(HC) Arciga v. Frauenheim, No. 1:2015cv01372 - Document 43 (E.D. Cal. 2022)

Court Description: 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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO ARCIGA, 12 13 14 15 16 17 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) 18 19 20 BACKGROUND Petitioner Mario Arciga is a state prisoner proceeding pro se and in propria persona with 21 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a 22 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 In his pending petition, petitioner asserts that he was denied his rights under the 24 Fourteenth Amendment to the U.S. Constitution when he was tried and convicted of forcible rape, 25 kidnapping to commit rape, attempted lewd act on a child, and attempted kidnapping to commit a 26 lewd act, in the Fresno County Superior Court in 2012, for which he is currently serving an 27 indeterminate sentence of 25 years-to-life plus 19 years in state prison. (Doc. No. 1 at 1.) 28 Petitioner asserts three claims for federal habeas relief in the petition pending before this federal 1 1 court. First, petitioner seeks federal habeas relief on the ground that the state trial court violated 2 his due process rights when it denied his Batson/Wheeler1 motion by finding that he had failed to 3 make a prima facie showing of racial discrimination in the prosecutor’s exercise of peremptory 4 challenges—using 10 of 15 strikes (66.6%) on prospective jurors with Spanish surnames. (Id. at 5 28.) Second, petitioner claims that the state trial court imposed a kidnapping enhancement and 6 that he was convicted of kidnapping to commit rape based on insufficient evidence. (Id. at 40.) 7 Third, petitioner claims that he was convicted of attempted kidnapping to commit a lewd act 8 based on insufficient evidence. (Id. at 50.) 9 On June 26, 2017, the then-assigned magistrate judge issued findings and 10 recommendations recommending that petitioner’s petition for federal habeas relief be denied on 11 the merits as to all three of his claims. (Doc. No. 30.) Those pending findings and 12 recommendations were served on all parties and contained notice that any objections thereto were 13 to be filed within twenty-one (21) days from the date of service. (Id. at 22.) On July 19, 2017, 14 petitioner timely filed objections to the pending findings and recommendations. (Doc. No. 31.) 15 Respondent did not file any such objections or a response to petitioner’s objections, and the time 16 in which to do so has passed. 17 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 18 de novo review of this case. Having carefully reviewed the entire file, including petitioner’s 19 objections, the undersigned will adopt the pending findings and recommendations, in part. 20 Specifically, the findings and recommendations concerning petitioner’s claims of insufficient 21 evidence to support his conviction will be adopted. For the reasons explained below, however, 22 the undersigned declines to adopt the recommendation concerning petitioner’s Batson claim. 23 ///// 24 1 25 26 27 28 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. 2 1 2 LEGAL STANDARD “[A] district court shall entertain an application for a writ of habeas corpus in behalf of a 3 person in custody pursuant to the judgment of a state court only on the ground that he is in 4 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 5 § 2254(a). Pursuant to 28 U.S.C. § 2254(d)(1), as amended by the Antiterrorism and Effective 6 Death Penalty Act of 1996 (“AEDPA”), an application for a writ of habeas corpus shall not be 7 granted “with respect to any claim that was adjudicated on the merits in State court proceedings” 8 unless the state court’s adjudication of that claim “resulted in a decision that was contrary to, or 9 involved an unreasonable application of, clearly established Federal law, as determined by the 10 11 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 12 the time of the last reasoned state court decision. Greene v. Fisher, 565 U.S. 34, 38 (2011). 13 “[C]ircuit court precedent may be persuasive in determining what law is clearly established and 14 whether a state court applied that law unreasonably.” Stanley v. Cullen, 633 F.3d 852, 859 (9th 15 Cir. 2011) (citation omitted). However, circuit precedent may not be “used to refine or sharpen a 16 general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] 17 Court has not announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. 18 Matthews, 567 U.S. 37, 49 (2012)). Nor may circuit precedent be used to “determine whether a 19 particular rule of law is so widely accepted among the Federal Circuits that it would, if presented 20 to th[e] [Supreme] Court, be accepted as correct.” Id. 21 A state court decision is “contrary to” clearly established federal law “if it ‘applies a rule 22 that contradicts the governing law set forth in [Supreme Court] cases’ or if it ‘confronts a set of 23 facts that are materially indistinguishable from a decision of [the Supreme] Court and 24 nevertheless arrives at a result different from [Supreme Court] precedent.’” Price v. Vincent, 538 25 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). 26 As to whether a state court’s decision involved an “unreasonable application of” clearly 27 established federal law, “a federal habeas court may not issue the writ simply because that court 28 concludes in its independent judgment that the relevant state-court decision applied clearly 3 1 established federal law erroneously or incorrectly. Rather, that application must also be 2 unreasonable.” Williams, 529 U.S. at 411. An “unreasonable application of” clearly established 3 federal law “must be ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not 4 suffice.” White v. Woodall, 572 U.S. 415, 419–20 (2014) (quoting Lockyer v. Andrade, 538 U.S. 5 63, 75–76 (2003)) (internal quotation marks omitted). Rather, to obtain federal habeas relief, “a 6 state prisoner must show that the state court’s ruling on the claim being presented in federal court 7 was so lacking in justification that there was an error well understood and comprehended in 8 existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 9 U.S. 86, 103 (2011). Thus, “[o]n federal habeas review, AEDPA imposes a highly deferential standard for 10 11 evaluating state-court rulings and demands that state-court decisions be given the benefit of the 12 doubt.” Felkner v. Jackson, 562 U.S. 594, 598 (2011) (citation and internal quotation marks 13 omitted). However, “when a state court employs the wrong legal standard, the AEDPA rule of 14 deference does not apply.” Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir. 2001); see 15 also Tarango v. McDaniel, 837 F.3d 936, 945 (9th Cir. 2016), cert. denied, 137 S. Ct. 1816 16 (2017). 17 Where the criteria set forth in § 2254(d)(1) is satisfied (i.e., where the state court’s 18 adjudication of the petitioner’s claim “resulted in a decision that was contrary to, or involved an 19 unreasonable application of, clearly established federal law”), the federal court conducts a de 20 novo review of the petitioner’s habeas claims. See Panetti v. Quarterman, 551 U.S. 930, 948 21 (2007) (reviewing “petitioner’s underlying incompetency claim [] unencumbered by the 22 deference AEDPA normally requires” because the state court’s competency determination 23 constituted an unreasonable application of clearly established federal law); Delgadillo v. 24 Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (“Only if the state court’s decision does not meet 25 the criteria set forth in § 2254(d)(1) do we conduct a de novo review of a habeas petitioner’s 26 claims.”); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now 27 clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if 28 ///// 4 1 there is such error, we must decide the habeas petition by considering de novo the constitutional 2 issues raised.”). 3 “The relevant state court determination for purposes of AEDPA review is the last 4 reasoned state court decision.” Delgadillo, 527 F.3d at 925 (citing Ylst v. Nunnemaker, 501 U.S. 5 797, 804–05 (1991)). “[I]f the last reasoned decision adopts or substantially incorporates the 6 reasoning from a previous state court decision, [the court] may consider both decisions to ‘fully 7 ascertain the reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th 8 Cir. 2007) (citation omitted); see also Ayala v. Chappell, 829 F.3d 1081, 1094 (9th Cir. 2016) 9 (“We apply AEDPA’s standards to the state court’s last reasoned decision on the merits of a 10 petitioner’s claims.”). 11 12 ANALYSIS A. Petitioner’s Batson Claim 13 1. Batson Legal Framework 14 It is clearly established law under Supreme Court precedent that “the Equal Protection 15 Clause forbids the prosecutor to challenge potential jurors solely on account of their race.” 16 Batson v. Kentucky, 476 U.S. 79, 89 (1986). In Batson, the Supreme Court enumerated three 17 steps, “which together guide trial courts’ constitutional review of peremptory strikes.” Johnson v. 18 California, 545 U.S. 162, 168 (2005). 19 [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. 20 21 22 23 24 Id. (internal brackets, quotations, citations, and footnotes omitted).2 In Johnson, the Supreme 25 Court clarified the scope of Batson’s step one and reiterated that “a defendant satisfies the 26 2 27 28 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). 5 1 requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to 2 draw an inference that discrimination has occurred.” Id. at 170. 3 The question presented to the Supreme Court in Johnson was “whether Batson permits 4 California to require at step one that ‘the objector must show that it is more likely than not the 5 other party’s peremptory challenges, if unexplained, were based on impermissible group bias.’” 6 Id. at 167–68. This standard—referred to interchangeably as the “strong likelihood” or the “more 7 likely than not”—standard, was articulated by the California Supreme Court in People v. 8 Wheeler, 22 Cal. 3d 258, 280–81 (1978) and People v. Box, 23 Cal. 4th 1153, 1188 n.7 (2000) 9 and its progeny. See id. Relying on those cases, the California Supreme Court had held that its 10 “strong likelihood” standard was the same as Batson’s “reasonable inference” standard, and thus, 11 according to the California Supreme Court’s reasoning, Batson “permits a court to require the 12 objector to present, not merely ‘some evidence’ permitting the inference, but ‘strong evidence’ 13 that makes discriminatory intent more likely than not if the challenges are not explained.” Id. at 14 167 (quoting People v. Johnson, 30 Cal. 4th 1302, 1316 (2003)); see also People v. Johnson, 30 15 Cal. 4th at 1313 (“We reiterate what we implied in Wheeler and stated in Box: Wheeler’s terms 16 “strong likelihood” and “reasonable inference” state the same standard.”). In People v. Johnson 17 and Box, the California Supreme Court also stated that where a trial court denies a Wheeler 18 motion because it finds that no prima facie case of group bias was established, the reviewing 19 court is to affirm that ruling if the voir dire “record suggests grounds on which the prosecutor 20 might reasonably have challenged the jurors.” People v. Johnson, 30 Cal. 4th at 1325 rev’d sub 21 nom. Johnson v. California, 545 U.S. 162 (2005); People v. Box, 23 Cal. 4th at 1188. 22 After granting certiorari in Johnson, however, the United States Supreme Court reversed 23 the California Supreme Court’s judgment and explicitly rejected its reasoning and its holding that 24 the state’s “strong likelihood” standard is the same as the “reasonable inference” standard 25 required by Batson. Johnson, 545 U.S. at 166–170. Rather, the Supreme Court concluded “that 26 California’s ‘more likely than not standard’ is an inappropriate yardstick by which to measure the 27 sufficiency of a prima facie case,” and “is at odds with the prima facie inquiry mandated 28 by Batson.” Id. at 168, 173. The United States Supreme Court explained that: 6 1 2 3 4 5 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. 6 Id. at 170. The Supreme Court also emphasized the importance of Batson steps two and three, 7 and of proceeding with each of the three Batson steps in the proper order, explaining that “the 8 Batson framework is designed to produce actual answers to suspicions and inferences that 9 discrimination may have infected the jury selection process.” Id. at 172. 10 With regard to Batson’s second step, the Supreme Court noted that “[t]he inherent 11 uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless 12 and imperfect speculation when a direct answer can be obtained by asking a simple question.” Id. 13 at 172 (citing Paulino v. Castro, 371 F.3d 1083, 1090 (9th. Cir. 2004) (“[I]t does not matter that 14 the prosecutor might have had good reasons . . . [;] [w]hat matters is the real reason they were 15 stricken”) (emphasis deleted); Holloway v. Horn, 355 F.3d 707, 725 (3rd Cir. 2004) (speculation 16 “does not aid our inquiry into the reasons the prosecutor actually harbored” for a peremptory 17 strike)). “[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for 18 striking the juror, and it requires the judge to assess the plausibility of that reason in light of all 19 evidence with a bearing on it.” Miller-El v. Dretke, 545 U.S. 231, 251–52 (2005) (“Miller-El II”) 20 (“[W]hen illegitimate grounds like race are in issue, a prosecutor simply has got to state his 21 reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson 22 challenge does not call for a mere exercise in thinking up any rational basis.”). 23 At Batson’s third step, the burden shifts back to the defendant to demonstrate that the 24 race-neutral reason given by a prosecutor was pretextual and that the use of peremptory strikes 25 was motivated by race. Purkett v. Elem, 514 U.S. 765, 767 (1995) (“If a race-neutral explanation 26 is tendered, the trial court must then decide (step three) whether the opponent of the strike has 27 proved purposeful racial discrimination.”); see also Miller-El II, 545 U.S. at 239 (“The trial court 28 then will have the duty to determine if the defendant has established purposeful discrimination.”) 7 1 (quoting Batson, 476 U.S. at 98). Indeed, “[i]t is not until the third step that the persuasiveness of 2 the justification becomes relevant—the step in which the trial court determines whether the 3 opponent of the strike has carried his burden of proving purposeful discrimination.” Purkett, 514 4 U.S. at 768. This is because “the ultimate burden of persuasion regarding racial motivation rests 5 with, and never shifts from, the opponent of the strike.” Id. Nevertheless, it is only at step three 6 that the burden falls to defendant to convince the trial court that racial discrimination is occurring 7 in the prosecution’s employment of its peremptory strikes. See Snyder v. Louisiana, 552 U.S. 8 472, 485 (2008); Miller-El II, 545 U.S. at 239; Johnson, 545 U.S. at 170. 9 10 11 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 12 judgment and conviction to the California Court of Appeal for the Fifth Appellate District (“Fifth 13 DCA”), which affirmed the trial court’s judgment on April 11, 2014. (Doc. No. 30 at 2.) 14 Petitioner filed a petition for review in the California Supreme Court, which summarily denied his 15 petition on June 25, 2014. (Id.) Accordingly, the last reasoned state court decision relevant to 16 this federal court’s habeas review is the Fifth DCA’s decision: People v. Arciga, No. F064382, 17 2014 WL 1400962, at *2 (Cal. Ct. App. Apr. 11, 2014). See Delgadillo, 527 F.3d at 925 (citing 18 Ylst, 501 U.S. at 804–05). 19 The pending findings and recommendations appear to conclude that the Fifth DCA’s 20 decision is entitled to AEDPA deference. (Doc. No. 30 at 13–14) (concluding that “[p]etitioner 21 fails to rebut the presumption that the state court’s finding was correct”; “[p]etitioner has not 22 shown the [state appellate] court’s determination of [race-neutral reasons for each challenge] to 23 be unreasonable”; and “a fair-minded jurist could conclude that the trial judge did not err when it 24 did not find an inference of purposeful discrimination”; and “fair minded jurists could differ on 25 whether statistics here would be sufficient”). However, in reaching this conclusion, the pending 26 findings and recommendations do not discuss the legal standard that the state appellate court 27 applied in reviewing the state trial court’s denial of petitioner’s Batson motion, nor do they 28 analyze whether the Fifth DCA employed the wrong legal standard (i.e., a standard that is 8 1 contrary to clearly established federal law). The undersigned begins with addressing this critical 2 question because “when a state court employs the wrong legal standard, the AEDPA rule of 3 deference does not apply.” Cooperwood, 245 F.3d at 1046; see also Panetti, 551 U.S. at 948 (a 4 state court’s failure to apply the proper standard under clearly established federal law “allows 5 federal-court review . . . without deference to the state court’s decision” and “unencumbered by 6 the deference AEDPA normally requires.”); Tarango, 837 F.3d at 945; Castellanos v. Small, 766 7 F.3d 1137, 1146 (9th Cir. 2014) (“If the state court applies a legal standard that contradicts clearly 8 established federal law, we review de novo the applicant’s claims, applying the correct legal 9 standard to determine whether the applicant is entitled to relief.”). 10 If the Fifth DCA employed the wrong legal standard, then this court must review 11 petitioner’s Batson claim de novo. See Johnson v. Finn, 665 F.3d 1063, 1068–69 (9th Cir. 2011) 12 (where the state court employed the wrong standard for reviewing a Batson claim, the state 13 court’s findings are not entitled to deference and the federal court reviews the claim de novo) 14 (“Finn”).3 For the reasons explained below, the undersigned concludes that the state appellate 15 court did apply the wrong legal standard in reviewing the trial court’s denial of petitioner’s 16 Batson claim. Although the Fifth DCA briefly summarized Batson’s three-step framework and cited to 17 18 the United States Supreme Court’s decision in Johnson to describe the prima facie showing that a 19 defendant must make at Batson step one, see Arciga, 2014 WL 1400962, at *2–3, that court 20 nevertheless applied the wrong legal standard in reviewing the trial court’s determination that 21 petitioner had failed to make a prima facie showing of racial discrimination in the prosecution’s 22 use of peremptory challenges during jury selection. Specifically, the Fifth DCA explicitly stated 23 the legal standard that it was applying in its review as follows: 24 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 25 26 27 28 3 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. 9 1 affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question. 2 3 Arciga, 2014 WL 1400962, at *4 (quoting People v. Pearson, 56 Cal. 4th 393, 421 (2013)). 4 Based on this legal standard, the Fifth DCA “turn[ed], therefore, to the voir dire transcript to seek 5 evidence of grounds upon which the prospective jurors might reasonably have been challenged” 6 and held “that there were adequate reasons other than racial discrimination for each challenge.” 7 Id. That is, the Fifth DCA affirmed the trial court’s ruling because “the record of voir dire 8 contains grounds upon which the prosecutor could reasonably challenge the[] ten prospective 9 jurors,” and “even if a statistical disparity exists, a ruling of no prima facie case should be 10 affirmed if the ‘record suggests that the prosecutor had . . . race neutral reasons’ for excusing the 11 jurors.” Id. at *6–7 (quoting Pearson, 56 Cal. 4th at 422). The Fifth DCA’s decision relies 12 exclusively on this quoted language from the California Supreme Court’s decision in Pearson, 13 which, in turn quoted People v. Guerra, 37 Cal. 4th 1067, 1101 (2006), which in turn quoted 14 People v. Farnam, 28 Cal. 4th 107, 135 (2002), which itself relies on the California Supreme 15 Court’s decision articulating the “strong likelihood” standard stated in People v. Box, 23 Cal. 4th 16 1153 (2000). As noted above, however, in Johnson, the United States “Supreme Court squarely 17 rejected that doctrine of California law as contrary to Batson.” Finn, 665 F.3d at 1068. 18 That is, a state appellate court clearly acts contrary to clearly established federal law when 19 it bases its prima facie analysis on the discredited standard articulated by the California Supreme 20 Court in Box. Shirley v. Yates, 807 F.3d 1090, 1101 (9th Cir. 2015), as amended (Mar. 21, 2016) 21 (“We have made clear, [] that Box imposes too high a burden, and that state court decisions 22 applying it do not warrant deference under AEDPA, because they are ‘contrary to . . . clearly 23 established Federal law.’”) (citing 28 U.S.C. § 2254(d)(1)). Thus, in Shirley, the Ninth Circuit 24 held that the district court correctly concluded that the state appellate court’s analysis was 25 contrary to clearly established law because it relied on Box’s statement that “when the record 26 suggests grounds upon which the prosecutor might reasonably have challenged the jurors in 27 question, we affirm.” Id. (emphasis added). The Ninth Circuit affirmed the district court’s 28 reasoning that: 10 1 [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.” 2 3 4 5 6 7 Shirley v. Yates, No. 2:07-cv-01800-AK, 2013 WL 394713, at *2 (E.D. Cal. Jan. 30, 2013) 8 (quoting Johnson, 545 U.S. at 172). Here, the Fifth DCA also relied on the statement from Box—although it cited to the 9 10 decision in Pearson, the quoted statement remains the same. Arciga, 2014 WL 1400962, at *4. 11 The Fifth DCA reviewed the voir dire transcript to identify “grounds upon which the prospective 12 jurors might reasonably have been challenged,” and having come up with its own “adequate 13 reasons other than racial discrimination for each challenge,” affirmed the trial court’s denial of 14 petitioner’s Batson motion on that basis. Id. Accordingly, the Fifth DCA based its analysis on a 15 wholly discredited legal standard, and thus its decision is contrary to clearly established federal 16 law. See Finn, 665 F.3d 1069 (“The existence of ‘grounds upon which a prosecutor could 17 reasonably have premised a challenge,’ does not suffice to defeat an inference of racial bias at the 18 first step of the Batson framework.”); see also Currie v. McDowell, 825 F.3d 603, 609 (9th Cir. 19 2016) (concluding that the “state appellate court violated clearly established Federal law in its 20 Batson step one analysis by affirming because ‘the record suggest[ed] grounds upon which the 21 prosecutor might reasonably have challenged the jurors in question,’ whether or not those were 22 the reasons proffered”) (citation omitted); Williams, 432 F.3d at 1109 (“[T]he California Court of 23 Appeal [] reviewed all the evidence in the record concerning the challenged jurors and 24 determined that the record contained evidence for each juror that would support peremptory 25 challenges on non-objectionable grounds. This, however, does not measure up to the Supreme 26 Court’s pronouncement that the question is not whether the prosecutor might have had good 27 reasons, but what were the prosecutor’s real reasons for the challenges.”). 28 ///// 11 1 In addition, the Fifth DCA applied the wrong legal standard when it concluded that even if 2 a statistical disparity exists, a trial court’s ruling that a defendant has not made a prima facie case 3 should be affirmed if the record suggests that the prosecutor had race neutral reasons. See 4 Williams, 432 F.3d at 1108 (under Batson and Johnson, “to rebut an inference of discriminatory 5 purpose based on statistical disparity, the ‘other relevant circumstances’ must do more than 6 indicate that the record would support race-neutral reasons for the questioned challenges”) (citing 7 Batson, 476 U.S. at 96; Johnson, 545 U.S. at 169–70). 8 Having concluded that the Fifth DCA applied the wrong legal standard, one discredited by 9 the United States Supreme Court, and that its decision is therefore not entitled to AEDPA 10 deference, the undersigned will proceed to analyze petitioner’s Batson claim de novo. See 11 Shirley, 807 F.3d at 1101 (concluding that “it was appropriate for the district court to determine 12 de novo whether the petitioner had raised an inference of racial bias” after the district court 13 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 7 of petitioner; 8 3. 9 Following the appointment of counsel, the parties are directed to contact Courtroom Deputy Mamie Hernandez, at (559) 499-5652, or 10 MHernandez@caed.uscourts.gov, within twenty-one (21) days of service of this 11 order regarding the scheduling of a status conference regarding the setting of an 12 evidentiary hearing on petitioner’s Batson claim and the procedures governing that 13 hearing; and 14 4. The Clerk of the Court is directed to include Assistant Federal Defenders Ann 15 McClintock (Ann_McClintock@fd.org) and Carolyn Wiggin 16 (Carolyn_Wiggin@fd.org) in the CM/ECF’s Notice of Electronic Filing in this 17 action. 18 IT IS SO ORDERED. 19 20 Dated: June 15, 2022 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 35

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