Austin v. Superior Court CA4/2 (2024) · DecisionDepot
Austin v. Superior Court CA4/2
California Court of Appeal Feb 9, 2024 No. E080939MUnpublished
Filed 2/9/24 Austin v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RUSSELL LYNWOOD AUSTIN,
Petitioner, E080939
v. (Super.Ct.No. RIF1800692)
THE SUPERIOR COURT OF ORDER MODIFYING OPINION RIVERSIDE COUNTY, [NO CHANGE IN JUDGMENT] Respondent;
THE PEOPLE,
Real Party in Interest.
On the Court’s own motion, the opinion filed on January 25, 2024, is modified as
follows:
In the second paragraph on page 27 the sentence “The senate amendment to
Assem. Bill 256 provided the following language” is replaced with “The Legislative
Counsel’s Digest of Assembly Bill No. 256 (2021-2022 (Reg. Sess.) Summary Dig.,
pp. 93-94) provided the following language.”
1
Except for this modification, the opinion remains unchanged. The modification
Filed 1/25/24 Austin v. Superior Court CA4/2 (unmodified opinion)
See concurring opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RUSSELL LYNWOOD AUSTIN,
Petitioner, E080939
v. (Super.Ct.No. RIF1800692)
THE SUPERIOR COURT OF OPINION RIVERSIDE COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Bernard J. Schwartz,
Judge. Petition granted.
1
Steven L. Harmon, Public Defender, Brian G. Cosgrove, Allison Lowe, Deputy
Public Defenders; American Civil Liberties Union Capital Punishment Project, Claudia
Van Wyk, Robert Ponce; American Civil Liberties Union Foundation of Southern
California and Summer Lacey, for Petitioner.
Complex Appellate Litigation Group, Kirstin M. Ault, Anna-Rose Mathieson;
Boston University Center for Antiracist Research, Caitlin Glass, Asees Bhasin; Fred T.
Korematsu Center for Law and Equality and Robert S. Chang, as Amici Curiae for
Petitioner.
Cooley, Randall R. Lee; Reed Smith, Katelyn Kang; Robby L.R. Saldana and
Elizabeth Reinhardt, for Amici Curiae Dean Chemerinsky and Law Professors and
Legal Scholars, as Amici Curiae for Petitioner.
No appearance for Respondent.
Michael A. Hestrin, W. Matthew Murray and Kristen Allison, for Real Party in
Interest.
Petitioner Russell Lynwood Austin (Petitioner) was charged by the Riverside
County District Attorney’s Office (the District Attorney) with two counts of murder for
killing his girlfriend who was 12 weeks pregnant. It was further alleged that he used a
deadly and dangerous weapon, a knife, and was charged with the special circumstance
that he committed multiple murders. The District Attorney was seeking the death
penalty.
Petitioner filed a motion claiming the District Attorney’s decision to seek the
death penalty violated the California Racial Justice Act of 2020 (CRJA) (Assem. Bill
2
No. 2542 (2019-2020 Reg. Sess.) Stats. 2020, ch. 317, § 1) (Assem. Bill 2542), which
added section 745 to the Penal Code (first Motion).1 Section 745 was enacted to
prohibit the state from seeking or obtaining a criminal conviction on the basis of race.
This included that a defendant could not be charged with a more serious offense than
defendants of other races who have engaged in similar conduct and were similarly
situated. (§ 745, subd. (a)(3).)
The trial court denied the first motion without prejudice. Petitioner filed a
second motion providing additional evidence and argument. While a decision was
pending, the CRJA was amended by the Racial Justice for All Act of 2022 (Assem. Bill
Bill 256). The trial court ruled that Petitioner had failed to make a prima facie showing
of a violation as required under section 745, subdivision (c), and denied an evidentiary
hearing.
The trial court denied Petitioner’s motions finding that in order to make a prima
facie case of racial discrimination under the CRJA and Amended CRJA, Petitioner must
satisfy the following two-prong test: (1) Petitioner personally was being charged more
harshly than similarly situated defendants of other races or ethnicities; and (2) statistical
evidence shows a historic pattern of racial inequality in Riverside County’s capital
charging practice. The trial court found that Petitioner had satisfied the second prong,
but statistics alone were not enough to establish the first prong, and therefore, he failed
1 All further statutory references are to the Penal Code unless otherwise indicated.
3
to establish a prima facie case entitling Petitioner to an evidentiary hearing under the
CRJA and Amended CRJA.
Petitioner petitions this court for a writ of mandate directing the superior court to
(1) vacate its order denying Petitioner’s request for a hearing on his CRJA claim, and
(2) enter a new order granting an evidentiary hearing. Amici curiae briefs were
submitted in support of Petitioner by (1) the Fred T. Korematsu Center for Law and
Equity and several other centers for race, inequality and the law; and (2) Dean Erwin
Chemerinsky and 10 law professors and legal scholars. They contend that this court
should determine that in order to establish a prima facie case entitling Petitioner to an
evidentiary hearing in the trial court, a defendant need only show statistical and
aggregate evidence under the CRJA and Amended CRJA.
We agree in part with the trial court that based on the plain language of section
745, Petitioner was required to present not only statistical evidence of racial disparity in
the charging of the death penalty by the District Attorney but also evidence of
nonminority defendants who were engaged in similar conduct and were similarly
situated but charged with lesser offenses, to establish a prima facie case. The plain
language of section 745, subdivision (a)(3), requires evidence of similar conduct and
similarly situated defendants, and the legislative history sheds no light on what is
required to establish a prima facie case. There is nothing in the statute or the legislative
history that provides guidance as to what evidence must be presented to determine
similar conduct in order to establish a prima facie case. Let peremptory
4
However, as we explain post, based on the evidence presented in this case, which
included factual evidence of nonminority defendants who committed murder but were
not charged with the death penalty in cases involving similar conduct and who were
similarly situated, e.g. had stabbed their victims or committed multiple murders, and
statistical evidence that there was a history of racial disparity in charging the death
penalty by the District Attorney, Petitioner met his burden of establishing a prima facie
case under section 745, subdivision (a)(3). We need not determine based on the
evidence presented whether only statistical evidence of similar conduct and similarly
situated defendants would be sufficient to support a prima facie case. As such, the trial
court should have ordered an evidentiary hearing at which the People could produce
evidence of the relevant factors that were used to determine the charges against the
nonminority defendants who were involved in similar conduct and who were similarly
situated to petitioner, and provide any race-neutral reasons that it considered in deciding
to charge petitioner with the death penalty in this case. We grant the writ petition
ordering the trial court to conduct an evidentiary hearing.
FACTUAL AND PROCEDURAL HISTORY
A. FACTS AND CHARGES
The parties presented the following facts in the Petition and return: On August
29, 2008, Petitioner killed his ex-girlfriend in her apartment. At the time of her death,
the victim was 11 to 12 weeks pregnant with Petitioner’s baby. When law enforcement
arrived at the apartment, they found the victim with her throat cut. The victim’s two-
year-old son, K.C., was at the apartment during the murder but was unharmed.
5
Petitioner additionally provides in the Petition that during a counseling session
years after the victim’s murder, K.C. advised the therapist that his father, R.C., was
present in the apartment the night the victim was murdered. Petitioner was arrested on
February 6, 2018, based on DNA analysis completed on an unknown substance found
on the victim’s thigh. Petitioner had no prior criminal history and was 24 years old at
the time of the offense.
Real party in interest provides that K.C. was found naked next to the victim’s
body, covered in blood. It was clear he had been with her dead body for some time.
The victim’s throat had been cut nearly to the point of decapitation.
Petitioner was charged by the District Attorney in an information with one count
of murder (§ 187) of the victim, and with the special allegation that he personally used a
deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). In addition, he was
charged with one count of murder (§ 187) of a fetus. He was charged with the special
circumstances that he committed first degree murder and one or more additional
murders in the first or second degree (§ 190.2, subd. (a)(3)). On May 15, 2019, the
District Attorney provided notice to Petitioner that it intended “after review of all facts
and circumstances underlying the charges” and his background, to seek the death
penalty in the case.
B. FIRST MOTION FOR RELIEF UNDER CRJA
Petitioner filed his Motion on July 26, 2022, seeking an evidentiary hearing
pursuant to the CJRA. Petitioner contended that denial of the Motion would violate
Petitioner’s rights guaranteed by section 745, his right to equal protection of the law,
6
and be a miscarriage of justice. Petitioner provided an extensive history of racism in
California. Petitioner provided statistics regarding the charging of African-American
defendants in Riverside County from January 2016 through December 2021,2 which
were analyzed by Marisa Omori, Ph.D., a statistics professor. Petitioner argued this
evidence, along with Omori’s analysis, showed that African-American defendants
received the harshest punishment of any racial or ethnic group in Riverside County.
African-American defendants are charged with special circumstances in their murder
cases at a rate of 64.86 per 100,000 of the adult population; Caucasians are charged at a
rate of 5.00 per 100,000 of the adult population; and Hispanics are charged at a rate of
16.84 per 100,000 of the adult population. In addition, Riverside County filed a notice
of intent to seek the death penalty against 22 defendants between 2016 through 2021.
Per 100,000 of the adult population, 6.05 involved African-American offenders, 1.45 for
Hispanic offenders, and .29 for Caucasian offenders. Petitioner argued that this
statistical evidence was more than sufficient to make out a prima facie case under the
CRJA. Petitioner contended that African-Americans are charged with more murders,
special circumstances, and notices of intent to seek the death penalty than Caucasian
offenders, which showed a violation of section 745, subdivision (a)(3).
The District Attorney filed a response to the Motion. They contended that
Petitioner failed to show he was charged more seriously than defendants of other races,
ethnicities, or national origins who are similarly situated. Petitioner had not shown the
2 The data was collected by the Riverside County Public Defender’s Office.
7
various variables that were considered in charging a defendant. The District Attorney
argued that Petitioner had to compare the facts of cases involving nonminority
defendants to the instant case. It was impossible for the trial court to consider whether
petitioner was similarly situated based just on the statistics. Petitioner was charged with
a multiple-murder special circumstance and one of the victims was an unborn child,
which was a particularly heinous offense. The cases relied on by Petitioner did not
involve this combination of charging. Further, the Omori study was flawed as she
conceded no statistically significant difference in Caucasian and African-American
groups based on the small sample size, and involved juvenile cases, which are not
eligible for the death penalty.
Petitioner filed a reply to the People’s opposition to the Motion. Petitioner stated
that the history of racism provided in the Motion was relevant to whether he had met his
burden of making a prima facie case. Further, the studies provided by Petitioner were
sufficient to support he made out a prima facie case; they had met their similarly
situated requirement.
Petitioner filed supplemental evidence in support of the Motion on September 28,
2022. He submitted two further statistical studies performed by Dr. Nick Peterson of
the University of Miami and Dr. Frank Baumgartner of the University of North
Carolina, Chapel Hill. Both addressed the racial disparities in charging, sentencing, and
imposing the death penalty in Riverside County. Peterson’s study relied on information
on charging of cases in Riverside County between January 2007 and July 2019. The
information included every case in which murder was charged, every case that a special
8
circumstance was filed, every case in which the District Attorney sought the death
penalty, and every case in which the judge or jury imposed the death penalty. The list
included 800 cases.
Petersen concluded that although only 20 percent of all murder defendants were
African-American, they comprised 26 percent of those charged with special
circumstances, 39 percent of those who received death notices, and 36 percent of those
who received death sentences. In contrast, 25 percent of all murder defendants were
Caucasian, but only 18 percent received special circumstance charges, 9 percent
received death penalty notices, and 4 percent received death sentences. Petersen also
took into account whether legitimate case characteristics or other nonracial factors, such
as prior convictions, could account for the disparity.
Petersen controlled for defendant race/ethnicity and prior criminal history, victim
race/ethnicity, age, and gender, and other characteristics, such as multiple victims, use
of a firearm, and crime location. Even taking into account these variables, African-
American defendants were 1.71 times more likely to be charged with a special
circumstance, 9.06 times more likely to receive a death penalty notice, and 14.09 times
more likely to receive a death sentence than Caucasian defendants. This proved that
African-American defendants received special circumstances and death penalty notices
between 2007 and 2019 at significantly higher rates relative to their proportion of the
population. The death penalty was more frequently sought in cases involving multiple
victims and prior felony convictions in all cases. Cases involving non-Caucasian
9
victims were less likely to receive the death penalty than those cases involving a
Caucasian victim.
A further study was submitted that was prepared by Baumgartner. He found that
since 1972, minority defendants comprised 66 percent of older defendants sentenced to
death in Riverside County while Caucasian defendants comprised only 25 percent.
Petitioner argued that he had a low burden to make a prima facie showing under
section 745. All of the studies submitted supported that African-American defendants
in Riverside County were more likely to be charged with murder and the death penalty
to be sought than nonminority defendants. Riverside County’s capital system operated
in a racially disparate manner. The trial court should order an evidentiary hearing as
Petitioner had satisfied his burden under section 745, subdivision (c).
Petitioner included as exhibits the studies completed by Petersen and
Baumgartner. In addition, a Riverside County racial history timeline was included as an
exhibit.
Petitioner also filed a supplemental reply in support of motion for a hearing and
relief pursuant to the racial justice act. Petitioner was relying on the studies from
Omori, Baumgartner, and Petersen. Petitioner also noted that Governor Newsom had
signed the Amended CRJA. The changes made clarified that Petitioner was entitled to
an evidentiary hearing. The supplemental evidence presented by Petitioner on
September 28, 2022, established the existence of racial disparities even taking into
account “similarly situated” cases. Petitioner also argued that section 745, subdivision
(a)(4)(A), which involved longer and more severe sentences, was ripe for consideration.
10
Petitioner argued he had a low burden to make a prima facie case of a violation
of section 745, subdivision (a). Omori’s study alone met the prima facie showing. She
had looked at 689 cases in Riverside County from January 1, 2016, through January 1,
2022, for racial disparities. In 246 of those cases, at least one special circumstance was
charged, and in 22 the death penalty was sought. Overall, African-American defendants
were charged with murder and special circumstances more than Caucasian defendants,
relative to their population in Riverside County. As for the death penalty, of the 22
cases, African-American defendants consisted of seven of the defendants and Caucasian
defendants numbered two. This was statistically important based on their relative
population.
Moreover, the Amended CRJA had defined “similarly situated” to mean that
factors that are relevant in charging and sentencing are similar and do not require that
all individuals in the comparison group are identical. Petersen’s analysis included
controls for variables on capital charging and sentencing decisions, such as multiple
victims and prior felony convictions.
The District Attorney filed a response to the supplemental reply filed by
Petitioner after the Amended CRJA had been passed. Based on the changes to the
CRJA, the District Attorney argued it was clear that Petitioner must show in making out
a prima facie case more than just statistics. The trial court must look to all of the
relevant factors in charging and sentencing.
The matter was heard on October 28, 2022. Petitioner’s counsel argued that in
order to show a violation of section 745, a showing of intentional discrimination was
11
unnecessary. Moreover, Petitioner was not required to find identical cases to meet the
similarly situated burden. The evidence presented in the Motion was more than enough
to make out a prima facie case. According to Omori’s study, African-American
defendants were overrepresented in charging and seriousness of the charges in relation
to their representation in a population. Based on Omori’s study, there was such a great
disparity that “there’s more than a mere possibility that similarly situated defendants are
being treated differently.” Moreover, Petersen’s study had isolated criminal history,
racial variables, and severity of the case in his analysis.
The trial court inquired, “So you have to look at, certainly, the charges that . . .
Mr. Austin [is] facing, the facts and circumstances that are alleged in the crime, any
prior records that they may have, and all the other factors that I just discussed [such as
victim characteristics, completion of parole and probation, and facts of the case]. And
then somehow compare that to a nonminority defendant similarly situated with a similar
record and similar facts. . . . [¶] It’s not just a simple matter of looking at statistics.
We’re looking at the individual, the facts in that case.”
Petitioner argued that the above evidence was more properly considered at the
evidentiary hearing. The study by Petersen was sufficient for a prima facie showing.
Petitioner also argued the trial court was required to give the law a liberal interpretation
because it was an ameliorative law. The District Attorney argued that more than
statistics were required to make out a prima facie case. The trial court must look at the
specifics of the cases. The statistics could not capture the decisions made in charging
the death penalty.
12
The trial court first ruled that in order to obtain a hearing, a defendant was
required to show the similarly situated prong; Petitioner must show that he was being
discriminated against as shown by nonminority defendants who are similarly situated
but charged with lesser crimes. The trial court reviewed the wording of section 745.
The trial court found that a prima facie case had not been established. There was
no doubt that the second prong—a historical pattern of racism—had been shown.
However, Petitioner had failed to “offer any evidence to show that any systematic bias
has manifested in they themselves being more harshly charged than similarly situated
defendants of other races.” Petitioner “offered no evidence that a defendant of a
different race alleged to have committed domestic violence-related multiple murders of
a pregnant woman and her fetus would be treated less harshly.” Petitioner had failed to
make a prima facie case for a violation of section 745. The Motion was denied without
prejudice to allow Petitioner an opportunity to present additional evidence.
C. SECOND MOTION FOR RELIEF UNDER CRJA
On December 6, 2022, Petitioner filed his Motion for a Hearing and Relief
Pursuant to the Racial Justice Act (Second Motion). Petitioner sought an evidentiary
hearing and an ultimate ruling barring the death penalty in his case. The Second Motion
incorporated the evidence and arguments previously presented and provided further
evidence. Petitioner argued that he need only show statistical proof in making a prima
facie case and was not required to identify factually similar cases. The trial court’s
creation of a two-prong test contravened both the plain language of section 745 but also
the Legislature’s intent. Petitioner argued that the only showing that was required to be
13
made was through statistical and aggregate evidence that African-American defendants
who are accused of special-circumstance murder are similarly situated to Caucasian
people accused of murder but not charged with a special circumstance or the death
penalty.
Petitioner further argued it would be nearly impossible to find comparable cases
in order to show a prima facie case. Petitioner again relied on the studies from Omori,
Petersen, and Baumgartner. These studies showed a prima facie case. Petitioner also
argued that he had made a prima facie showing under both section 745, subdivision
(a)(3) and (a)(4)(A). Petitioner concluded that the studies were sufficient. Those
studies showed, “As a group, [Caucasian] people charged with murder, charged with
special circumstances, and subject to death notices are similarly situated to [African-
American] people who face each of these same charges. [Petitioner’s] evidence shows
that at each stage, [African-American] people are more likely to progress to the next
stage than similarly situated [Caucasian] people.”
Petitioner then provided evidence (although he disagreed it was necessary) of
similar cases charged by the District Attorney involving nonminority defendants
between 2016 and 2022. Petitioner recounted the facts of his own case.
Petitioner provided the background of several cases involving Caucasian persons
charged with special circumstance multiple murder but in which the District Attorney
did not seek the death penalty: Robert Lars Pape killed and burned three people. The
District Attorney did not seek the death penalty against Pape and he was serving a life
without possibility of parole (LWOP) sentence. Jared Bischoff killed a man who was
14
flirting with his girlfriend and then killed his girlfriend. Bischoff stabbed his girlfriend
six times until she bled to death. Bischoff was scheduled for trial, but the District
Attorney chose not to seek the death penalty. Andrew Burke stabbed to death his
adopted parents/grandparents and the District Attorney chose not to seek the death
penalty.
Petitioner also provided cases involving young Caucasian adult defendants:
James Coon, who was 26 years old at the time of his offense, robbed a clerk at a store at
gunpoint and then shot the clerk because he tried to take his photograph. The District
Attorney did not seek the death penalty against Coon. Melissa Unger, who was 23
years old at the time, was involved in a gang murder that involved the kidnapping and
torture of a victim. She pled guilty to voluntary manslaughter. Owen Skyler Shover,
who was accused of killing his 16-year-old girlfriend when he was 18 years old, and
was facing charges but the District Attorney did not seek the death penalty. He also
noted that Pape, Burke, and Bischoff were all young adults when they committed the
above murders. Petitioner was 24 years old when the alleged offense took place but he
was facing the death penalty.
Petitioner presented the “highly aggravated” murders by Caucasian defendants
for whom the District Attorney did not seek the death penalty. Maxamillion Eagle
raped and strangled a woman, throwing her body in a trash can. Eagle had a prior
conviction of assault with a deadly weapon. He was sentenced to LWOP. Noy Boukes
had a prior conviction of murder in 2016. Boukes drove his car to a location in Hemet
15
and shot and killed a fellow member of a White supremacist group. Boukes was given
an LWOP sentence in 2019. He had several other prior convictions.
Petitioner also referenced Caucasian defendants who stabbed their victims but
were not charged with the death penalty. In 2017, Mark Brierley allegedly killed a
woman by stabbing her multiple times in the chest, neck, and face. He was sentenced to
LWOP. Burke and Bischoff both stabbed their victims.
Finally, Petitioner provided cases involving Caucasian defendants who
committed murders and had prior convictions. Ronald Ricks was a Caucasian man with
a previous conviction of murder in Riverside County in 2017. He drove up to a house
and fired multiple shots at persons standing in front of the house, killing one man. Trial
was set for 2023 and the District Attorney did not seek the death penalty. Ricks had
several other prior convictions. Boukes and Eagle both had prior convictions.
Petitioner had no prior criminal history but these Caucasian men received lesser
charges.
Based on the foregoing, Petitioner argued that the factual comparisons illustrated
that the District Attorney’s decision to seek the death penalty against him meant that he
faced significantly harsher punishment than other similarly situated Caucasian
defendants. Petitioner presented numerous exhibits, which included the studies by
Omori, Baumgartner, and Petersen, and an exhibit outlining facts and charges in other
cases filed in Riverside County, including the cases outlined in the Second Motion. The
list was prepared by the Riverside County Public Defenders Office.
16
A hearing was held on January 20, 2023. The trial court noted that the CRJA
originally provided that racial bias could be shown by statistical evidence and that a
defendant need not show that he or she was prejudiced. The trial court acknowledged
this language, but noted that after this, section 745 was amended to include the similarly
situated language. It was again amended to require similar offenses and similarly
situated defendants in order to show a violation of section 745, subdivision (a)(3). In
the final, approved version, the language included that a defendant must be both
similarly situated and engage in similar conduct as nonminority defendants. The trial
court inquired of Petitioner’s counsel, “How else can I read that but the plain language
that it would require a comparison from individuals who commit similar conduct and
have similar offenses that they’re looking at?”
The trial court stated there were several reasons why the District Attorney would
charge the death penalty, including the severity of the case, the criminal history, and
whether the victim’s family wanted the death penalty. Something more than statistical
evidence was required in order to show similar conduct. Petitioner argued that the case-
specific evidence provided was sufficient to support a prima facie showing. The trial
court questioned whether the list took into account the wishes of the victim’s family in
seeking the death penalty. The trial court again reiterated the statistical evidence
showed the racial disparity necessary for the first prong. The matter was continued in
order for the District Attorney to file a response to the Second Motion.
The District Attorney filed their opposition to the Second Motion. They argued
the trial court should not rely on statistics alone as it would incentivize charging
17
Caucasian defendants with the death penalty. The People argued that 10 defendants
mentioned in the Second Motion were not similarly situated to Petitioner. The District
Attorney then provided reasons why the cases were different from Petitioner’s case:
(1) Brierly, who stabbed his wife 25 times when he intended to kill her new boyfriend
but “lost” it when he saw her, was given a lesser sentence based on the plea bargaining
by his counsel, the Riverside County Public Defender’s Office; (2) Burke had a well-
documented history of mental illness and Petitioner did not; (3) Unger’s case should be
reviewed in chambers with just the parties; (4) Pape had to be refiled because of the
strength of the evidence and it was not clear what acts were committed by Pape and
those by his codefendant who was under 18 years of age and could not be charged with
the death penalty; (5) Bischoff’s case involved a romantic relationship and several other
participants and Petitioner’s case differed in that it was a more vicious attack and a
toddler was present; (6) Coon had no criminal history, he suffered from mental health
issues and he only robbed the store for gas money; (6) Shover killed a man with whom
he was involved in committing crimes, his motive was unclear and the body was never
found so it could not be determined how the victim died; (7) Eagle was involved in a
killing with several other transients and there were evidentiary issues; (8) Boukes killed
a fellow gang member over a drug debt and only killed one person while Petitioner
killed the pregnant victim and her son was found in her pool of blood; and (9) Ricks
killed the victim in a drive-by shooting based on revenge but had no criminal history of
committing violent crimes or murder. The People concluded that Petitioner had failed
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to provide evidence that he was similarly situated to a defendant of another race who
was charged with less serious crimes than in this case.
Petitioner filed a reply. Petitioner once again argued that he only needed to
present statistical evidence to show that he was being charged with more serious crimes
than other similarly situated nonminority defendants. Petersen’s study was sufficient
for a prima facie case. Petitioner also encouraged the trial court to look to other
antidiscrimination statutes in California for guidance. This included discrimination in
employment and housing cases. These cases did not require a showing of intent to
discriminate or individual prejudice. Further, Petitioner had provided more than
adequate examples of similarly situated nonminority defendants for whom the District
Attorney chose not to seek the death penalty. He was entitled to a hearing on the merits
of his case.
The Second Motion was heard again on February 24, 2023. Petitioner argued
that aggregate evidence was sufficient if it took into account the similarly situated
requirement. The evidence presented took into account this requirement. The wishes of
the victim’s family and strength of the evidence were irrelevant to explain racial
differences in charging.
The trial court stated again that it was clear that pursuant to section 745, there
was a twofold analysis that needed to take place. First was a statistical showing. “The
other is viewing persons who are in a similar situation, having committed similar
conduct, as to whether or not there’s a disparity in their treatment.” Clearly, the first
element had been met by Petitioner. The trial court believed that factors such as
19
strength of the case, the victim’s family’s wishes, and the criminal history of the
defendant were all relevant factors in finding similarly situated defendants.
The trial court found, “It appears sufficiently clear to me that the final language
of the bill was intended to prevent the approach that was suggested by the defense,
which is to simply permit relief based merely on population-wide charging disparities.
Therefore, a statistical analysis by itself is not sufficient.” It further stated that
Petitioner had provided specific evidence to establish that he was being treated more
harshly compared to defendants of other races. “And this is precisely the type of
evidence that I believe is necessary and that the original motions lacked.” However,
Petitioner had still not met his burden.
The trial court noted the different factors that distinguished the proffered cases
from Petitioner. Petitioner did not have a prior record but his crime was vicious, nearly
decapitating his victim. Her young child was found near her body and her fetus did not
survive. The trial court found, “So in a comparison analysis, which the Court needs to
do to some degree to look at defendants that are similarly situated, it appears to the
Court that there were explanations given separate and apart from the pure issue of race
which distinguished those cases from the case[] of [Petitioner].” The Second Motion
was denied and Petitioner filed this petition for writ of mandate seeking an order from
this court that he had established a prima facie case of a violation of section 745 and
order an evidentiary hearing.
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DISCUSSION
Petitioner and amici curiae contend the trial court erred by employing a two-
prong test for making a prima facie case of racial discrimination pursuant to section
745, subdivision (a)(3) and (a)(4). Petitioner insists the trial court misinterpreted the
plain language, the legislative intent, and policy aims of section 745, subdivision (a)(3)
and (a)(4). The plain language supports only aggregate and statistical evidence is
required to make a prima facie case.
Real party in interest urges this court to uphold the superior court’s interpretation
of section 745, subdivision (a)(3). Real party in interest argues that holding as
requested by Petitioner, every defendant in Riverside County could file the same
motion, citing the same statistics, and be entitled to an evidentiary hearing. Real party
in interest insists that based on the plain language of the statute, a court in evaluating a
CRJA claim must consider factors relevant in charging and sentencing, including race-
neutral reasons proffered by the prosecution. Further, in looking at the legislative
history, the Legislature included a similarly situated requirement after the first draft. In
the Amended CRJA, the Legislature added a similarly situated definition, emphasizing
the importance of the factor. At a minimum, a defendant must prove under section 745,
subdivision (a)(3), that another defendant who is similarly situated received more
lenient treatment because of their race. Relying on statistics alone, the District Attorney
would have an incentive to seek more death penalty sentences on Caucasian defendants,
an inappropriate racial determination.
21
The parties agree that review in this case is de novo. “We review statutory
interpretation questions de novo.” (Ventura County Deputy Sheriffs’ Association v.
County of Ventura (2021) 61 Cal.App.5th 585, 590.)
A. SECTION 745
The CRJA, effective January 1, 2021, added section 745 to the Penal Code. The
Legislature enacted the CRJA with the express intent “to eliminate racial bias from
California’s criminal justice system” and “to ensure that race plays no role at all in
seeking or obtaining convictions or in sentencing.” (Assem. Bill 2542; Stats. 2020,
ch. 317, § 2, subd. (i); see Young v. Superior Court (2022) 79 Cal.App.5th 138, 149-
150.) Its goal is “to provide remedies that will eliminate racially discriminatory
practices in the criminal justice system, in addition to intentional discrimination.”
(Stats. 2020, § 2 subd. (j).) In 2023 the Governor signed into law the Amended CRJA,
which made several changes to section 745, effective January 1, 2023. Among the
changes to the statute the Amended CRJA included several definitions of terms used
and extended relief to any person whose case was final.
Section 745 was enacted, in part, to address McCleskey v. Kemp (1987) 481 U.S.
279, 295-299, 312, which found that there was “a discrepancy that appears to correlate
with race” in death penalty cases in Georgia, but the court would not intervene without
proof of a discriminatory purpose, concluding that we must simply accept these
disparities as “an inevitable part of our criminal justice system.”
A detailed outline of the language of section 745 and the legislative history is
necessary. Section 745, subdivision (a), provides that “[t]he state shall not seek or
22
obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race,
ethnicity, or national origin.” A defendant may establish a violation of the CRJA in
various ways. This case concerns the charging stage of the prosecutorial process.3
Subdivision (a)(3) of section 745, provides in full, “The defendant was charged or
convicted of a more serious offense than defendants of other races, ethnicities, or
national origins who have engaged in similar conduct and are similarly situated, and the
evidence establishes that the prosecution more frequently sought or obtained
convictions for more serious offenses against people who share the defendant’s race,
ethnicity, or national origin in the county where the convictions were sought or
obtained.” (Italics added.)4
The Legislature defined “similarly situated” in section 745, subdivision (h)(6), as
follows: “ ‘Similarly situated’ means that factors that are relevant in charging and
sentencing are similar and do not require that all individuals in the comparison group
3 Petitioner and amici curiae also refer to subdivision (a)(4)(A) of section 745. It provides, “A longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for that offense on people that share the defendant’s race, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins in the county where the sentence was imposed.” This provision only applies to persons who have been sentenced. This is further evidenced by the remedy for a violation of section 745, subdivision (a). Subdivision (e) of section 745 distinguishes between the remedies prior to judgment and those after the judgment. Petitioner has only been charged in this case. Accordingly, the proper provision entitling Petitioner to relief is section 745, subdivision (a)(3). We further decline to interpret section 745, subdivision (a)(4)(A), for future courts as requested by Petitioner as the issue is not properly before this court.
4 We highlight those terms that are defined in section 745.
23
are identical. A defendant’s conviction history may be a relevant factor to the severity
of the charges, convictions, or sentences. If it is a relevant factor and the defense
produces evidence that the conviction history may have been impacted by racial
profiling or historical patterns of racially biased policing, the court shall consider the
evidence.”
Section 745, subdivision (h)(1), provides a definition of “More frequently sought
or obtained” as that term appears in section 745, subdivision (a)(3). It provides, “ ‘More
frequently sought or obtained’ or ‘more frequently imposed’ means that the totality of
the evidence demonstrates a significant difference in seeking or obtaining convictions or
in imposing sentences comparing individuals who have engaged in similar conduct and
are similarly situated, and the prosecution cannot establish race-neutral reasons for the
disparity. The evidence may include statistical evidence, aggregate data, or
nonstatistical evidence. Statistical significance is a factor the court may consider, but is
not necessary to establish a significant difference. In evaluating the totality of the
evidence, the court shall consider whether systemic and institutional racial bias, racial
profiling, and historical patterns of racially biased policing and prosecution may have
contributed to, or caused differences observed in, the data or impacted the availability of
data overall. Race-neutral reasons shall be relevant factors to charges, convictions, and
sentences that are not influenced by implicit, systemic, or institutional bias based on
race, ethnicity, or national origin.”
“If a motion is filed in the trial court and the defendant makes a prima facie
showing of a violation . . . the trial court shall hold a hearing.” (§ 745, subd. (c).) A
24
prima facie showing means “that the defendant produces facts that, if true, establish that
there is a substantial likelihood that a violation of subdivision (a) occurred. For
purposes of this section, a ‘substantial likelihood’ requires more than a mere possibility,
but less than a standard of more likely than not.” (§ 745, subd. (h)(2).) If an evidentiary
hearing is ordered, “evidence may be presented by either party, including, but not
limited to, statistical evidence, aggregate data, expert testimony, and the sworn
testimony of witnesses.” (§ 745, subd. (c)(1).) “The defendant shall have the burden of
proving a violation of subdivision (a) by a preponderance of the evidence. The
defendant does not need to prove intentional discrimination.” (§ 745, subd. (c)(2).)
B. LEGISLATIVE HISTORY
As amended in the Senate on July 1, 2020, the draft of section 745 provided in
subdivision (b)(4), that a violation of section 745 occurred if, “The prosecution sought
or obtained a conviction for an offense for which convictions are more frequently
sought or obtained against people who share the defendant’s race, ethnicity, or national
origin than for defendants of other races, ethnicities, or national origins in the county
where the convictions were sought or obtained.” (Sen. Amend. to Assem. Bill 2542
(2019-2020 Reg. Sess.) Aug. 1, 2020.) There was no requirement that a prima facie
showing must be made prior to the holding of a hearing. There were not similarly
situated or similar conduct requirements as appears in the current section 745,
subdivision (a)(3).
On August 1, 2020, Assembly Bill 2542 was further amended to add a prima
facie requirement. The proposed section 745, subdivision (a)(4), provision was
25
amended to read, “The defendant was charged or convicted of a more serious offense
than defendants of other races, ethnicities, or national origins who commit similar
offenses and the evidence establishes that the prosecution more frequently sought or
obtained convictions for more serious offenses against people who share the defendant’s
race, ethnicity, or national origin in the county where the convictions were sought or
obtained.” A definition of “prima facie” was included. (Sen. Amend. to Assem. Bill
2542 (2019-2020 Reg. Sess.) Aug. 1, 2020, italics added.)
A Senate Committee on Public Safety history of the August 1, 2020 version,
referred to McCleskey. In addition, it provided, “This bill allows racial bias to be shown
by, among other things, statistical evidence that convictions for an offense were more
frequently sought or obtained against people who share the defendant’s race, ethnicity
or national origin in the county where the convictions were sought or obtained; . . . This
bill does not require the discrimination to have been purposeful or to have had
prejudicial impact on the defendant’s case.” (Sen. Com. on Public Safety, Analysis of
Assem. Bill 2542 (2019-2020 Reg. Sess.) Aug. 7, 2020.)
Further amendments were proposed on August 20, 2020. Proposed section 745,
subdivision (d)(4) now provided, “The defendant was charged or convicted of a more
serious offense than defendants of other races, ethnicities, or national origins who
commit similar offenses and are similarly situated, and the evidence establishes that the
prosecution more frequently sought or obtained convictions for more serious offenses
against people who share the defendant’s race, ethnicity, or national origin in the county
where the convictions were sought or obtained.” The definition of “prima facie
26
showing” was amended. (Sen. Amend. to Assem. Bill 2542 (2019-2020 Reg. Sess.)
Aug. 20, 2020, italics added.) Nothing in the legislative history provides the reason for
the addition of the “similarly situated” language or its impact on the prima facie
showing.
Assembly Bill No. 256 was introduced to amend section 745 on January 14,
2021. It initially just sought to expand relief to those whose cases were final prior to
2021. (Assem. Bill 256, Introduction of Bill.) The Senate amendment to Assembly Bill
256 provided the following language: “Under existing law, a conviction or sentence is
unlawfully imposed on the basis of race, ethnicity, or national origin if the defendant
proves, among other things, that the defendant was charged or convicted of a more
serious offense than defendants of other races, ethnicities, or national origins, or
received a longer or more severe sentence, and the evidence establishes that the
prosecution more frequently sought or obtained convictions for more serious offenses
against people who share the defendant’s race, ethnicity, or national origin, as specified,
or if a longer or more severe sentence was more frequently imposed on defendants of a
particular race, ethnicity, or national origin, as specified. Existing law requires this
determination to be made pursuant to statistical evidence or aggregate data, as specified.
[¶] This bill would allow that evidence to include nonstatistical evidence and would
require the court to consider the totality of the evidence in determining whether a
significant difference in seeking or obtaining convictions or in imposing sentences has
been established.” The current provision of section 745, subdivision (a)(3), was
proposed and the further definitions of relevant factors and changes to the definition of
27
“more frequently” obtained were proposed. (Sen. Amend. to Assem. Bill 256 (2021-
2022 Reg. Sess.) Aug. 11, 2022.)
Further amendments were proposed on August 24, 2022, which included the
current version of section 745, subdivision (a)(3), and all of the definitions outlined
ante. The “Assembly Floor Analysis” showed that the amendments were intended to
clarify that “more serious charges or longer or more severe sentences were ‘more
frequently sought or obtained’ or ‘more frequently imposed’ is based on the totality of
the evidence, which may include statistical evidence, aggregate data, or nonstatistical
evidence.” (Assembly Floor Analysis – Concurrence in Sen. Amend to Assem. Bill 256
(2021-2022 Reg. Sess.) August 30, 2022.) There was no further explanation of the
reason for the changes, and how this language impacted the prima facie showing or the
evidentiary hearing phase.
C. ANALYSIS
When interpreting a statute, we look to its words to “ascertain the intent of the
language is clear and unambiguous, there is no need for construction and courts should
not indulge in it. (Ibid.) “Because statutory language generally provides the most
reliable indicator of that intent [citation], we turn to the words themselves, giving them
their ‘usual and ordinary meanings’ and construing them in context. [Citation.] ‘ “If
there is no ambiguity in the language of the statute, ‘. . . the Legislature is presumed to
have meant what it said, and the plain meaning of the statute governs.’ ” ’ ” (People v.
Lawrence (2000) 24 Cal.4th 219, 230-231.) “If the language of a statutory provision
28
remains unclear after we consider its terms, structure, and related statutory provisions,
we may take account of extrinsic sources—such as legislative history—to assist us in
discerning the relevant legislative purpose.” (Gund v. County of Trinity (2020) 10
Cal.5th 503, 511.)
1. PRIMA FACIE CASE REQUIREMENTS
Section 745, subdivision (c)(1), makes it clear that at an evidentiary hearing,
evidence may include “statistical evidence, aggregate data, expert testimony, and the
sworn testimony of witnesses.” However, it is not clear what type of evidence is
necessary to prove a prima facie case of a violation of section 745, subdivision (a)(3).
The plain language of section 745, subdivision (a)(3), clearly provides that in order to
show a violation, a defendant must show that he was charged with a more serious
offense than defendants of other races “who have engaged in similar conduct and are
similarly situated,” and “that the prosecution more frequently sought or obtained
convictions for more serious offenses against people who share the defendant’s race,
ethnicity, or national origin in the county where the convictions were sought or
obtained.” As stated, “ ‘More frequently sought or obtained,’ ” “means that the totality
of the evidence demonstrates a significant difference in seeking . . . convictions . . .
comparing individuals who have engaged in similar conduct and are similarly situated,
and the prosecution cannot establish race-neutral reasons for the disparity.” (§ 745,
subd. (h)(1).) Despite these definitions, there is nothing in the plain meaning of the
statute that provides what evidence is necessary to establish a prima facie case of a
violation of section 745, subdivision (a)(3).
29
The legislative history does not give any insight into the required proof to make a
prima facie showing. In its original proposed form, there was no similarly situated nor
similar conduct requirement as appears in section 745, subdivision (a)(3), nor a
requirement that a prima facie showing was required prior to a hearing. However, the
statute evolved to include these requirements and we must give meaning both to these
changes made by the Legislature and the plain meaning of the statute.
Petitioner and amici curiae focus on the “similarly situated” language in section
745, subdivision (a)(3). Petitioner claims that the plain language of section 745,
subdivision (a)(3), permits a defendant to establish a CRJA violation by making one
evidentiary showing based on statistical proof. Petitioner insists that in order to prevail
in showing a prima facie case under the CRJA, a defendant “would have to show—and
could make the showing with statistical or aggregate evidence—that [African-
American] people accused of special-circumstance murder are similarly situated to
[Caucasian] people accused of murder but not charged with a special circumstance.”
Aggregate evidence can be used to show both the greater frequency of punitive
treatment and similar situations of comparators. However, Petitioner does not explain
in either the Petition or traverse the importance of the language that Petitioner must
show that he was “engaged in similar conduct” as other nonminority defendants in
addition to showing he was similarly situated.
In the amici brief filed by Dean Erwin Chemerinsky and other law professors,
they also focus on the similarly situated language. They contend Petitioner was not
required to provide exact comparators to establish a prima facie case. They do not
30
address the “similar conduct” language. The Korematsu Center for Law and Equality
contends that the statistical studies presented by Petitioner were sufficient to establish a
prima facie case. Korematsu argues that the trial court “ignored this legislative
directive” and imposed a nearly insurmountable barrier to making a prima facie
showing of a CRJA violation. They insist that statistical analysis of racial disparities
alone can show more than a “mere possibility” of disparate treatment based on race, and
that statistical analysis is enough without knowing the individual circumstances. The
studies by Omori, Petersen, and Baumgartner were sufficient to show more than a
“mere possibility” of a violation of subdivision (a) of section 745. However, the brief
also does not address the “similar conduct” language.
At oral argument, Petitioner’s counsel did acknowledge that there is a
requirement that the evidence must establish similar conduct. Petitioner’s counsel also
stated that similar conduct could be shown by statistics alone, factual evidence or a
combination of both types of evidence.
The plain language of the statute supports that as part of the prima facie showing,
a defendant must show that nonminority defendants are engaged in similar conduct.
“Conduct” is defined as “a mode or standard of personal behavior especially as based on
moral principles.” (Merriam–Webster’s Online Dict. (2023) < http://www.merriam-
webster.com/dictionary> [as of Jan. 8, 2024] definition noun.) In criminal cases,
Evidence Code sections 1108 and 1109 allow for admission of uncharged “conduct”
that is similar to the current charged offense to prove that the person did in fact commit
the current charged acts. This involves the admission of the facts of the uncharged
31
similar conduct. (See Evid. Code, §§ 1108, 1109; People v. Nguyen (2010) 184
Cal.App.4th 1096, 1115-1118.) The Legislature, prior to using the term “similar
conduct,” used the term “similar offenses,” in addition to the similarly situated
language. Similar “offense” language has been used in the discussion of admission of
other crimes to help show motive, intent, premeditation, or presence of a common
design or plan. (See People v. Balcom (1994) 7 Cal.4th 414, [“evidence that defendant
committed uncharged similar offenses would have some relevance regarding
defendant’s intent in the present case.”].) “With particular regard to the determination
of relevance, ‘. . . the trial court must look behind the label describing the kind of
similarity or relation between the other offense and the charged offense; it must
examine the precise elements of similarity between the offenses with respect to the issue
for which the evidence is proffered and satisfy itself that each link of the chain of
inference between the former and the latter is reasonably strong.’ “ (People v. Enos
(1973) 34 Cal.App.3d 25, 35.) While it is unclear as to why the Legislature changed the
term “similar offense” to “similar conduct,” both traditionally have referred to the
underlying facts of the crimes and not simply the charged crimes. Since the Legislature
did not provide a definition of “similar conduct” we rely on the plain meaning, which
refers to “behavior” of a person on a particular occasion that logically refers to the
underlying facts of the crimes rather than just a recitation of the charged crime, and as
the term has traditionally been used in other criminal cases.
While we may agree with Petitioner that only relying on the word “similarly
situated” and the definition in the Amended CRJA, it may be sufficient to look only at
32
similar crimes, such as murder, to show how an African-American person may be
charged more harshly than a nonminority defendant on these cases and that this could be
shown by only statistical evidence. It seems clear to this court that “similar conduct”
requires some sort of review of the underlying facts of the other cases. While there may
be a situation in which statistics could somehow show similar conduct and similarly
situated amongst defendants, in this case, Petitioner presented the underlying facts of
several cases in which the District Attorney did not seek the death penalty for non-
minority defendants. As such, we need not determine if statistics alone could meet the
prima facie burden as factual evidence here was presented to establish similar conduct.
As stated, the language of section 745 does not clarify what must be shown at the
prima facie stage and what should be decided at the evidentiary hearing. However, it is
clear from the language that to prove a prima facie case of a violation under section 745,
subdivision (a)(3), the evidence must establish that Petitioner was similarly situated and
engaged in similar conduct with other nonminority defendants who were charged with
lesser crimes, and that there was racial disparity in the District Attorney’s capital
charging system. Petitioner’s counsel conceded at oral argument that factual evidence
of similar conduct could support a prima facie case. The evidence presented by
Petitioner in the Second Motion of other current cases involving nonminority
defendants was proper evidence of similar conduct. Based on this factual evidence, we
need not determine if mere statistical evidence that compares groups who are engaged
in similar conduct and similar situations may be enough to make a prima facie showing
under section 745.
33
2. BURDEN OF SHOWING A PRIMA FACIE CASE
The question then remains whether the trial court erred by finding that this
evidence was insufficient to establish a prima facie case by requiring that Petitioner
provide an explanation of other relevant factors in sentencing at the prima facie stage,
such as whether the victim’s family supported seeking the death penalty, to explain the
racial disparity in seeking the death penalty. It is not clear from either the plain
language of the statute or the legislative history at what stage the trial court considers
this evidence and what type of evidence is relevant to showing a prima facie case or
proving a violation at an evidentiary hearing.
Amici curiae argue that placing the burden on the section 745 movant to address
the nondiscriminatory reasons for charging as part of a prima facie case is inconsistent
with existing antidiscrimination law and the process in section 745. Further, the plain
language of the statute places the burden of producing race-neutral reasons on the
prosecution. They further argue that many of the variables cannot be attained by a
defendant at the prima facie stage of litigation. But the briefs provide little assistance in
helping this court determine what must be shown in order to establish a prima facie
case. While the briefs argue statistics showing that Petitioner was similarly situated to
nonminority defendants who were charged with less serious crimes is sufficient, as set
forth ante this ignores the plain language of the statute that requires not only a showing
of similarly situated defendants but also those engaged in similar conduct. Further, it
ignores that the definition of similarly situated provides that “factors that are relevant in
charging and sentencing are similar.” (§ 745, subd. (h)(6).)
34
A recent Court of Appeal case from San Francisco looked to habeas corpus law
to determine the standard for making a prima facie case. In Finley v. Superior Court
(2023) 95 Cal.App.5th 12 (Finley), an African-American defendant brought a motion in
the trial court alleging a violation of the CRJA based on his vehicle being searched
while he was parked in a known high-crime area. He provided evidence that the officer
had no logical nonracial reason for stopping and searching him and provided statistical
evidence that African-American persons in San Francisco are far more likely to be
stopped by police than other groups. (Id. at pp. 17-18.)5 The trial court denied the
motion finding that a prima facie case had not been met. On appeal, the defendant
argued that the trial court improperly weighed the evidence in concluding that he did not
make a prima facie case. (Id. at p. 20.)
On appeal, the court looked to the prima facie standard applicable to a petition
for a writ of habeas corpus, noting that there were no cases interpreting section 745. It
noted in the habeas context, “[t]o establish a prima facie showing for habeas corpus
relief, a petitioner ‘should both (i) state fully and with particularity the facts on which
relief is sought [citations], as well as (ii) include copies of reasonably available
documentary evidence supporting the claim, including pertinent portions of trial
transcripts and affidavits or declarations.’ ” (Finley, supra, 95 Cal.App.5th at p. 21.) It
5 The defendant in Finley brought his claim pursuant to section 745, subdivision (a)(1), which provides, “[t]he judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin.”
35
concluded that in order to show a prima case under the CRJA, a defendant “must state
fully and with particularity the facts on which relief is sought, and include copies of
reasonably available documentary evidence supporting the claim. The court should
accept the truth of the defendant’s allegations, including expert evidence and statistics,
unless the allegations are conclusory, unsupported by the evidence presented in support
of the claim, or demonstrably contradicted by the court’s own records. [Citation.] And
again, the court should not make credibility determinations at the prima facie stage.”
(Id. at p. 23, fn. omitted.)
As we have stated, the Legislature did not provide a standard for making a prima
facie case. However, while it is not possible for this court to know the intended
standard under section 745, Finley’s analysis provides a reasonable standard based on
long-standing habeas corpus law.
Here, it is clear to this court that the statistical evidence of racial disparity
presented by way of the studies by Omori, Petersen, and Baumgartner was sufficient to
show a prima facie case of racial disparity in the charging of the death penalty in
Riverside County. Moreover, Petitioner provided evidence to show nonminority
defendants in Riverside County were charged with lesser crimes despite being engaged
in similar conduct as Petitioner, e.g. stabbings or multiple murders. The trial court
found that Petitioner had failed to provide cases that were similarly situated based on
other factors in the cases involving nonminority defendants. It concluded there could be
other reasons that the death penalty may not have been sought in those cases. This
included whether the victim’s family wanted the District Attorney to pursue the death
36
penalty. Hence, it placed the burden on Petitioner at the prima facie stage to prove that
the factors relevant in charging the nonminority defendants were similar to his case, and
arguably, prove there were no race-neutral reasons for the differences in the charges.
The language of the statute and the legislative history give this court no guidance
as to how or when a defendant must prove that “factors that are relevant in charging . . .
are similar. . . .” (§ 745, subd. (h)(6).) However, section 745, subdivision (h)(1),
provides that the District Attorney is responsible for providing race-neutral reasons for
the disparity in charging Petitioner with the death penalty. As stated, the definition in
means “the totality of the evidence demonstrates a significant difference in seeking or
obtaining convictions . . . comparing individuals who have engaged in similar conduct
and are similarly situated, and the prosecution cannot establish race-neutral reasons for
the disparity.”
The statute provides that evidence of race-neutral reasons for racial disparity is to
be presented by the District Attorney, not Petitioner. As such, it follows that the
presentation of evidence of race-neutral reasons is a defense after the prima facie case
has been shown. It is not entirely clear if the burden also falls on the District Attorney
to show the relevant factors that were used in deciding to charge both the nonminority
defendants and Petitioner. As defined, race-neutral reasons “shall be relevant factors to
charges . . . that are not influenced by implicit, systemic, or institutional bias based on
race, ethnicity, or national origin.” (§ 745, subd. (h)(1).)
37
Based on the foregoing, if the defendant provides statistical evidence showing a
racial disparity in the charging of nonminority defendants and African-American
defendants, and provides evidence of nonminority defendants who engage in similar
conduct and are similarly situated but were charged with lesser crimes than the charged
African-American defendant, that this is sufficient to show there was more than a mere
possibility that a violation of section 745, subdivision (a), has occurred. As such, a
defendant has met his burden of establishing a prima facie case. An evidentiary hearing
should be ordered at that point to consider all of the relevant factors in charging and
allow the District Attorney to present race-neutral reasons for the disparity in seeking
the death penalty.
While we cannot establish a bright-line rule of what constitutes sufficient
evidence of “similar conduct” in all cases, here, Petitioner in the Second Motion
provided the facts of several cases that shared many of the same characteristics as this
case, including other stabbings and multiple murders committed by nonminority
defendants who were not charged with the death penalty. In addition, Petitioner
presented ample evidence that the District Attorney’s capital system more frequently
sought convictions for more serious offenses against African-American defendants.
This was enough to provide more than a “mere possibility” that a violation of section
745, subdivision (a)(3), had occurred. The trial court erred by finding Petitioner did not
establish a prima facie showing of a violation. Once Petitioner presented this evidence,
the trial court should have ordered an evidentiary hearing at which the burden shifted to
the District Attorney to show the race-neutral reasons for the disparity in seeking the
38
death penalty against Petitioner, which include the relevant factors to charges that were
not influenced by implicit or systemic racial bias. The trial court, after receiving such
evidence, could then make a decision based on the totality of the evidence.
DISPOSITION
Let a writ of mandate issue directing the Superior Court of Riverside County to
vacate its order denying Petitioner’s request for a hearing, and to conduct an evidentiary
hearing as set forth in this opinion. The stay ordered on May 4, 2023, is LIFTED.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
I concur:
CODRINGTON J.
39
[Austin v. Superior Court, E080939]
MENETREZ, J., Concurring.
Defendant Russell Lynwood Austin was charged in Riverside County Superior
Court with murder with special circumstances, and the prosecution gave notice that it
intended to seek the death penalty. Austin filed a motion for a hearing under the
California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1) (RJA). Austin, who is
Black, presented statistical evidence showing significant racial disparities concerning the
death penalty in Riverside County. The evidence showed that Black defendants are
charged with murder, charged with special circumstances, and subject to death notices at
rates far higher than their proportion of the adult population in Riverside County, and that
the corresponding rates for White defendants are far lower than their proportion of the
adult population. Austin’s statistical evidence also included regression analyses showing
that (1) “[e]ven after controlling for important legally relevant factors like the presence of
multiple victims or a felony, logistic regression results indicate that murders with Black
and Hispanic defendants are more likely to involve a special circumstance, a death notice,
and a death verdict,” (2) similar disparities occur with respect to Black victims and White
victims, and (3) the disparities “are especially pronounced in cases involving White
victims and minority defendants.”
The trial court denied Austin’s motion without prejudice, ruling that more than
statistical evidence is required to make a prima facie case under the RJA. Austin then
filed a second motion seeking the same relief, supported both by the statistical evidence
proffered in support of the first motion and by additional, nonstatistical evidence, in an
1
effort to meet the standard set by the court when it denied the first motion. The court
denied the second motion, concluding that Austin’s evidence was still not sufficient to
make a prima facie case.
In his petition for writ review of the trial court’s rulings, Austin argues that
statistical evidence can be sufficient on its own to make a prima facie case of a violation
of the RJA, and he argues that his statistical evidence was in fact sufficient. I agree, and I
would grant the petition on that basis.
A. Statutory Background
The RJA provides that “[t]he state shall not seek or obtain a criminal conviction or
seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.”
(Pen. Code, § 745, subd. (a); unlabeled statutory citations are to this code.) The statute
further “sets forth four categories of conduct, any of which, if proved, is enough to
‘establish’ a violation of section 745, subdivision (a).” (Young v. Superior Court (2022)
79 Cal.App.5th 138, 147 (Young).) One of the categories under which Austin seeks relief
is subdivision (a)(3) of section 745: “The defendant was charged or convicted of a more
serious offense than defendants of other races, ethnicities, or national origins who commit
similar offenses and are similarly situated, and the evidence establishes that the
prosecution more frequently sought or obtained convictions for more serious offenses
against people who share the defendant’s race, ethnicity, or national origin in the county
where the convictions were sought or obtained.” The statute also explains that “‘[m]ore
frequently sought or obtained’ or ‘more frequently imposed’ means that the totality of the
evidence demonstrates a significant difference in seeking or obtaining convictions or in
2
imposing sentences comparing individuals who have engaged in similar conduct and are
similarly situated, and the prosecution cannot establish race-neutral reasons for the
disparity.” (§ 745, subd. (h)(1).)
If a defendant files a motion alleging a violation of subdivision (a) of section 745,
and the defendant “makes a prima facie showing” of such a violation, then “the trial court
shall hold a hearing.” (§ 745, subd. (c).) The statute defines “prima facie showing” as
follows: It “means that the defendant produces facts that, if true, establish that there is a
substantial likelihood that a violation of subdivision (a) occurred. For purposes of this
section, a ‘substantial likelihood’ requires more than a mere possibility, but less than a
standard of more likely than not.” (§ 745, subd. (h)(2).)
At the subsequent hearing conducted if the defendant makes a prima facie
showing, “evidence may be presented by either party, including, but not limited to,
statistical evidence, aggregate data, expert testimony, and the sworn testimony of
witnesses. The court may also appoint an independent expert. For the purpose of a
motion and hearing under this section, out-of-court statements that the court finds
trustworthy and reliable, statistical evidence, and aggregated data are admissible for the
limited purpose of determining whether a violation of subdivision (a) has occurred.”
(§ 745, subd. (c)(1).) At the hearing, the defendant bears the burden of proof by a
preponderance of the evidence, but “[t]he defendant does not need to prove intentional
discrimination” in order to prevail. (§ 745, subd. (c)(2).)
3
B. McCleskey, the RJA, and Statistical Evidence
In my view, the relationship between the RJA and McCleskey v. Kemp (1987) 481
U.S. 279 (McCleskey) shows that the trial court’s ruling—that statistical evidence cannot
be sufficient to make a prima facie case—cannot be correct.
In McCleskey, a defendant who had been sentenced to death in Georgia argued
that his conviction and sentence were unconstitutional because statistical evidence
“show[ed] a disparity in the imposition of the death sentence in Georgia based on the race
of the murder victim and, to a lesser extent, the race of the defendant,” a disparity that
persisted “even after taking account of 39 nonracial variables.” (McCleskey, supra, 481
U.S. at pp. 286-287.) The Supreme Court rejected the defendant’s constitutional claim,
concluding that the statistical evidence “[a]t most . . . indicates a discrepancy that appears
to correlate with race.” (Id. at p. 312.) The court reaffirmed “the basic principle that a
defendant who alleges an equal protection violation has the burden of proving ‘the
existence of purposeful discrimination.’” (Id. at p. 292.) And the court concluded that
the statistical evidence before it was “clearly insufficient to support an inference that any
of the decisionmakers in McCleskey’s case acted with discriminatory purpose.” (Id. at
p. 297.) Four justices dissented, with Justice Brennan observing that the majority’s
concern “that recognition of McCleskey’s claim would open the door to widespread
challenges to all aspects of criminal sentencing . . . seems to suggest a fear of too much
justice.” (Id. at p. 339 (dis. opn. of Brennan, J.).)
“There is little doubt which side of the McCleskey debate our Legislature has
aligned California with by statute.” (Young, supra, 79 Cal.App.5th at p. 152.) The RJA’s
4
legislative findings cite McCleskey for the proposition that “[e]xisting precedent . . .
accepts racial disparities in our criminal justice system as inevitable” (Assem. Bill No.
2542 (2019-2020 Reg. Sess.) § 2, subd. (f) (Assembly Bill 2542)), and the findings then
state that “[i]t is the intent of the Legislature to reject the conclusion that racial disparities
within our criminal justice are inevitable, and to actively work to eradicate them” (id.,
subd. (i)). Directly contrary to McCleskey’s requirement that an equal protection
claimant prove “purposeful discrimination” (McCleskey, supra, 481 U.S. at p. 292), the
findings acknowledge the existence of “implicit bias,” which is “often unintentional and
unconscious,” and the findings express the Legislature’s intent “to remedy the harm to
the defendant’s case and to the integrity of the judicial system” caused by such bias
(Assem. Bill 2542, § 2, subd. (i)). Accordingly, the RJA provides that “[t]he defendant
does not need to prove intentional discrimination.” (§ 745, subd. (c)(2).)
Considered in light of that background, the trial court’s conclusion that statistical
evidence cannot be sufficient to make a prima facie case under the RJA must be
mistaken. McCleskey held that statistical evidence cannot be sufficient to prove
purposeful discrimination and hence cannot be sufficient to prevail on an equal protection
claim. In enacting the RJA, the Legislature expressly rejected McCleskey and the
requirement to prove intentional discrimination, expressly seeking to provide remedies
for implicit bias even though it is “often unintentional and unconscious” (Assem. Bill
2542 (2019-2020 Reg. Sess.) § 2, subd. (i)). Thus, it cannot reasonably be denied that the
Legislature intended that relief be more broadly available under the RJA than under
McCleskey. But if the trial court were right that statistical evidence cannot be sufficient
5
even for a prima facie case under the RJA, then the RJA would be narrower than
McCleskey, which held only that statistical evidence cannot be sufficient to prevail.
Other aspects of the statutory language further support that conclusion. First, the
Legislature set a low standard for a prima facie case under the RJA: The defendant need
only show that there is “more than a mere possibility” that subdivision (a) of section 745
has been violated. (§ 745, subd. (h)(2); see also Finley v. Superior Court (2023) 95
Cal.App.5th 12, 21-22 [discussing the standard for a prima facie case under the RJA,
which is lower than the prima facie standard for writs of habeas corpus].) It is hard to see
how the following three propositions can be reconciled: (1) McCleskey held that
statistical evidence by itself is not sufficient to prevail; (2) the Legislature intended to
create a broader remedial scheme than McCleskey; but (3) the Legislature provided that
statistical evidence by itself is not sufficient even to show more than a mere possibility of
prevailing. The reasonable inference is that statistical evidence can be sufficient to make
a prima facie case.
Second, the RJA provides that for purposes of a claim of disparate treatment under
subdivision (a)(3) of section 745, the burden is on the prosecution to “establish race-
neutral reasons for the disparity.” (§ 745, subd. (h)(1); see § 745, subd. (a)(3).) It
follows that in order to prevail on a claim under subdivision (a)(3) of section 745 a
defendant is not required to negate every possible race-neutral reason for the disparate
treatment. Rather, the burden is on the prosecution to prove such reasons. A fortiori, the
defendant need not negate every possible race-neutral reason for the disparate treatment
6
in order to make a prima facie case. Showing the disparate treatment itself—which can
be done through statistical evidence—is enough.
Nothing in the statutory language requires a contrary conclusion. The trial court
focused on the requirement in subdivision (a)(3) of section 745 that “[t]he defendant was
charged or convicted of a more serious offense than defendants of other races, ethnicities,
or national origins who have engaged in similar conduct and are similarly situated.”
(Italics added.) The court concluded “that there has to be some showing more than
statistical analysis that individually these defendants . . . are being discriminated against,
vis-a-vis, nonminority defendants that are similarly situated, with similar cases, charges,
and all of the other factors that go into it.” The court thus appears to have inferred from
the statutory language that Austin needed to produce evidence that there was another
defendant who was similar to Austin in all material respects (“all of the other factors that
go into it”) but as to whom the prosecution did not seek the death penalty.
No such inference is warranted. Again, if statistical evidence cannot be sufficient
for a prima facie case under the RJA, then the RJA is narrower than McCleskey despite
the Legislature’s expressed intent to make it broader. The RJA’s inclusion of the words
“similarly situated” does not compel such an incongruous interpretation, because an
alternative interpretation is readily available: Statistical techniques such as regression
analysis can show that racial disparities exist even when one controls for various relevant
characteristics, meaning that racial disparities exist among defendants who are similarly
situated (i.e., defendants who share those relevant characteristics). The statute’s
reference to defendants who are “similarly situated” thus does not mean that a defendant
7
must prove, at the prima facie stage, that there is at least one other defendant who is
identical except for race and has an identical case except for race but who was treated
less harshly. Moreover, the effect of the trial court’s interpretation would be to put the
burden on the defendant, at the prima facie stage, to negate every possible race-neutral
reason for the racial disparities shown by the statistical evidence. That conflicts with the
statutory language, which puts the burden on the prosecution to “establish race-neutral
reasons for the disparity.” (§ 745, subd. (h)(1).)
For all of the foregoing reasons, I conclude that the trial court erred by ruling that
more than statistical evidence is required to make a prima facie case under the RJA.
Moreover, the district attorney does not otherwise challenge the sufficiency of Austin’s
statistical evidence, and the evidence is clearly sufficient to make a prima facie case.
Austin’s statistical evidence appears to be at least as strong as the statistical evidence at
issue in McCleskey, and given that statistical evidence can be sufficient to make a prima
facie case, I see no basis to conclude that Austin’s evidence fails to show more than a
mere possibility of proving a violation of section 745, subdivision (a).
Finally, there is an aspect of the People’s argument that I believe should be briefly
addressed. In their return to Austin’s writ petition, the People claim that Austin is
“accus[ing] the District Attorney of racism.” The People made the same claim in the trial
court: “And let’s be very clear. The defense here is calling all of us racist.” The People
do not elaborate or attempt to defend the claim, and I believe that the claim is mistaken.
Austin is bringing a claim under the RJA. Such a claim does not require proof of
“intentional discrimination.” (§ 745, subd. (c)(2).) Moreover, the RJA was expressly
8
intended to provide remedies for harms caused by implicit bias, which is “often
unintentional and unconscious” (Assem. Bill 2542 (2019-2020 Reg. Sess.) § 2, subd. (i)),
and “[t]he Legislature has acknowledged that all persons possess implicit biases” (id.,
subd. (g)). Nothing in the legislative findings or elsewhere in the RJA suggests that the
Legislature was accusing all persons of racism. Austin’s motion for relief under the RJA
is similar. He contends that he has introduced sufficient evidence to make a prima facie
case under that statute. The statute does not require—either for a prima facie case or to
prevail at a subsequent hearing—that Austin allege or prove that the prosecutors are
racist, and nothing in the record suggests that he is attempting to do so.
The trial court erred by concluding that statistical evidence cannot be sufficient to
make a prima facie case under the RJA. Austin’s statistical evidence was sufficient. I
therefore concur in the judgment granting the petition and directing the trial court to
conduct a hearing under subdivision (c) of section 745.
MENETREZ
J.
9
AI Brief
AI-generated · verify before citing
Holding. The court held that the petitioner established a prima facie case under the California Racial Justice Act by presenting both statistical evidence of racial disparity in capital charging and specific evidence of similarly situated nonminority defendants who were not charged with the death penalty. Consequently, the trial court erred in denying the petitioner an evidentiary hearing.
Issues
Whether a defendant must present evidence of similarly situated nonminority defendants to establish a prima facie case under the California Racial Justice Act.
Whether the petitioner met the burden of establishing a prima facie case for an evidentiary hearing under the California Racial Justice Act.
Disposition. granted
Quotations verified verbatim against the opinion
“The plain language of section 745, subdivision (a)(3), requires evidence of similar conduct and similarly situated defendants”
“Petitioner met his burden of establishing a prima facie case under section 745, subdivision (a)(3).”
“As such, the trial court should have ordered an evidentiary hearing”