to the State to explain adequately
the racial exclusion by offering permissible race-neutral
justifications for the strikes. Third, if a race-neutral explanation is
tendered, the trial court must then decide whether the opponent of
the strike has proved purposeful racial discrimination.
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Id. (internal brackets, quotations, citations, and footnotes omitted).2 In Johnson, the Supreme
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Court clarified the scope of Batson’s step one and reiterated that “a defendant satisfies the
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The three-step Batson framework was clearly established Supreme Court law at the time of
petitioner Arciga’s trial in 2012 and his direct appeal in 2014. See Williams v. Runnels, 432 F.3d
1102, 1105 n.5 (9th Cir. 2006) (noting that “the Supreme Court clearly indicates in Johnson that it
is clarifying Batson, not making new law”) (citing Johnson, 545 U.S. at 168–69).
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requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to
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draw an inference that discrimination has occurred.” Id. at 170.
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The question presented to the Supreme Court in Johnson was “whether Batson permits
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California to require at step one that ‘the objector must show that it is more likely than not the
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other party’s peremptory challenges, if unexplained, were based on impermissible group bias.’”
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Id. at 167–68. This standard—referred to interchangeably as the “strong likelihood” or the “more
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likely than not”—standard, was articulated by the California Supreme Court in People v.
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Wheeler, 22 Cal. 3d 258, 280–81 (1978) and People v. Box, 23 Cal. 4th 1153, 1188 n.7 (2000)
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and its progeny. See id. Relying on those cases, the California Supreme Court had held that its
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“strong likelihood” standard was the same as Batson’s “reasonable inference” standard, and thus,
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according to the California Supreme Court’s reasoning, Batson “permits a court to require the
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objector to present, not merely ‘some evidence’ permitting the inference, but ‘strong evidence’
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that makes discriminatory intent more likely than not if the challenges are not explained.” Id. at
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167 (quoting People v. Johnson, 30 Cal. 4th 1302, 1316 (2003)); see also People v. Johnson, 30
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Cal. 4th at 1313 (“We reiterate what we implied in Wheeler and stated in Box: Wheeler’s terms
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“strong likelihood” and “reasonable inference” state the same standard.”). In People v. Johnson
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and Box, the California Supreme Court also stated that where a trial court denies a Wheeler
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motion because it finds that no prima facie case of group bias was established, the reviewing
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court is to affirm that ruling if the voir dire “record suggests grounds on which the prosecutor
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might reasonably have challenged the jurors.” People v. Johnson, 30 Cal. 4th at 1325 rev’d sub
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nom. Johnson v. California, 545 U.S. 162 (2005); People v. Box, 23 Cal. 4th at 1188.
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After granting certiorari in Johnson, however, the United States Supreme Court reversed
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the California Supreme Court’s judgment and explicitly rejected its reasoning and its holding that
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the state’s “strong likelihood” standard is the same as the “reasonable inference” standard
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required by Batson. Johnson, 545 U.S. at 166–170. Rather, the Supreme Court concluded “that
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California’s ‘more likely than not standard’ is an inappropriate yardstick by which to measure the
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sufficiency of a prima facie case,” and “is at odds with the prima facie inquiry mandated
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by Batson.” Id. at 168, 173. The United States Supreme Court explained that:
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in describing the burden-shifting framework, we assumed
in Batson that the trial judge would have the benefit of all relevant
circumstances, including the prosecutor’s explanation, before
deciding whether it was more likely than not that the challenge was
improperly motivated. We did not intend the first step to be so
onerous that a defendant would have to persuade the judge—on the
basis of all the facts, some of which are impossible for the
defendant to know with certainty—that the challenge was more
likely than not the product of purposeful discrimination.
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Id. at 170. The Supreme Court also emphasized the importance of Batson steps two and three,
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and of proceeding with each of the three Batson steps in the proper order, explaining that “the
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Batson framework is designed to produce actual answers to suspicions and inferences that
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discrimination may have infected the jury selection process.” Id. at 172.
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With regard to Batson’s second step, the Supreme Court noted that “[t]he inherent
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uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless
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and imperfect speculation when a direct answer can be obtained by asking a simple question.” Id.
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at 172 (citing Paulino v. Castro, 371 F.3d 1083, 1090 (9th. Cir. 2004) (“[I]t does not matter that
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the prosecutor might have had good reasons . . . [;] [w]hat matters is the real reason they were
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stricken”) (emphasis deleted); Holloway v. Horn, 355 F.3d 707, 725 (3rd Cir. 2004) (speculation
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“does not aid our inquiry into the reasons the prosecutor actually harbored” for a peremptory
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strike)). “[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for
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striking the juror, and it requires the judge to assess the plausibility of that reason in light of all
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evidence with a bearing on it.” Miller-El v. Dretke, 545 U.S. 231, 251–52 (2005) (“Miller-El II”)
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(“[W]hen illegitimate grounds like race are in issue, a prosecutor simply has got to state his
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reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson
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challenge does not call for a mere exercise in thinking up any rational basis.”).
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At Batson’s third step, the burden shifts back to the defendant to demonstrate that the
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race-neutral reason given by a prosecutor was pretextual and that the use of peremptory strikes
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was motivated by race. Purkett v. Elem, 514 U.S. 765, 767 (1995) (“If a race-neutral explanation
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is tendered, the trial court must then decide (step three) whether the opponent of the strike has
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proved purposeful racial discrimination.”); see also Miller-El II, 545 U.S. at 239 (“The trial court
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then will have the duty to determine if the defendant has established purposeful discrimination.”)
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(quoting Batson, 476 U.S. at 98). Indeed, “[i]t is not until the third step that the persuasiveness of
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the justification becomes relevant—the step in which the trial court determines whether the
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opponent of the strike has carried his burden of proving purposeful discrimination.” Purkett, 514
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U.S. at 768. This is because “the ultimate burden of persuasion regarding racial motivation rests
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with, and never shifts from, the opponent of the strike.” Id. Nevertheless, it is only at step three
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that the burden falls to defendant to convince the trial court that racial discrimination is occurring
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in the prosecution’s employment of its peremptory strikes. See Snyder v. Louisiana, 552 U.S.
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472, 485 (2008); Miller-El II, 545 U.S. at 239; Johnson, 545 U.S. at 170.
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2.
Whether the Decision by the California Court of Appeals Affirming The Denial of
Petitioner’s Batson Motion was Contrary to Clearly Established Federal Law
As summarized in the pending findings and recommendations, petitioner appealed his
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judgment and conviction to the California Court of Appeal for the Fifth Appellate District (“Fifth
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DCA”), which affirmed the trial court’s judgment on April 11, 2014. (Doc. No. 30 at 2.)
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Petitioner filed a petition for review in the California Supreme Court, which summarily denied his
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petition on June 25, 2014. (Id.) Accordingly, the last reasoned state court decision relevant to
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this federal court’s habeas review is the Fifth DCA’s decision: People v. Arciga, No. F064382,
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2014 WL 1400962, at *2 (Cal. Ct. App. Apr. 11, 2014). See Delgadillo, 527 F.3d at 925 (citing
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Ylst, 501 U.S. at 804–05).
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The pending findings and recommendations appear to conclude that the Fifth DCA’s
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decision is entitled to AEDPA deference. (Doc. No. 30 at 13–14) (concluding that “[p]etitioner
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fails to rebut the presumption that the state court’s finding was correct”; “[p]etitioner has not
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shown the [state appellate] court’s determination of [race-neutral reasons for each challenge] to
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be unreasonable”; and “a fair-minded jurist could conclude that the trial judge did not err when it
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did not find an inference of purposeful discrimination”; and “fair minded jurists could differ on
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whether statistics here would be sufficient”). However, in reaching this conclusion, the pending
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findings and recommendations do not discuss the legal standard that the state appellate court
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applied in reviewing the state trial court’s denial of petitioner’s Batson motion, nor do they
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analyze whether the Fifth DCA employed the wrong legal standard (i.e., a standard that is
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contrary to clearly established federal law). The undersigned begins with addressing this critical
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question because “when a state court employs the wrong legal standard, the AEDPA rule of
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deference does not apply.” Cooperwood, 245 F.3d at 1046; see also Panetti, 551 U.S. at 948 (a
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state court’s failure to apply the proper standard under clearly established federal law “allows
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federal-court review . . . without deference to the state court’s decision” and “unencumbered by
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the deference AEDPA normally requires.”); Tarango, 837 F.3d at 945; Castellanos v. Small, 766
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F.3d 1137, 1146 (9th Cir. 2014) (“If the state court applies a legal standard that contradicts clearly
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established federal law, we review de novo the applicant’s claims, applying the correct legal
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standard to determine whether the applicant is entitled to relief.”).
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If the Fifth DCA employed the wrong legal standard, then this court must review
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petitioner’s Batson claim de novo. See Johnson v. Finn, 665 F.3d 1063, 1068–69 (9th Cir. 2011)
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(where the state court employed the wrong standard for reviewing a Batson claim, the state
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court’s findings are not entitled to deference and the federal court reviews the claim de novo)
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(“Finn”).3 For the reasons explained below, the undersigned concludes that the state appellate
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court did apply the wrong legal standard in reviewing the trial court’s denial of petitioner’s
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Batson claim.
Although the Fifth DCA briefly summarized Batson’s three-step framework and cited to
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the United States Supreme Court’s decision in Johnson to describe the prima facie showing that a
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defendant must make at Batson step one, see Arciga, 2014 WL 1400962, at *2–3, that court
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nevertheless applied the wrong legal standard in reviewing the trial court’s determination that
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petitioner had failed to make a prima facie showing of racial discrimination in the prosecution’s
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use of peremptory challenges during jury selection. Specifically, the Fifth DCA explicitly stated
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the legal standard that it was applying in its review as follows:
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When a trial court denies a Wheeler motion without finding a prima
facie case of group bias, the appellate court reviews the record of
voir dire for evidence to support the trial court’s ruling. We will
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To avoid confusion with citations to the U.S. Supreme Court case Johnson v. California, the
court will use “Finn” as the case name in subsequent citations to the Ninth Circuit’s decision in
Johnson v. Finn.
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affirm the ruling where the record suggests grounds upon which the
prosecutor might reasonably have challenged the jurors in question.
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Arciga, 2014 WL 1400962, at *4 (quoting People v. Pearson, 56 Cal. 4th 393, 421 (2013)).
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Based on this legal standard, the Fifth DCA “turn[ed], therefore, to the voir dire transcript to seek
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evidence of grounds upon which the prospective jurors might reasonably have been challenged”
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and held “that there were adequate reasons other than racial discrimination for each challenge.”
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Id. That is, the Fifth DCA affirmed the trial court’s ruling because “the record of voir dire
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contains grounds upon which the prosecutor could reasonably challenge the[] ten prospective
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jurors,” and “even if a statistical disparity exists, a ruling of no prima facie case should be
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affirmed if the ‘record suggests that the prosecutor had . . . race neutral reasons’ for excusing the
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jurors.” Id. at *6–7 (quoting Pearson, 56 Cal. 4th at 422). The Fifth DCA’s decision relies
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exclusively on this quoted language from the California Supreme Court’s decision in Pearson,
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which, in turn quoted People v. Guerra, 37 Cal. 4th 1067, 1101 (2006), which in turn quoted
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People v. Farnam, 28 Cal. 4th 107, 135 (2002), which itself relies on the California Supreme
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Court’s decision articulating the “strong likelihood” standard stated in People v. Box, 23 Cal. 4th
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1153 (2000). As noted above, however, in Johnson, the United States “Supreme Court squarely
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rejected that doctrine of California law as contrary to Batson.” Finn, 665 F.3d at 1068.
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That is, a state appellate court clearly acts contrary to clearly established federal law when
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it bases its prima facie analysis on the discredited standard articulated by the California Supreme
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Court in Box. Shirley v. Yates, 807 F.3d 1090, 1101 (9th Cir. 2015), as amended (Mar. 21, 2016)
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(“We have made clear, [] that Box imposes too high a burden, and that state court decisions
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applying it do not warrant deference under AEDPA, because they are ‘contrary to . . . clearly
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established Federal law.’”) (citing 28 U.S.C. § 2254(d)(1)). Thus, in Shirley, the Ninth Circuit
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held that the district court correctly concluded that the state appellate court’s analysis was
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contrary to clearly established law because it relied on Box’s statement that “when the record
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suggests grounds upon which the prosecutor might reasonably have challenged the jurors in
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question, we affirm.” Id. (emphasis added). The Ninth Circuit affirmed the district court’s
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reasoning that:
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[t]he statement from Box is contradicted by the Supreme Court’s
holdings in Batson and Johnson. Box bound the Court of Appeal to
deny the Batson claim even if petitioner raised an inference of
discrimination, if there was some ground upon which the prosecutor
might have legitimately challenged the jurors. Misguided by this
rule, the Court of Appeal went on to speculate about possible raceneutral reasons Shirley’s prosecutor might have had for the
strikes. This kind of speculation is precisely what the Supreme
Court forbids: “The inherent uncertainty present in inquiries of
discriminatory purpose counsels against engaging in needless and
imperfect speculation when a direct answer can be obtained.”
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Shirley v. Yates, No. 2:07-cv-01800-AK, 2013 WL 394713, at *2 (E.D. Cal. Jan. 30, 2013)
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(quoting Johnson, 545 U.S. at 172).
Here, the Fifth DCA also relied on the statement from Box—although it cited to the
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decision in Pearson, the quoted statement remains the same. Arciga, 2014 WL 1400962, at *4.
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The Fifth DCA reviewed the voir dire transcript to identify “grounds upon which the prospective
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jurors might reasonably have been challenged,” and having come up with its own “adequate
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reasons other than racial discrimination for each challenge,” affirmed the trial court’s denial of
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petitioner’s Batson motion on that basis. Id. Accordingly, the Fifth DCA based its analysis on a
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wholly discredited legal standard, and thus its decision is contrary to clearly established federal
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law. See Finn, 665 F.3d 1069 (“The existence of ‘grounds upon which a prosecutor could
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reasonably have premised a challenge,’ does not suffice to defeat an inference of racial bias at the
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first step of the Batson framework.”); see also Currie v. McDowell, 825 F.3d 603, 609 (9th Cir.
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2016) (concluding that the “state appellate court violated clearly established Federal law in its
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Batson step one analysis by affirming because ‘the record suggest[ed] grounds upon which the
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prosecutor might reasonably have challenged the jurors in question,’ whether or not those were
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the reasons proffered”) (citation omitted); Williams, 432 F.3d at 1109 (“[T]he California Court of
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Appeal [] reviewed all the evidence in the record concerning the challenged jurors and
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determined that the record contained evidence for each juror that would support peremptory
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challenges on non-objectionable grounds. This, however, does not measure up to the Supreme
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Court’s pronouncement that the question is not whether the prosecutor might have had good
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reasons, but what were the prosecutor’s real reasons for the challenges.”).
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In addition, the Fifth DCA applied the wrong legal standard when it concluded that even if
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a statistical disparity exists, a trial court’s ruling that a defendant has not made a prima facie case
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should be affirmed if the record suggests that the prosecutor had race neutral reasons. See
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Williams, 432 F.3d at 1108 (under Batson and Johnson, “to rebut an inference of discriminatory
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purpose based on statistical disparity, the ‘other relevant circumstances’ must do more than
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indicate that the record would support race-neutral reasons for the questioned challenges”) (citing
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Batson, 476 U.S. at 96; Johnson, 545 U.S. at 169–70).
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Having concluded that the Fifth DCA applied the wrong legal standard, one discredited by
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the United States Supreme Court, and that its decision is therefore not entitled to AEDPA
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deference, the undersigned will proceed to analyze petitioner’s Batson claim de novo. See
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Shirley, 807 F.3d at 1101 (concluding that “it was appropriate for the district court to determine
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de novo whether the petitioner had raised an inference of racial bias” after the district court
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concluded that the state court applied the wrong legal standard to petitioner’s Batson claim); see
14
also Kitlas v. Haws, No. 2:08-cv-6651-GHK-LAL, 2016 WL 8722641, at *17 (C.D. Cal. May 13,
15
2016), report and recommendation adopted, 2016 WL 8732524 (C.D. Cal. Sept. 23, 2016), aff’d,
16
736 F. App’x 158 (9th Cir. 2018) (applying de novo review of a Batson claim where “the state
17
appellate court’s decision cited and acknowledged the correct standard” but “applied a more
18
onerous standard” under the discredited “California rule that when a trial court denies
19
a Wheeler motion without finding a prima facie case of group bias, the reviewing court must
20
affirm if the record suggests grounds upon which the prosecutor might reasonably have
21
challenged the jurors in question”).4
22
23
24
25
26
27
28
4
The court pauses to note that the California Supreme Court has subsequently recognized that
the United States Supreme Court has discredited the legal standard which it had previously
employed in this regard. People v. Sanchez, 63 Cal. 4th 411, 435 (2016) (“Shirley and Williams
appear correct that under Johnson, reviewing courts may not uphold a finding of no prima facie
case simply because the record suggests grounds for a valid challenge.”). But the California
Supreme Court appears to have attempted to reconcile its decisions by distinguishing the
impermissible standard of reviewing the record for race-neutral grounds with what it deems to be
a permissible standard of reviewing the record for “reasons clearly established in the record,”
“readily apparent reasons,” and “obvious race-neutral reasons” that dispel any inference of bias.
Id. (“[W]e believe Johnson permits courts to consider, as part of the overall relevant
12
1
3.
2
De Novo Review of Petitioner’s Batson Claim
a.
Batson Step One – Prima Facie Case
To make a prima facie showing under Batson’s first step, a defendant “must show that:
3
4
(1) the prospective juror is a member of a ‘cognizable racial group,’ (2) the prosecutor used a
5
peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference
6
that the strike was on account of race.” Crittenden v. Ayers, 624 F.3d 943, 955 (9th Cir. 2010)
7
(quoting Batson, 476 U.S. at 96). Here, it is undisputed that the prosecutor at petitioner’s trial
8
used 10 of 15 peremptory challenges to strike jurors with Spanish surnames. (Doc. No. 14 at 17–
9
18.) Thus, the only remaining question at step one is whether petitioner has met the minimal
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
/////
circumstances, nondiscriminatory reasons clearly established in the record that necessarily dispel
any inference of bias.”); see also People v. Rhoades, 8 Cal. 5th 393, 430 (2019) (“By referring to
‘readily apparent’ grounds for the strikes, we do not mean merely that we can imagine raceneutral reasons the prosecutors might have given if required to do so at the second step of the
Batson inquiry.”) However, some justices of that court have dissented in these cases and argued
that even this approach is inconsistent with and contrary to United States Supreme Court
authority. See Rhoades, 8 Cal. 5th at 457 (Liu, J., dissenting) (“[T]his mode of analysis—
hypothesizing reasons for the removal of minority jurors as a basis for obviating inquiry into the
prosecutor’s actual reasons—has become a staple of our Batson jurisprudence, and it raises
serious concerns. . . . If an inference of bias is to be dispelled, it is up to the prosecutor to dispel
it by stating credible, race-neutral reasons for the strikes. It is not the proper role of courts to
posit reasons that the prosecutor might or might not have had.”) (citing Johnson v. California,
545 U.S. at 173); see also People v. Johnson, 8 Cal. 5th 475, 536 (2019) (Liu, J., dissenting)
(“[W]e must not elevate the standard for establishing a prima facie case beyond the showing that
the high court has deemed sufficient to trigger a prosecutor’s obligation to state the actual reasons
for the strike. Viewing today’s decision in its particulars and in the broader context of our case
law, I continue to have serious doubts as to whether our jurisprudence has held true to Batson’s
mandate.”) (internal quotations and citations omitted). The analysis and reasoning in these
dissenting opinions are as compelling as they are troubling with regard to the state of Batson
jurisprudence in California. However, the undersigned need not wade into this debate because in
petitioner Arciga’s case, the Fifth DCA did not base its decision on having identified “readily
apparent” or “obvious” race neutral grounds that dispel any inference of bias. Rather, the Fifth
DCA merely found that the record of voir dire contains grounds upon which the prosecutor might
reasonably have challenged each juror and simply ended its analysis there. The Fifth DCA
neither considered whether those grounds were readily apparent or obvious, nor whether they
served to dispel any inference of bias raised by the significant statistical disparity in the
prosecutor’s use of 10 of 15 preemptory challenges to strike Spanish-surnamed jurors.
Accordingly, the question of whether a state court applies the wrong legal standard in evaluating
a Batson motion if it bases its decision on “obvious” race-neutral reasons is not a question raised
by the pending petition or answered in this order.
13
1
burden of “producing evidence sufficient to permit the trial judge to draw an inference that
2
discrimination has occurred.” Johnson, 545 U.S. at 170.
3
“[A] prima facie case of discrimination can be made out by offering a wide variety of
4
evidence, so long as the sum of the proffered facts gives ‘rise to an inference of discriminatory
5
purpose.’” Id. at 169 (quoting Batson, 476 U.S. at 94). The totality of the circumstances and the
6
variety of evidence includes: the prosecutor’s questions and statements during voir dire, whether
7
the prosecutor engaged in meaningful questioning before striking jurors belonging to that racial
8
group, whether a pattern exists of striking prospective jurors of that racial group, and a
9
comparison of the stricken jurors with jurors who were not stricken. See Batson, 476 U.S. at 96–
10
97 (“[A] ‘pattern’ of strikes against [minority] jurors included in the particular venire might give
11
rise to an inference of discrimination.”); id. (“[T]he prosecutor’s questions and statements
12
during voir dire examination and in exercising his challenges may support or refute an inference
13
of discriminatory purpose.”); United States v. Collins, 551 F.3d 914, 921 (9th Cir. 2009) (“[T]he
14
fact that the prosecutor fails to ‘engage in meaningful questioning of any of the minority jurors’
15
might indicate the presence of discrimination.”) (citation omitted); Boyd v. Newland, 467 F.3d
16
1139, 1149 (9th Cir. 2006) (“[B]ecause comparative juror analysis assists a court in determining
17
whether the totality of the circumstances gives rise to an inference of discrimination, we believe
18
that this analysis is called for on appeal even when the trial court ruled that the defendant failed to
19
make a prima facie showing at the first step of the Batson analysis.”).
20
In addition, “[a] defendant can make a prima facie showing based on statistical disparities
21
alone.” Paulino, 371 F.3d at 1091. For example, a prima facie showing may be based solely on
22
statistical evidence that prospective jurors of a particular race were disproportionately stricken
23
from the jury panel. See Miller-El v. Cockrell, 537 U.S. 322, 342 (2003) (“Miller-El I”) (“In this
24
case, the statistical evidence alone raises some debate as to whether the prosecution acted with a
25
race-based reason when striking prospective jurors” where 10 of the prosecutor’s 14 peremptory
26
strikes were used against African-Americans, noting that “[h]appenstance is unlikely to produce
27
this disparity.”). A prima facie showing may also be made where a high percentage of the total
28
number of minority jurors in the jury pool are stricken. See Shirley, 807 F.3d at 1101 (affirming
14
1
the district court’s determination that the petitioner had raised an inference of racial bias where
2
“two-thirds of the black veniremembers not removed for cause were struck by the prosecutor”
3
and noting that inferences of discrimination have been found “where smaller percentages of
4
minority veniremembers were peremptorily struck”) (citing Fernandez v. Roe, 286 F.3d 1073,
5
1078 (9th Cir. 2002) (56%); Turner v. Marshall, 63 F.3d 807, 812 (9th Cir. 1995) (56%),
6
overruled on other grounds by Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999) (en banc);
7
accord United States v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991) (57%)); see also Turner, 63
8
F.3d at 813 (concluding that the petitioner had established a prima facie case of a Batson
9
violation because two different statistics—the percentage of available African-Americans
10
challenged, and the percentage of peremptory challenges used against African-Americans—
11
provide support for an inference of discrimination”).
12
The Ninth Circuit has routinely concluded that significant statistical disparities raise an
13
inference of discrimination. In Turner, for instance, the Ninth Circuit held that an inference of
14
discrimination was raised in that case by two statistics: (1) the prosecutor “used peremptory
15
challenges to exclude five African-Americans out of a possible nine African-American
16
venirepersons” (55.5%), and (2) “[o]ut of the nine peremptory challenges made by the
17
prosecution, five were made against African-Americans.” Id. at 812–13. The Ninth Circuit
18
explained that “[a]lthough the record lack[ed] statistics on the racial makeup of the venire as a
19
whole, approximately 30 percent (11 out of 37) of the venirepersons who appeared before the
20
court for voir dire were African-American. Yet the government used a significantly higher
21
percentage of its peremptory challenges—56 percent—against African-Americans. Such a
22
disparity also supports an inference of discrimination.” Id. at 813 (citing Alvarado, 923 F.2d at
23
255–56 (finding a prima facie case because the prosecution challenged 50% of minority
24
venirepersons, who represented only 30% of the pool)). In Fernandez, the Ninth Circuit
25
analogized to Turner and similarly found that an inference of discrimination had been raised by
26
the statistical disparities alone, stating:
27
28
[t]he statistical evidence in this case is comparable to Turner as to
both the proportion of available minorities stricken and the relative
rate of such strikes. The prosecutor struck four out of seven (57%)
15
1
2
3
4
5
6
Hispanics, slightly greater than the percentage in Turner, thus
supporting an inference of discrimination. While Hispanics
constituted only about 12% of the venire, 21% (four out of
nineteen) of the prospective juror challenges were made against
Hispanics. At the time of the first Wheeler motion, after which the
judge in effect warned the prosecutor not to strike any more
Hispanics, the prosecutor had exercised 29% (four out of fourteen)
of his challenges against Hispanics. Therefore, the prosecutor
disproportionately struck Hispanics from the jury box, resulting in a
statistical disparity similar to that in Turner. Those challenges,
standing alone, are enough to raise an inference of racial
discrimination.
7
8
286 F.3d at 1078. Finally, in Williams, the Ninth Circuit held that a petitioner had raised an
9
inference of discrimination because the “bare facts present[ed] a statistical disparity” where “the
10
prosecutor used three of his first four peremptory challenges to remove African-Americans from
11
the jury” and “it appears that only four of the first forty-nine potential jurors were African-
12
American.” 432 F.3d at 1107 (reversing and remanding a district court’s denial of a federal
13
habeas petition because the district court had “failed to appreciate the import of [petitioner’s]
14
showing of statistical disparity”).
15
“It is true that statistical disparity alone does not end the inquiry; Batson held that we must
16
‘consider all relevant circumstances.’” Finn, 665 F.3d at 1071 (citing Batson, 476 U.S. at 96).
17
Importantly, however, in conducting a review of the totality of the circumstances at step one,
18
courts must be mindful that
19
20
21
22
23
24
[t]he existence of legitimate race-neutral reasons for a peremptory
strike can rebut at Batson’s second and third steps the prima facie
showing of racial discrimination that has been made at the first step.
But it cannot negate the existence of a prima facie showing in the
first instance, or else the Supreme Court’s repeated guidance about
the minimal burden of such a showing would be rendered
meaningless.
Id. at 1070–71.
Here, for the reasons that follow, the undersigned concludes that petitioner Arciga has
25
made a prima facie showing of racial discrimination in the prosecutor’s use of peremptory strikes
26
at his trial because there is a statistical disparity significant enough—10 of 15 strikes (66.6%)—
27
that it alone raises an inference of bias, and that inference is not dispelled by consideration of the
28
totality of the circumstances.
16
1
i.
As to the statistical disparity in the prosecutor’s use of peremptory strikes, the state court
2
3
Statistical Disparity
record5 reveals the following:
4
There were 70 prospective jurors in the panel at the start of jury selection; 24 of whom
5
had Spanish surnames (34.2%).6 (Doc. No. 38—sealed.) In the process of selecting the 12
6
regular jurors, the court reached the 56th prospective juror on the list of 70. (12 ART at 103.) Of
7
those 56 prospective jurors, 20 had Spanish surnames (35.7%). Of this group of 56, six received
8
hardship deferrals, two of whom had Spanish surnames.7 (See 12 ART at 20–23.) Of the
9
5
13
On February 25, 2016, respondent lodged several appellate court records, including, relevant
here, the augmented reporter’s transcript of jury selection. (Doc. No. 19 at 2) (lodging “12.
Augmented Reporter’s Transcript on Appeal, dated January 6, [afternoon] 9, 10, and 17, 2012”
and “13. Augmented Reporter’s Transcript on Appeal, dated January [morning] 9, 2012”). The
page numbering on these transcripts is not consecutive, as each of these documents begins with
its own page one. To avoid confusion, this court cites in this order to these lodged documents as
“12 ART” and “13 ART” with pincites to the transcript’s page numbers, e.g., 12 ART at 55.
14
6
10
11
12
20
Because the augmented reporter’s transcript “reflects the redaction of the identities of certain
jurors, either by using seat numbers or by using juror numbers,” in order to meaningfully review
the record, this court directed respondent to lodge additional documents containing personal
identifying information of the jurors in this matter under seal. (Doc. No. 34.) In response to the
court’s order, respondent lodged under seal a copy of the master jury list showing the names of all
70 prospective jurors. (Doc. No. 38—sealed.) As reflected on that master jury list, the following
twenty-four prospective jurors had Spanish surnames: juror Nos. 1, 8, 9, 12, 14, 15, 22, 24, 25,
28, 31, 32, 35, 41, 46, 48, 50, 51, 54, 56, 58, 62, 64, and 69. In this order, the court refers to the
prospective jurors by their number, not their name. However, because the court necessarily crossreferenced the master jury list with the ART, any citation to the ART that omits juror name
information is intended to incorporate by reference the lodged master jury list as well.
21
7
15
16
17
18
19
22
23
24
25
26
27
28
In its decision rejecting petitioner’s Batson claim on direct appeal, the Fifth DCA incorrectly
recounted that only 4 of the 56 prospective jurors received hardship referrals. Arciga, 2014 WL
1400962, at *2. However, the trial transcript reflects that the trial judge ultimately granted 8
hardship requests from the total pool of 70 prospective jurors (six of whom were from the subset
of 56 prospective jurors considered in selecting the regular jurors). Contrary to the Fifth DCA’s
apparent reading of the trial transcript, the trial judge did not rule on the hardship requests by first
announcing all of the granted deferrals and then second by announcing the denied requests.
Rather, the trial judge first excused four prospective jurors (Nos. 9, 53, 43, 6) based on hardship,
then denied a hardship request by prospective juror No. 21, excused prospective juror No. 12,
denied hardship requests by prospective jurors Nos. 41 and 10, excused prospective juror No. 36,
denied hardship requests by prospective jurors Nos. 18 and 38, excused prospective juror No. 64,
denied hardship a request by prospective jurors No. 31, excused prospective juror No. 59, and
denied hardship requests by prospective jurors Nos. 39 and 24. (See 12 ART at 20–23.)
17
1
remaining 50 prospective jurors, 18 had Spanish surnames (36%). Before the parties began
2
exercising their peremptory strikes, five prospective jurors had been stricken for cause, one of
3
whom had a Spanish surname. (13 ART at 40.) Another prospective juror with a Spanish
4
surname was stricken for cause during voir dire of the panel. (13 ART at 47–48.) In the first two
5
rounds of peremptory challenges, when the jury panel as then constituted consisted of 24
6
prospective jurors, eight of whom had Spanish surnames (33.3%), the prosecutor used five of her
7
first seven strikes (71.4%) on prospective jurors with Spanish surnames. (13 ART at 41, 92.)
8
During those round of challenges, the defense struck six jurors, two of whom had Spanish
9
surnames. (Id.) In the third round, the jury panel was re-constituted and consisted of 21
10
prospective jurors, only three of whom had Spanish surnames (14.3%). The prosecutor then
11
exercised two of her next four strikes (50%) on prospective jurors with Spanish surnames—
12
leaving only one Spanish-surnamed juror remaining on the panel. (12 ART at 100–102.) In the
13
fourth and final round of challenges, after replacing a final juror who was excused for cause,8 the
14
jury panel was again re-constituted and consisted of 21 prospective jurors, seven of whom had
15
Spanish surnames (33.3%). (12 ART at 102, 103.) In that final round of peremptory challenges,
16
the prosecutor exercised three of her four last strikes (75%) on prospective jurors with Spanish
17
surnames, and the defense struck five prospective jurors, two of whom had Spanish surnames.
18
(12 ART 130–132.)
19
By the end of jury selection, the prosecutor had used 10 of 15 strikes (66.6%) against
20
prospective jurors with Spanish surnames, even though the juror pool in total consisted of 36%
21
Spanish-surnamed jurors, and when exercising her strikes, the re-constituted panels consisted of
22
33.3%, 14.3%, and 33.3% Spanish-surnamed jurors, respectively. Put another way, of the 43
23
prospective jurors who remained after hardships deferrals and excusals for cause and who were
24
considered for seating on the trial jury, 16 of them had Spanish surnames—the prosecutor struck
25
10 of those 16 (62.5%). In contrast, the defense used only four of his 16 strikes (25%) on
26
27
28
8
In all, a total of seven prospective jurors were excused for cause, two of whom had Spanish
surnames. (See 12 ART at 103; 13 ART at 40, 47–48.)
18
1
prospective jurors with Spanish surnames. Ultimately, only two jurors with Spanish surnames
2
(16.6%) served on the jury of 12 who were sworn.9
3
This statistical disparity, when viewed both in total and in its component parts, is certainly
4
sufficient to give rise to an inference of discriminatory purpose. See Miller-El I, 537 U.S. at 342
5
(such an inference was raised where “10 of the prosecutor’s 14 peremptory strikes were used
6
against African-Americans”); Shirley, 807 F.3d at 1101 (an inference of the discriminatory use of
7
peremptory challenges was raised where “two-thirds of the black veniremembers not removed for
8
cause were struck by the prosecutor”). Having concluded that an inference of discrimination has
9
been raised by the statistical disparities in the prosecutor’s exercise of peremptory challenges, the
10
court now turns to consider whether other relevant circumstances dispel that inference. See Finn,
11
665 F.3d at 1071.
12
ii.
13
Other Relevant Circumstances
First, to place statistical disparities in context, one circumstance that courts consider is the
14
timing of when a Batson motion is made in comparison with the timing and pattern of the
15
prosecutor’s strikes. See Fernandez, 286 F.3d at 1078 (analyzing percentages at the close of voir
16
dire and at the time the Wheeler motion was made). Here, consideration of that circumstance is
17
limited because the timing of petitioner’s Batson motion is not clear in the trial court record,
18
which reflects only the following statement by the trial judge (made after the alternate jurors were
19
sworn and all jurors were released for the day):
20
We remain on the record. The record should reflect at one of our
breaks when I believe when we were going back to challenges for
cause, [defense counsel] raised a Batson-Wheeler motion. He made
the motion formally. I will now document that motion. I ruled
then, and regardless of whatever point it was in the trial, I believe it
was after the exercise of Juror Number [24] - - but it may have been
later than that – but whatever stage it was, I considered it to be an
ongoing motion.
21
22
23
24
25
26
27
28
9
After the trial jury was selected, the court proceeded with voir dire and selection of three
alternate jurors from a remaining panel of nine prospective jurors, two of whom had Spanish
surnames. (12 ART at 136.) After a bench discussion had off the record, the trial judge
announced that the parties had, “through a process, selected jurors No. 58, 60, and 61 to serve as
alternate jurors.” (12 ART at 160–161.) One of the agreed-upon alternate jurors had a Spanish
surname. (Id.)
19
I’m ruling at this point there has not been a showing of a prima
facie case of exclusion. I recognize that of the 15 jurors excused by
the defense, a significant portion bore Hispanic surnames; however,
I did my best to keep track and keep notes. Based upon these
jurors’ answers, it does not appear that none - - there was not a
pattern of discrimination based upon the racial makeup of the jurors
standing alone.
1
2
3
4
5
There has been no showing that the People exercised their
peremptory challenges in a racially discriminatory manner. I won’t
even ask the People to make a response, but I have independently
based upon my notes, feel and rule that there has been no showing
made.
6
7
8
(12 ART 163–64.)10 The defense struck prospective juror No. 24 during the second round of
9
peremptory challenges, and the prosecutor struck a prospective juror with a Spanish surname
10
immediately thereafter. (13 ART at 94.) The record reflects that the court then reconstituted the
11
jury and paused proceedings to “take just a moment to speak to the attorneys.” (Id.) It is possible
12
that during this break, defense counsel raised the Batson motion. At that time, the prosecutor had
13
already exercised five of seven strikes (71.4%) on prospective jurors with Spanish surnames.
14
Thus, it would seem that even then, assuming the Batson motion was made at that time by the
15
defense, a statistical disparity existed sufficient to raise an inference of discrimination. The
16
record reflects another possibility with regard to the timing of the defense Batson motion. That
17
is, during the final round of peremptory challenges, defense counsel requested a side bar
18
19
20
21
22
23
24
25
26
27
28
Because this court reviews petitioner’s Batson claim de novo, the court need not dwell on any
perceived deficiencies in the state trial court’s decision to deny petitioner’s Batson motion at step
one. Though it is worth noting that the record suggests that the trial judge did not consider
whether the facts gave rise to an inference of discrimination; indeed, the record suggests that the
trial judge considered only whether there was a “pattern” of discrimination. (On that question,
the trial judge concluded that 10 of 15 strikes was insufficient to evidence such a pattern without
further explanation.) Nonetheless, while a pattern of discriminatory strikes is a circumstance that
is to be considered and may support a prima facie showing of discrimination, such a pattern is
clearly not the be-all and end-all of the matter. See Fernandez, 286 F.3d at 1078 (“The specific
question before us is whether the circumstances of the prosecutor’s challenges ‘raise an inference’
of exclusion based on race, such that inquiry into the prosecution’s motives is required
under Batson. A pattern of exclusionary strikes is not necessary for finding an inference of
discrimination.”); see also United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994) (“To
establish a prima facie case, Vasquez-Lopez did not need to show that the prosecution had
engaged in a pattern of discriminatory strikes against more than one prospective juror. We have
held that the Constitution forbids striking even a single prospective juror for a discriminatory
purpose.”).
20
10
1
immediately after the prosecutor’s exercise of her 14th strike (her 9th strike of a prospective juror
2
with a Spanish surname), and there was a bench discussion had off the record at that point. (12
3
ART at 131.) It is possible that defense counsel raised the Batson motion (or perhaps renewed it)
4
at that time, but even then, the statistical disparity (9 out of 14) was clearly sufficient to raise an
5
inference of discrimination. Thus, consideration of the possible timings of petitioner’s Batson
6
motion does not in any way serve to dispel the inference raised by the statistical disparities in this
7
case.
8
Second, although the trial jury selected in petitioner’s case ultimately included two jurors
9
with Spanish surnames (No. 35 and No. 54), this fact weighs only nominally against an inference
10
of discrimination given the timing of when these two jurors were added to the venire panel and
11
were available to be the subject of peremptory challenges by the parties. See Shirley, 807 F.3d
12
1102 (“That one black juror was eventually seated does weigh against an inference of
13
discrimination, but ‘only nominally’ so.”); cf. Cooperwood, 245 F.3d at 1047–48 (the
14
prosecutor’s challenge to African-American male candidate did not establish prima facie case of
15
discrimination where the final panel had two African-American panelists, three Asian-Americans
16
and one Pacific Islander). Notably, here juror No. 35 was added to the reconstituted jury after the
17
second round of peremptory challenges were made and thus was not even available as the subject
18
of a potential strike until the third round of challenges. During that third round, the panel
19
consisted of 21 prospective jurors (three with Spanish surnames) and the prosecutor struck two of
20
them. In other words, juror No. 35 was the sole remaining juror with a Spanish surname on the
21
panel at that point. In this context, the fact that prosecutor elected not to strike juror No. 35 does
22
little to dispel the inference of bias in her exercise of peremptory strikes in this case. Similarly,
23
juror No. 54 was added to the reconstituted jury after the third round of peremptory challenges
24
and thus was not available for a potential strike until the last round, during which the prosecutor
25
used three of her four last strikes on prospective jurors with Spanish surnames, and it appears
26
from the record that defense counsel had made a Batson motion by then. In this context as well,
27
the fact that the prosecutor chose not to strike juror No. 35 and juror No. 54 at that point does not
28
/////
21
1
serve to meaningfully dispel the inference of bias.11 See Fernandez, 286 F.3d at 1079 (noting that
2
while the prosecutor’s acceptance of minority jurors is relevant, less weight is afforded to this
3
circumstance where the prosecutor is essentially put on notice or warned that additional strikes of
4
members of that protected group may trigger a finding of a prima facie showing of
5
discrimination).
Third, another circumstance that courts consider is whether the prosecutor’s questions and
6
7
statements during voir dire show that the prosecutor engaged in meaningful questioning of the
8
minority jurors before striking them. See Collins, 551 F.3d at 921. A close review of the voir
9
dire record in this case reflects that the prosecutor engaged in meaningful questioning with some,
10
but not all, of the ten prospective jurors with Spanish surnames before she struck them. The
11
prosecutor’s statements and questions with regard to each of those stricken prospective jurors
12
with Spanish surnames are summarized as follows.
Prospective Juror No. 8 – (1st strike)
13
14
The record reflects that the prosecutor engaged in meaningful questioning with
15
prospective juror No. 8, who had expressed that his father had a bad experience with “a cop.” (13
16
ART at 31.) The prosecutor asked if he would be able to put aside that bad experience and sit
17
fairly and impartially on the jury, and prospective juror No. 8 answered that he could, and that he
18
has known “good cops,” but that this experience with “one bad cop” was still in the back of his
19
mind. (Id.)
Prospective Juror No. 1 – (3rd strike)
20
21
The record reflects that the prosecutor engaged in meaningful questioning with
22
prospective juror No. 1, who had been arrested on a misdemeanor child endangerment charge.
23
(13 ART at 30.) The prosecutor asked if there was anything about that process and the way she
24
was treated by the police officers that made her feel that she could not be impartial. (Id.)
25
Prospective juror No. 1 answered, no, that they had treated her well. (Id.) The prosecutor also
26
11
27
28
For similar reasons, because counsel agreed on alternate jurors after petitioner had made his
Batson motion, the fact that the prosecutor agreed upon an alternate juror who had a Spanish
surname does not serve to dispel the inference of racial bias raised by the statistical disparities in
this case.
22
1
asked if there was anything about the legal process that she felt she was treated unfairly, to which
2
she also answered, no.
Prospective Juror No. 15 – (4th strike)
3
4
The record reflects that the prosecutor did not engage in meaningful questioning with
5
prospective juror No. 15 before exercising a peremptory challenge on her. Following an
6
exchange with another prospective juror regarding rape victims’ reactions and how not all victims
7
react the same way, the prosecutor turned to prospective juror No. 15 and had the following
8
exchange:
9
10
[Prosecutor]: [I]f you saw a rape victim testify and they did not cry
on the stand, they did not fall apart on the stand, are you going to
say, well, I can’t believe anything she says?
11
Prospective juror No. 15: Nods.
12
[Prosecutor]: No? Okay. So how a rape victim reacts is very
different.
13
14
(13 ART at 23.)12 This was the only question that the prosecutor asked prospective juror No. 15,
15
and the question was not specific to her experience or asked as a follow-up to answers she had
16
17
18
19
20
21
22
23
24
25
26
27
28
The Fifth DCA characterized prospective juror No. 15’s response as “ambiguous,” and
concluded that “[b]ecause the juror’s response was ambiguous and the prosecutor’s follow up did
not yield any clarification, the prosecutor could reasonably be concerned that the juror would be
more likely than others to disbelieve an unemotional victim witness.” Arciga, 2014 WL 1400962,
at *4. The Fifth DCA further speculated that “[i]f the juror failed to understand the question, the
prosecutor might reasonably have been concerned about the juror’s possible lack of
attentiveness.” Id. However, because the prosecutor’s follow-up was “No? Okay”—not “Yes?
Okay”—the ambiguity in the record is whether or not the prosecutor had interpreted the “nods”
response as an affirmative yes to her question. To the extent that prospective juror No. 15’s nod
was ambiguous and actually caused the prosecutor to have some doubt or concern, the prosecutor
could have followed up by rephrasing her question, asking another question to clarify, or asking
for a verbal response. (For example, when the prosecutor asked a prospective juror, “[h]ow a
child retells an experience is often very different than how an adult would; is that correct,” the
prospective juror answered “uh-huh,” to which the prosecutor immediately followed-up with “[i]s
that a yes,” and that prospective juror answered “yes.” (13 ART at 26.)) Instead, with juror No.
15 the prosecutor immediately pivoted to a different prospective juror and asked, “do you
understand that,” and that prospective juror answered “yes.” (13 ART at 23.) The prosecutor
then asked another prospective juror, “do you understand that question, too, about the rape victim,
every rape victim reacts differently,” and that prospective juror answered with a nod. (Id.) Given
this context of the prosecutor’s brief exchange with prospective juror No. 15, that exchange
clearly was not meaningful questioning and hardly indicated that prospective juror No. 15 was
inattentive or more likely to disbelieve an unemotional victim witness.
23
12
1
given in response to the court’s questions. Moreover, the prosecutor asked several other
2
prospective jurors this question as a means of conveying the general concept that rape victims
3
react differently and vary in their presentation of emotion. (See 13 ART at 21–27.) Accordingly,
4
the record reflects that although the prosecutor asked prospective juror No. 15 a question, the
5
context reveals that this was not meaningful questioning of prospective juror No. 15 in particular.
Prospective Juror No. 32 – (5th strike)
6
7
The record reflects that the prosecutor engaged in meaningful questioning with
8
prospective juror No. 32, who had expressed her reluctance to judge another person because she
9
has a hard time judging others. (13 ART at 45, 80.) The prosecutor followed-up with prospective
10
juror No. 32 on her answers to questions posed by the court and by defense counsel regarding her
11
reluctance in this regard. (13 ART at 88–89.) The prosecutor stated: “I think you’re somebody
12
who talked about credibility, and I think sometimes people believe that we’re judging the person,
13
and you understand that we’re just judging the conduct of the defendant, sometimes nice people
14
do bad things, and all you need to judge is the conduct.” (Id.) The prosecutor then asked: “Does
15
that make you feel better sitting as a juror or do you still feel like it’s just too hard, it will drive
16
you crazy and you just can’t be a juror?” (Id.) Prospective juror no. 32 answered: “I think I
17
can.” (Id.)
18
19
Prospective Juror No. 28 – (7th strike)
The record reflects that the prosecutor did not engage in any meaningful questioning of
20
prospective juror No. 28. The prosecutor explained that “circumstantial evidence was just as
21
good as direct evidence” and gave an example of circumstantial evidence that could be used to
22
show that it is raining outside. (13 ART at 83.) The prosecutor then asked prospective juror No.
23
28, “do you understand circumstantial evidence,” to which prospective juror No. 28 answered,
24
“yes, I do.” (Id.) To reiterate her point, the prosecutor then asked prospective juror No. 28, “can
25
you follow the law that says circumstantial evidence is just as good as direct evidence,” to which
26
prospective juror No. 28 answered “yes.” (Id.) Then, the prosecutor turned to the panel and
27
asked, “does anybody have an issue with circumstantial evidence?” (Id.) This exchange suggests
28
that the prosecutor asked prospective juror No. 28 this question merely to demonstrate a point
24
1
about circumstantial evidence for the entire panel. These two circumstantial evidence questions
2
were the only questions that the prosecutor asked prospective juror No. 28. Thus, the
3
prosecutor’s questions do not constitute meaningful questions specific to prospective juror No.
4
28.
5
6
Prospective Juror No. 25 – (8th strike)
The record reflects that the prosecutor engaged in meaningful questioning of prospective
7
juror No. 25, who worked as an accountant and stated that his father was once arrested for
8
possession of narcotics for sale. (13 ART at 65–66.) While questioning prospective juror No. 32
9
regarding his occupation, the court commented that accounting is a very precise field. (13 ART
10
at 66.) Later, the prosecutor referred back to the court’s comment and asked prospective juror
11
No. 25, “are you okay with holding the People to the standard of beyond a reasonable doubt
12
versus possible doubt,” to which he responded, “[y]eah, you know, as long as they explain
13
everything totally and everything, you know, the way we could understand it [to] be able to know
14
what’s - - you know.” (13 ART at 85.) The prosecutor then had the following exchange with
15
prospective juror No. 25:
16
17
18
19
20
21
22
23
24
25
26
27
28
[Prosecutor]: “Okay. Here’s the concern, you’re an accountant, my
brother is an accountant, and I know how particular he is about - everything has got to lineup just right, and if it doesn’t he just says,
oh, no, because this doesn’t make sense because this little number is
off or something is off, and I think it’s a personality thing when
you’re an accountant. Are you going to - - and that’s because you
want beyond all doubt. You’re going to recalculate figures until it
comes out exactly right. That’s not the way that human nature is,
that’s not the way that it works here with the evidence. Are you
going to be able to put that aside and say beyond a reasonable doubt
versus possible doubt?
Prospective juror No. 25: Yes, because I don’t apply what I do at
work to my everyday life. I try to leave that at work.
[Prosecutor]: That’s good.
Prospective juror No. 25: When I go to work I put that mindset on,
when I leave work I turn it off.
[Prosecutor]: Okay. So you’ll be able to follow the instructions,
great.
Prospective juror No. 25: Uh-huh.
25
1
(13 ART at 85–86.) The prosecutor also followed-up regarding prospective juror No. 25’s
2
father’s arrest, asking if there was anything about the way that law enforcement treated his father
3
or the legal process that bothered prospective juror No. 25, to which he answered no. (13 ART at
4
86–87.)
5
Prospective Juror No. 41 – (9th strike)
6
The record reflects that the prosecutor engaged in meaningful questioning with
7
prospective juror No. 41, who had stated that he was currently being charged with a felony in
8
Madera County and that he did not feel that the prosecutor in his case was treating him fairly. (13
9
ART at 105.) The prosecutor followed-up with prospective juror No. 41 and asked, “does that
10
mean that you cannot sit here fairly and impartially because I’m a district attorney,” to which he
11
answered, no. (12 ART at 95.) The prosecutor then asked if prospective juror No. 41 could sit
12
fairly and impartially on this jury and if he understands that she is not the district attorney in
13
Madera County and knows nothing about his case there. (Id.) Prospective juror No. 41 answered
14
yes to both questions. (Id.) The prosecutor also asked prospective juror No. 41 about his “work
15
in corrections” as a “correctional supervising cook,” confirming with him that he was not a
16
correctional officer, and that he did not have interactions with the inmates telling him about their
17
cases. (12 ART at 94–95.)
18
Prospective Juror No. 46 – (13th strike)
19
The record reflects that the prosecutor engaged in some limited questioning with
20
prospective juror No. 46, who stated that she was a special education teacher. (12 ART at 111.)
21
The prosecutor had the following exchange with prospective juror No. 46:
22
[Prosecutor]: What ages do you teach?
23
Prospective juror No. 46: It is elementary, so I can teach kids
anywhere that can be from kindergarten to sixth grade.
24
25
[Prosecutor]: And do you ever have a situation where maybe one
of the kids is telling a false story?
26
Prospective juror No. 46: All the time.
27
[Prosecutor]:
correct?
28
And you do that by asking follow-up questions,
26
1
Prospective juror No. 46: Yes.
2
[Prosecutor]: And then seeing what rings true and what is not true?
3
Prospective juror No. 46: Yes.
4
[Prosecutor]: And sometimes that is true for adults. Sometimes
people lie; is that correct?
5
Prospective juror No. 46: Yes.
6
7
[Prosecutor]: So do you feel like you would be a good judge of
credibility in determining whether a witness appears to be telling
the truth that you believe something beyond a reasonable doubt?
8
Prospective juror No. 46: Yes.
9
10
(12 ART at 122–123.) In context, the record suggests that this line of questioning was not
11
directed at prospective juror No. 46 in particular, but rather the prosecutor used these questions to
12
facilitate making her own broader point to the venire about evaluating the credibility of witnesses
13
and evidence. Accordingly, while perhaps arguably a somewhat closer call, the record does not
14
reflect that the prosecutor engaged in any meaningful questioning of prospective juror No. 46.
15
16
Prospective Juror No. 48 – (14th strike)
The record reflects that the prosecutor engaged in meaningful questioning with
17
prospective juror No. 48, who stated that he had been arrested 33 years ago but that no criminal
18
charges were filed as a result. (12 ART at 110.) The prosecutor followed-up with prospective
19
juror No. 48 as follows:
20
21
[Prosecutor]: Mr. [], you said that no charges were filed. The
judge said, “Did you feel like you were treated fairly?” To me, it
seemed like you kind of hesitated a little bit. Was there any issues
with the officers?
22
23
Prospective juror No. 48: It is just that - - I - - it was just - - how
could I - - a sweep? [sic]. I tried to explain to the officer I didn’t
have anything to do with it, and still said “Let’s go.”
24
[Prosecutor]: Okay.
25
Prospective juror No. 48: I was arrested.
26
[Prosecutor]: But no charges were filed?
27
Prospective juror No. 48: No.
28
27
1
[Prosecutor]: From what it sounds like, initially, they thought you
were involved; then they found out you weren’t, so they let you go?
2
Prospective juror No. 48: Yes.
3
[Prosecutor]: Were the officers rude to you?
4
Prospective juror No. 48: Yeah. They were rude.
5
6
[Prosecutor]: You understand that the officers in this case are not
going to be the officers that arrested you?
7
Prospective juror No. 48: I understand.
8
[Prosecutor]: Anybody, cops, lawyers, service people can be rude
sometimes, but you have to look at the evidence. Will you be able
to do that?
9
10
11
Prospective juror No. 48: I think I can.
(12 ART at 124–25.)
Prospective Juror No. 56 – (15th strike)
12
13
The record reflects that the prosecutor did not engage in meaningful questioning of
14
prospective juror No. 56. Indeed, the record reflects that the prosecutor did not ask any questions
15
of prospective juror No. 56 at all.
In sum, the prosecutor engaged in meaningful questioning of only six of the ten
16
17
prospective jurors with Spanish surnames (Nos. 1, 8, 25, 32, 41 and 48) before exercising
18
peremptory challenges to strike them. In this regard, the prosecutor did not meaningfully
19
question three of the stricken prospective jurors with Spanish surnames (Nos. 15, 28, and 46).
20
Moreover, the prosecutor did not ask any questions of prospective juror No. 56, whom she struck
21
last.
22
Given these circumstances, consideration of the prosecutor’s statements and questions
23
posed to the perspective jurors stricken by the prosecution does not weigh heavily in either
24
direction—to support or to dispel the existing inference of bias in the exercise of the
25
prosecution’s peremptory challenges. For example, this is not a situation in which the prosecutor
26
struck prospective jurors with Spanish surnames without asking any of them meaningful
27
questions during voir dire, which would strongly support an inference of bias. See Fernandez,
28
286 F.3d at 1079 (prima facie case shown in part because “the prosecutor failed to engage in
28
1
meaningful questioning of any of the minority jurors”) (emphasis added). This is also not a
2
situation in which the prosecutor asked meaningful questions before striking all of the prospective
3
jurors with Spanish surnames, which would weigh against an inference of bias arising from
4
statistical disparity. See White v. Pollard, No. 2:20-cv-06726-GWM-AA, 2021 WL 6620853, at
5
*31 (C.D. Cal. Sept. 3, 2021), report and recommendation adopted, 2022 WL 195494 (C.D. Cal.
6
Jan. 18, 2022) (concluding that “this is not a case where an inference of racial motivation can be
7
drawn from the prosecutor’s failure to elicit meaningful information from Juror No. 24 before
8
excusing her” because “[b]efore excusing Juror No. 24, the prosecutor asked her pertinent
9
questions about her views of the criminal justice system and about her work with people with
10
behavioral disabilities”) (internal citations omitted). Thus, the court finds that consideration of
11
this factor to be neutral at best. That the prosecutor in this case asked some meaningful questions
12
to some of the prospective jurors with Spanish surnames before striking them certainly does not
13
serve to dispel the inference of bias existing in this case. See United States v. Esparza-Gonzalez,
14
422 F.3d 897, 905 (9th Cir. 2005) (“Although the prosecutor has no obligation to question all
15
potential jurors, his failure to do so prior to effectively removing a juror of a cognizable group
16
through a waiver may contribute to a suspicion that this juror was removed on the basis of race.
17
This suspicion, along with other factors, may lead to an inference of intentional discrimination.”).
18
Moreover, while the answers and responses given by the prospective jurors who were
19
meaningfully questioned by the prosecutor may suggest non-discriminatory reasons that the
20
prosecutor might have had for striking them, that is simply not a consideration in the Batson
21
framework. See Johnson, 545 U.S. at 172 (quoting Paulino, 371 F.3d at 1090) (“[I]t does not
22
matter that the prosecutor might have had good reasons . . . [;] [w]hat matters is the real reason
23
they were stricken.”); see also Potts v. Harman, 588 F. App’x 620, 620 (9th Cir. 2014)13 (“[T]he
24
state court was not entitled to speculate as to potential non-discriminatory reasons that the
25
prosecutor may have had for excusing the juror.”); cf. United States v. Santos-Cordero, 669 F.
26
27
28
13
Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
36-3(b).
29
1
App’x 417, 418 (9th Cir. 2016)14 (holding that “the district court erred by relying on its own
2
speculation about the prosecutor’s potential reasons for striking the juror when it concluded that
3
a prima facia showing of discrimination had not been made at step one”). Reflecting on the
4
Batson framework, the Supreme Court has explained:
5
[i]t is true that peremptories are often the subjects of instinct, and it
can sometimes be hard to say what the reason is. But when
illegitimate grounds like race are in issue, a prosecutor simply has
got to state his reasons as best he can and stand or fall on the
plausibility of the reasons he gives. A Batson challenge does not
call for a mere exercise in thinking up any rational basis. If the
stated reason does not hold up, its pretextual significance does not
fade because a trial judge, or an appeals court, can imagine a reason
that might not have been shown up as false.
6
7
8
9
10
Miller-El II, 545 U.S. at 252 (internal citation omitted).
11
Fourth, and finally, courts conduct a comparative juror analysis and consider whether such
12
a comparison of the prospective jurors stricken by the prosecutor with the jurors permitted to
13
serve dispels an inference of discrimination. See id. at 241 (“If a prosecutor’s proffered reason
14
for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted
15
to serve, that is evidence tending to prove purposeful discrimination.”) Comparative juror
16
analysis is a useful tool and a relevant circumstance, even at Batson step one. See Boyd, 467 F.3d
17
at 1149. This “analysis involves ‘side-by-side comparisons’ between the [minority] prospective
18
juror who was excused and non-minority jurors who were allowed to serve.” White, 2021 WL
19
6620853, at *30 (quoting Miller-El II, 545 U.S. at 241). “An inference of discrimination may
20
arise when two or more potential jurors share the same relevant attributes but the prosecutor has
21
challenged only the minority juror.” Collins, 551 F.3d at 922.
22
Here, a comparative juror analysis in this case is somewhat hampered because the state
23
trial court did not require the prosecutor to state her reasons for striking the ten prospective jurors
24
with Spanish surnames, nor did the prosecutor elect to put her reasons on the record
25
notwithstanding the trial court’s ruling on the petitioner’s Batson motion. Thus, the record in this
26
case does not allow for comparison of the reasons given by the prosecutor for the potentially
27
28
14
See fn. 13, above.
30
1
discriminatory strikes to determine whether those reasons would apply equally to jurors of
2
another race who were not struck by the prosecutor. The Fifth DCA identified its own “adequate
3
reasons other than racial discrimination for each challenge,” but in doing so, also did not conduct
4
a comparative juror analysis to determine whether those reasons would similarly apply to jurors
5
who the prosecutor did not challenge. Arciga, 2014 WL 1400962, at *4.
6
In reviewing the record of voir dire of all prospective jurors, not just those stricken by the
7
prosecutor, the undersigned observes that at least some of the reasons suggested by the Fifth DCA
8
for why jurors might have been struck by the prosecutor are reasons that would have also applied
9
in equal force to jurors who ended up being selected and serving on the jury. For instance, the
10
Fifth DCA suggested that a juror’s lower education level might have provided a race-neutral
11
reason for striking prospective jurors Nos. 1 and 28. Arciga, 2014 WL 1400962, at *4–5. Both
12
had Spanish surnames and had no more than a high school education—prospective juror No. 1
13
completed the tenth grade of high school (12 ART at 65), and prospective juror No. 28 completed
14
a GED (13 ART at 70). However, juror No. 33, who was selected to serve on the jury and who
15
did not have a Spanish surname, also had only a high school level education. (12 ART at 119.)
16
Moreover, the prosecutor struck Spanish-surnamed prospective juror No. 56 (notably without
17
asking him any questions at all), and he had a Bachelor of Arts degree. (12 ART at 121.) The
18
prosecutor also exercised a peremptory challenge on Spanish-surnamed prospective juror No. 15
19
(without asking her any meaningful questions), and her educational background included
20
postgraduate work. (12 ART at 78.)
21
Similarly, the Fifth DCA pointed to the fact that Spanish-surnamed prospective jurors No.
22
28 and 46 did not have children as a reason for striking them. Arciga, 2014 WL 1400962, at *4–
23
5. However, juror No. 49 also had no children and was selected to serve on the jury at
24
petitioner’s trial (12 ART at 115), as did juror No. 17, (12 ART at 81). Neither juror No. 49 nor
25
juror No. 17, however, had Spanish surnames.
26
In another example, the Fifth DCA pointed to the fact that Spanish-surnamed prospective
27
juror No. 32 had a brother who had been arrested and spent a few nights in jail for driving under
28
the influence, and the state appellate court concluded that this “experience of a family member
31
1
being arrested and incarcerated” could be the reason for the prosecution’s exercise of a
2
peremptory challenge striking prospective juror No. 32. Arciga, 2014 WL 1400962, at *5.
3
However, juror No. 33, who served on the jury and did not have a Spanish surname, had a brother
4
who had been incarcerated for the past ten years—much longer than just a few nights in jail for a
5
DUI. (13 ART at 56.) It is not clear from the record when prospective juror No. 32’s brother was
6
arrested for a DUI, but it is notable that juror No. 37, who served on the jury and did not have a
7
Spanish surname, also had a brother who had suffered a DUI conviction, albeit twenty years
8
earlier. (13 ART at 105.) Both jurors No. 33 and 37, and prospective juror No. 32, all confirmed
9
that they each felt their brothers were treated fairly by the criminal justice system and that their
10
experiences in this regard would not affect their ability to serve as a fair and impartial juror in
11
petitioner’s case. (13 ART at 56, 60, 105.)
12
In yet another example, the Fifth DCA posited that an adequate reason for the prosecutor
13
to strike Spanish-surnamed prospective juror No. 56 could have been that juror No. 56 would
14
likely resent and mistrust police officers because he had been “detained” (but not arrested) during
15
an incident five months earlier in Los Angeles, in which he was pulled over and had to sit in the
16
back of a squad car while officers looked through his wallet. Arciga, 2014 WL 1400962, at *6.
17
When twice asked by the court if anything about this experience would affect his ability to be fair
18
and impartial, the perspective juror answered: “No. Left me kind of upset,” and “I hope not.”
19
(12 ART at 109–10.) When the court asked if he would do his best to set the incident aside, he
20
answered, “yeah,” and the court stated that it “will let the attorneys inquire.” (12 ART at 110.)
21
Notably, the prosecutor did not ask prospective juror No. 56 any questions (about this incident or
22
otherwise). In contrast, juror No. 40, who served on the jury at petitioner’s trial and did not have
23
a Spanish surname, had been arrested and formally charged in a criminal case twenty years ago.
24
(13 ART at 103–105.) Juror No. 40 told the court that his ability to be fair and impartial would
25
not be affected, yet the prosecutor nevertheless followed-up with a few questions of her own, to
26
confirm that there was nothing about the “court system” that concerned juror No. 40 and that he
27
could sit as a juror fairly and impartially. (13 ART at 103–105; 12 ART at 96.)
28
/////
32
1
As these many examples illustrate, a comparative analysis of the prospective jurors who
2
were stricken by the prosecutor with the jurors who were selected to serve on the jury tends to
3
support, rather than dispel, an inference of bias in the prosecution’s exercise of peremptory
4
challenges in this case.
5
Having analyzed other relevant considerations and reviewed the totality of the
6
circumstances, this court concludes that petitioner has made a prima facie showing of racial
7
discrimination in the prosecutor’s exercise of peremptory challenges. That is, petitioner has
8
“satisfie[d] the requirements of Batson’s first step by producing evidence sufficient to permit the
9
trial judge to draw an inference that discrimination has occurred.” See Johnson, 545 U.S. at 170.
10
11
b.
Batson Step Two – Prosecutor Articulates Actual Reasons for the Strikes
Here, because the state trial court erroneously concluded that petitioner had not produced
12
evidence sufficient to raise an inference of racial bias, the trial court did not require the prosecutor
13
to articulate her reasons for striking the ten prospective jurors who had Spanish surnames.
14
Accordingly, the court must now proceed “to conduct an evidentiary hearing, in order to replicate
15
on habeas review the inquiry that the state trial court should have conducted in the first place—
16
requiring the prosecutor to assert race-neutral reasons for the strike (at Batson step two) and
17
determining (at Batson step three) whether the asserted reasons were in fact genuine rather than
18
pretextual.” Finn, 665 F.3d at 1072; see also Potts, 588 F. App’x at 620 (reversing a district
19
court’s denial of habeas relief and remanding for an evidentiary hearing on the petitioner’s Batson
20
claim, noting that “[a]t Batson’s first step, the state court was not entitled to speculate as to
21
potential non-discriminatory reasons that the prosecutor may have had for excusing the juror”)
22
(citing Paulino v. Harrison, 542 F.3d 692, 699–700 (9th Cir. 2008)).
23
Because an evidentiary hearing will be necessary in order to appropriately resolve
24
petitioner’s Batson claim, the court will refer the pending petition to the Federal Defender’s
25
Office for appointment of counsel on behalf of petitioner in this federal habeas action. See Kitlas
26
v. Haws, No. 2:08-cv-6651-GHK-LAL, 2016 WL 8722641, at *2 (C.D. Cal. May 13, 2016),
27
report and recommendation adopted, 2016 WL 8732524 (C.D. Cal. Sept. 23, 2016), aff’d, 736 F.
28
App’x 158 (9th Cir. 2018) (“appoint[ing] the Federal Public Defender to represent Petitioner”
33
1
after determining that an evidentiary hearing on petitioner’s Batson claim would be held). Once
2
counsel is appointed, the parties are directed to contact Courtroom Deputy Mamie Hernandez to
3
determine the court’s availability for a status conference at which time an evidentiary hearing will
4
be scheduled and the procedure to be employed at the evidentiary hearing (such as the filing of
5
declarations in lieu of direct examination, etc.) may be discussed.
6
B.
Petitioner’s Insufficient Evidence Claims
As to petitioner’s remaining two grounds for federal habeas relief based on claims of
7
8
insufficient evidence, the pending findings and recommendations recommend that petitioner’s
9
claims be denied on the merits. (Doc. No. 30 at 20–22.) Specifically, the magistrate judge
10
concluded that the Fifth DCA “reasonably found that there was more than sufficient evidence
11
supporting the [jury’s] finding[s]” as to the substantive offense of kidnapping with intent to rape,
12
the special circumstance of kidnapping of M.F., and as to the substantive offense of attempted
13
kidnapping of C.M. (Id. at 20.) The undersigned agrees.
14
In his objections to the pending findings and recommendations as to his insufficient
15
evidence claims, petitioner merely restates the arguments he presented in his petition—arguments
16
that the magistrate judge has already thoroughly and correctly addressed in the pending findings
17
and recommendations. Having carefully reviewed the entire file, including petitioner’s
18
objections, the undersigned concludes that the findings and recommendations with regard to
19
petitioner’s insufficient evidence claims are supported by the record and by proper analysis.
20
Accordingly, the undersigned will adopt the pending findings and recommendations in part as to
21
those claims and deny petitioner’s second and third claims for federal habeas relief on the merits.
22
Therefore, this federal habeas action will now proceed only on petitioner’s first claim for federal
23
habeas relief—his Batson claim.
24
CONCLUSION
25
For all of the reasons explained above:
26
1.
27
28
The pending findings and recommendations issued on June 26, 2017 (Doc. No. 30)
are adopted in part and declined in part, as follows:
/////
34
1
a.
2
insufficient evidence to support his judgment and conviction is denied; and
3
b.
4
5
Petitioner’s application for a writ of habeas corpus based on his claims of
Petitioner’s application for a writ of habeas corpus proceeds only on his
Batson claim, which remains pending;
2.
Petitioner’s pending application for a writ of habeas corpus is hereby referred to
6
the Federal Defender’s Office (“FDO”) for the appointment of counsel on behalf
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of petitioner;
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3.
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Following the appointment of counsel, the parties are directed to contact
Courtroom Deputy Mamie Hernandez, at (559) 499-5652, or
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MHernandez@caed.uscourts.gov, within twenty-one (21) days of service of this
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order regarding the scheduling of a status conference regarding the setting of an
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evidentiary hearing on petitioner’s Batson claim and the procedures governing that
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hearing; and
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4.
The Clerk of the Court is directed to include Assistant Federal Defenders Ann
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McClintock (Ann_McClintock@fd.org) and Carolyn Wiggin
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(Carolyn_Wiggin@fd.org) in the CM/ECF’s Notice of Electronic Filing in this
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action.
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IT IS SO ORDERED.
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Dated:
June 15, 2022
UNITED STATES DISTRICT JUDGE
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