Young v. Super. Ct.

Filed 5/26/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CLEMON YOUNG, JR.,
Petitioner, A162850
v. (Solano County
THE SUPERIOR COURT OF Super. Ct. No. FCR347170)
SOLANO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.

I. INTRODUCTION
Under the California Racial Justice Act of 2020 (Stats. 2020, ch. 317,
§ 1) (the Racial Justice Act or the Act), “[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,1 § 745, subd. (a).) We are called
upon in this writ proceeding to address as a matter of first impression the
discovery provision of the Racial Justice Act, which allows a defendant,
“[u]pon a showing of good cause,” to obtain evidence from the prosecution
relevant to a potential violation of the Act. (§ 745, subd. (d).)

1 All further undesignated statutory references are to the Penal Code.

1
 Based on evidence presented at his preliminary hearing, Young argued
below that racial profiling in a traffic stop led to his arrest for the offense of
possession of Ecstasy for sale. He also pointed to publicly available statistics
showing that, statewide, blacks are more likely to be searched during the
course of traffic stops than other citizens. On this showing, he brought a
motion under the Racial Justice Act seeking discovery relating to charging
decisions in cases he claims are comparable to his. For the past five years, he
sought the names and case numbers of others who were charged with or
could have been charged with possession of Ecstasy for sale; the same
information for a broad range of related drug offenses; the police reports
relating to the suspects involved and their criminal histories; and the
dispositions in all of these cases. Upon compelled disclosure of this
information, Young wishes to show that the District Attorney “has more
frequently charged Black defendants like Mr. Young, Jr. with possession for
sale” than defendants of other races. (See § 745, subd. (a)(3).)
Proceeding cautiously and noting the lack of available appellate
precedent to guide its application of section 745, subdivision (d), the trial
court denied the motion. The court’s only articulated reason for the denial
was that Young’s good cause showing appeared to rest on nothing more than
his race. Before us, on writ review, the Attorney General reiterates this
rationale, though in slightly different form. He argues that, as a matter of
statutory interpretation, since Young’s race is the only “logical link” between,
on the one hand, the allegation of racial profiling (a charge he claims is
pertinent to whether there was a violation of section 745, subdivision (a)(1)),
and on the other hand, the allegation of racially biased prosecution (a charge
he claims is pertinent to whether there was a violation of section 745,

2
subdivision (a)(3)), good cause for discovery relating to prosecutorial bias is
lacking.
We will disagree, vacate the denial order, and remand with directions.
The trial court’s reason for denying Young’s motion was incorrect as a factual
matter. The grounds for the motion went beyond “simply” Young’s race, and
the Attorney General’s reformulation of that mistaken premise, to the extent
his “logical link” argument has any bearing on good cause, goes to the
breadth and scope of allowable discovery, not to whether discovery should be
allowed at all. Borrowing from the minimal threshold showing that is
required to trigger an obligation to provide so-called Pitchess discovery (Evid.
Code, § 1043, subd. (b); see Pitchess v. Superior Court (1974) 11 Cal.3d 531),
we hold that Young may claim entitlement to discovery under section 745,
subdivision (d) if he makes a plausible case, based on specific facts, that any
of the four enumerated violations of section 745, subdivision (a) could or
might have occurred. (§ 745, subd. (a)(1)–(4).)
But a showing of plausible justification is merely a threshold
consideration. “The trial court, in deciding whether the defendant shall be
permitted to obtain discovery of the requested material, must consider and
balance a number of [other] factors” (City of Alhambra v. Superior Court
(1988) 205 Cal.App.3d 1118, 1134 (Alhambra)), “[s]pecifically . . . (1) whether
the material requested is adequately described, (2) whether the requested
material is reasonably available to the governmental entity from which it is
sought (and not readily available to the defendant from other sources),
(3) whether production of the records containing the requested information
would violate (i) third party confidentiality or privacy rights or (ii) any
protected governmental interest, (4) whether the defendant has acted in a
timely manner, (5) whether the time required to produce the requested

3
information will necessitate an unreasonable delay of defendant’s trial, [and]
(6) whether the production of the records containing the requested
information would place an unreasonable burden on the governmental entity
involved” (ibid., fn. omitted).
Whether Young can satisfy this multifactor test of good cause remains
to be seen. We decline his invitation to reverse outright and issue a writ
directing the entry of an order granting his discovery requests as framed.
Instead, we vacate the order denying discovery and direct the trial court to
give Young’s motion further consideration. While we provide some general
guidance, we leave to the trial court the specific application of the plausible
justification standard we adopt here, taking other pertinent factors into
account. Described broadly, the court’s task will be to engage in a
discretionary weighing of the strength of Young’s factual showing, the
potential probative value of the information he seeks, and the burdens of
gathering the requested “records or information” for disclosure. (§ 745,
subd. (d).) Should the court conclude that discovery is warranted, we can say
no more at this point than that the scope of compelled discovery must be
tailored to demonstrated need.
II. BACKGROUND
A. Young’s Discovery Request
In August 2019, the People filed a felony complaint charging Young
with possession of a controlled substance (Ecstasy) for sale (Health & Saf.
Code, § 11378).
In May 2021, Young filed a motion to “compel disclosure of relevant
data” pursuant to the Racial Justice Act. The motion sought disclosures
relevant to whether the People’s decision to charge him with felony
possession of a controlled substance was based on his race in violation of

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section 745, subdivision (a)(3) of the Racial Justice Act. Specifically, it
requested the following categories of information:
“1. The name and case number of every individual against whom
charges for a violation of Health and Safety Code 11378, 11379, 11377, and
11350 have been filed in the last five years from January 1, 2016 to
March 17, 2021 or the date of receipt of this request, whichever is later.
“2. The police reports that form the basis of all of the charges in all of
those cases.
“3. The disposition if any of all of the cases.
“4. The name and case number of every individual against whom the
district attorney declined to prosecute for any of the above-listed Health and
Safety Code violations.
“5. The name and case number of every sentencing that occurred for a
violation of one of the above-listed Health and Safety Codes, whether or not
joined with other charges, from the period between January 1, 2016 and
March 17, 2017, or the date of receipt of this request, whichever is later.
“6. The criminal history of every defendant for whom the district
attorney provides the above-requested data.”
In order to establish good cause for this information, Young cited
statewide data showing that black drivers are more likely than drivers of
other races to be subject to a police traffic stop and vehicle search. Young
also pointed to the circumstances of the traffic stop leading to his arrest,
which, according to him, had the hallmarks of racial profiling—a pretextual
traffic stop for an infraction, the use of excessive, unprovoked force, and a
search of his entire car.
Centering his discovery motion on alleged racial profiling in connection
with his arrest, Young argued that his subsequent prosecution was likely

5
tainted by racial discrimination as well. The Solano County District Attorney
opposed the motion, arguing there was no showing of good cause for the
requested disclosures. The district attorney claimed that the treatment of
black motorists in general by law enforcement has no bearing on the charging
decision in Young’s case. According to the district attorney, Young bore the
burden of showing that prosecutorial discretion was exercised with
intentional and invidious discrimination in his particular case, and no such
showing was made.
The trial court denied Young’s motion. The court explained it was “not
comfortable with making this requirement in this situation because there’s so
little guidance, and it’s unclear whether or not there needs to be any other
information other than simply the race of your client to require it. [¶] I’m
doing that in part because maybe we’ll get some, maybe this case will lead to
us getting some, if you want to appeal my decision in some way. I’m happy to
get further guidance because it is not clear to me what simply indicates,
where you have the race of the defendants being the only reason we get into a
consideration request under Penal Code Section 745.”
Young filed a petition for writ of prohibition asking us to vacate the
order denying discovery and restrain the court from proceeding further until
it enters a new and different order granting his discovery motion.2 We

2 A writ of prohibition issues to restrain further action by a tribunal
that is acting in excess of its jurisdiction. (Code Civ. Proc., § 1102.) A writ of
mandate issues to correct an abuse of discretion or to compel the performance
of a ministerial duty. (Code Civ. Proc., § 1085.) The two forms of writ relief
are often confused. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and
Writs (The Rutter Group 2021) ¶ 15:30.) We will construe Young’s writ as
one seeking mandate relief. (See Rio Del Mar Country Club v. Superior Court
(1948) 84 Cal.App.2d 214, 217 [“if mandate is the proper remedy the
petitioner will not be denied relief because of the erroneous choice of
remedies”].)

6
received preliminary briefing and issued an order to show cause. The
Attorney General filed a formal return. Amici curiae briefs were submitted
in support of Young by the Office of the State Public Defender, by
Assemblymember Ash Kalra (who sponsored the Racial Justice Act), and
jointly by the American Civil Liberties Union of Northern California and the
Equal Justice Society.
B. The Racial Justice Act
Effective January 1, 2021, the Racial Justice Act, which is codified in a
scheme of interrelated statutes in the Penal Code (§§ 745, 1473, subd. (f ),
1473.7, subd.(a)(3)), states 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.” (§ 745, subd. (a).) The command is simple, but the
implementation is somewhat complex.
The Act sets forth four categories of conduct, any of which, if proved, is
enough to “establish” a violation of section 745, subdivision (a). Two of these
categories of conduct are most pertinent here. They occur when “[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” (§ 745,
subd. (a)(1)), or when “[t]he 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

7
convictions were sought or obtained” (§ 745, subd. (a)(3)).3 The other two
categories of conduct, not implicated in this case but worth mentioning to
illustrate the breadth of the Act, concern conduct at trial or in sentencing.4
Procedurally, the Act authorizes defendants to seek relief for a violation
of section 745, subdivision (a), prior to imposition of judgment, by “motion . . .
in the trial court.” (§ 745, subd. (c).) If such a motion is brought, the court
shall, upon a showing of a prima facie violation of section 745, subdivision (a),
hold a hearing at which “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 appoint an
independent expert; and the defendant shall bear the burden of proof of a
violation of section 745, subdivision (a) by a preponderance of the evidence.
(§ 745, subd. (c).) At the conclusion of the hearing, “the court shall make

3 Under section 745, subdivision (h)(1), “ ‘More frequently sought or
obtained’ or ‘more frequently imposed’ means that statistical evidence or
aggregate data demonstrate a significant difference in seeking or obtaining
convictions or in imposing sentences comparing individuals who have
committed similar offenses and are similarly situated, and the prosecution
cannot establish race-neutral reasons for the disparity.”
4 See section 745, subdivision (a)(2) (“During the defendant’s trial, in
court and during the proceedings, the judge, an attorney in the case, a law
enforcement officer involved in the case, an expert witness, or juror, used
racially discriminatory language about the defendant’s race, ethnicity, or
national origin, or otherwise exhibited bias or animus towards the defendant
because of the defendant’s race, ethnicity, or national origin, whether or not
purposeful”); section 745, subdivision (a)(4) (“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.”).

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findings on the record.” (Ibid.) And if a violation of section 745,
subdivision (a) is proved, “the court shall impose a remedy specific to the
violation found from the following list” (§ 745, subd. (e)): declaration of a
mistrial, discharge of the jury and empanelment of a new jury; or dismissal of
enhancements, special circumstance allegations, or other special allegations;
or reduction of one or more charges. (§ 745, subd. (e)(1)(A)–(C).) Claimed
violations of section 745, subdivision (a) may also be raised postjudgment, by
petition for habeas corpus under section 1473, subdivision (f ) or by motion to
vacate an allegedly invalid conviction or sentence under section 1473.7. The
Act authorizes a set of remedies specific to postjudgment requests for relief.
(§ 745, subd. (e)(2)(A)–(B).)

Specifically at issue here is the discovery provision of the Racial Justice
Act, section 745, subdivision (d), which provides: “A defendant may file a
motion requesting disclosure to the defense of all evidence relevant to a
potential violation of subdivision (a) in the possession or control of the state.
A motion filed under this section shall describe the type of records or
information the defendant seeks.” “Upon a showing of good cause, the court
shall order the records to be released. Upon a showing of good cause, and if
the records are not privileged, the court may permit the prosecution to redact
information prior to disclosure.” (Ibid.)
C. Legislative Findings and Legal Landscape Prior to the Act
1. Legislative Rejection of Prevailing Law
Accompanying the Racial Justice Act is a set of uncodified findings that
comment extensively on the state of the law at the time the Act was passed.
Without endorsing the accuracy of these findings to the extent they set forth
and are premised on a particular reading of the law, we summarize them

9
here, for they provide an illuminating guide to the legislative objectives in
passing the Act.
The findings explain that “[e]ven though racial bias is widely
acknowledged as intolerable in our criminal justice system, it nevertheless
persists because courts generally only address racial bias in its most extreme
and blatant forms. . . . Even when racism clearly infects a criminal
proceeding, under current legal precedent, proof of purposeful discrimination
is often required, but nearly impossible to establish.” (Assem. Bill No. 2542
(2019–2020 Reg. Sess.) § 2, subd. (c) (Assembly Bill 2542).) “Implicit bias,
although often unintentional and unconscious, may inject racism and
unfairness into proceedings similar to intentional bias. The intent of the
Legislature is not to punish this type of bias, but rather to remedy the harm
to the defendant’s case and to the integrity of the judicial system.” (Assem.
Bill 2542, § 2, subd. (i).)
Even when presented with direct evidence of racial animus, the
Legislature finds, courts sometimes do not recognize conduct as racially
discriminatory despite tell-tale signs that it rests on stereotypical or
derogatory thinking. (Assem. Bill 2542 (2019–2020 Reg. Sess.) § 2, subd. (d).)
Citing various examples drawn from case law to illustrate what it perceives
as judicial reticence in dealing with claimed race discrimination (Assem. Bill
2542, § 2, subds. (d )–(f )),5 the Legislature concludes that “[c]urrent law, as

5Most of these examples are from federal cases, but some California
cases are cited as well. The Legislature finds that (1) “Existing precedent
countenances racially biased testimony, including expert testimony, and
arguments in criminal trials” (citing U.S. v. Shah (9th Cir. 2019),
768 Fed.Appx. 637, 640); (2) “Existing precedent has provided no recourse for
a defendant whose own attorney harbors racial animus towards the
defendant’s racial group, or toward the defendant, even where the attorney
routinely used racist language and ‘harbor[ed] deep and utter contempt’ for

10
interpreted by the courts, stands in sharp contrast” to the Legislature’s
strong commitment to root out discrimination in the criminal justice system
and runs contrary to the Legislature’s declared acknowledgement that “all
persons possess implicit biases . . . , that these biases impact the criminal
justice system . . . , and that negative implicit biases tend to disfavor people
of color.” (Assem. Bill 2542, § 2, subd. (g).)
Stating its intent to depart from the discriminatory purpose paradigm
in federal equal protection law (e.g., McCleskey v. Kemp (1987) 481 U.S. 279,
292 (McCleskey) [statistical showing that race likely influenced imposition of
death penalty held insufficient to warrant reversal because “to prevail under
the Equal Protection Clause, [the defendant] must prove that the
decisionmakers in his case acted with discriminatory purpose”]; Batson v.
Kentucky (1986) 476 U.S. 79, 93 [“the ‘invidious quality’ of governmental
action claimed to be racially discriminatory ‘must ultimately be traced to a
racially discriminatory purpose’ ”]; see Washington v. Davis (1976) 426 U.S.
229, 240), the Legislature declares an objective “to reject the conclusion that
racial disparities within our criminal justice system are inevitable, and to
actively work to eradicate them.” (Assem. Bill 2542 (2019–2020 Reg. Sess.)
§ 2, subd. (i).)

the defendant’s racial group” (citing Mayfield v. Woodford (9th Cir. 2001)
270 F.3d 915, 924–925 (en banc)); (3) “Existing precedent holds that appellate
courts must defer to the rulings of judges who make racially biased comments
during jury selection” (citing People v. Williams (2013) 56 Cal.4th 630, 652);
and (4) “Existing precedent tolerates the use of racially incendiary or racially
coded language, images, and racial stereotypes in criminal trials” (citing
Duncan v. Ornoski (9th Cir. 2008) 286 Fed.Appx. 361, 363 and People v.
Powell (2018) 6 Cal.5th 136, 182–183). (Assem. Bill 2542 (2019–2020 Reg.
Sess.) § 2, subds. (d)–(e).)

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 On these foundational findings, the Legislature states an intent to
purge racial discrimination from our criminal justice system by taking
proactive steps designed to “ensure that race plays no role at all in seeking or
obtaining convictions or in sentencing.” (Assem. Bill 2542 (2019–2020 Reg.
Sess.) § 2, subd. (i).) Toward that end, the Racial Justice Act provides a set of
remedies designed to “eliminate racially discriminatory practices in the
criminal justice system.” (Assem. Bill 2542, § 2, subd. (j).) What the
Legislature has to say about the specific feature of the Act that is at issue
here—the discovery provision—is, of course, particularly notable. The
Legislature explains that it wishes to “ensure” that defendants claiming a
violation of section 745, subdivision (a), have “access to all relevant evidence,
including statistical evidence, regarding potential discrimination in seeking
or obtaining convictions or imposing sentences.” (Assem. Bill 2542, § 2,
subd. (j).)
2. McCleskey v. Kemp
The legislative findings cite McCleskey, supra, 481 U.S. 279, as the
prime example that “[e]xisting [judicial] precedent . . . accepts racial
disparities in our criminal justice system as inevitable.” (Assem. Bill 2542
(2019–2020 Reg. Sess.) § 2, subd. (f ).) Because the findings highlight
McCleskey as an emblem of perceived judicial indifference to racial bias, a
review of that case will provide some insight into what, exactly, the
Legislature rejected in enacting this new approach to rooting out racial
discrimination in the criminal justice system.
In McCleskey, a death penalty case, habeas petitioner Warren
McCleskey challenged his conviction and sentence on Eighth and Fourteenth
Amendment grounds, arguing that statistical evidence showed defendants in
Georgia who killed white victims were 4.3 times more likely to receive the
death penalty than defendants charged with killing blacks. (McCleskey,

12
supra, 481 U.S. at p. 287.) He relied on the findings of a statistics expert,
Professor David Baldus, who examined 2,000 murder cases throughout the
state of Georgia and performed a multiple regression analysis that excluded
230 nonracial explanations for the discriminatory pattern his study
confirmed. (Id. at pp. 286–288.) The Baldus study showed that prosecutors
were most likely to seek the death penalty in a case involving a white victim.
Specifically, Georgia prosecutors requested the death penalty in 70 percent of
cases involving black defendants and white victims; 32 percent of cases
involving white defendants and white victims; 15 percent of cases involving
black defendants and black victims; and 19 percent of cases involving white
defendants and black victims. (Id. at p. 287.) And racial factors were most
likely to play a role in capital sentencing in cases that presented the greatest
degree of jury discretion. (Id. at p. 287, fn. 5.)
The high court accepted the validity of Baldus’s findings (McCleskey,
supra, 481 U.S. at p. 291, fn. 7), but characterized them as evidencing
nothing more than a “discrepancy that appears to correlate with race” (id. at
p. 312). Pointing to the absence of evidence that the State of Georgia enacted
its death penalty statute with a racially discriminatory purpose, the court, by
a 5–4 vote, declined to find a constitutional defect. (Id. at pp. 292–296, 298–
299.) The court observed that discretion—as exercised by prosecutors as well
as by juries—can work in a defendant’s favor as well as against him (id. at
p. 312 [“ ‘the power to be lenient [also] is the power to discriminate’ ”]), and
explained that the jury is a criminal defendant’s fundamental bulwark
against “ ‘race or color prejudice’ ” (id. at p. 310). The court also pointed to
Batson v. Kentucky, supra, 476 U.S. 79—notably, another focus of our

13
Legislature’s criticism in passing the Racial Justice Act 6—to show its own
“ ‘unceasing efforts’ to eradicate racial prejudice from our criminal justice
system.” (McCleskey, supra, 481 U.S. at p. 309.) Taking Warren McCleskey’s
statistical approach to proving racial discrimination to the full measure of its
logic, the court explained, “other claims could apply with equally logical force
to statistical disparities that correlate with the race or sex of other actors in
the criminal justice system.” (Id. at p. 317.) These kinds of statistics-based
arguments were “best presented to the legislative bodies,” the court decided.
(Id. at p. 319.)
Justice Brennan, in dissent, opined that “[t]he statistical evidence in
this case . . . relentlessly documents the risk that McCleskey’s sentence was
influenced by racial considerations.” (McCleskey, supra, 481 U.S. at p. 328
(dis. opn.).) As Justice Brennan saw it, “This evidence shows that there is a
better than even chance in Georgia that race will influence the decision to
impose the death penalty: a majority of defendants in white-victim crimes
would not have been sentenced to die if their victims had been black.” (Ibid.)
Given the history of officially sanctioned racial bias in Georgia’s criminal
justice system, Justice Brennan argued that McCleskey’s statistics could not
be ignored. (Id. at pp. 332–334 (dis. opn.).) What the majority characterized
as “ ‘unceasing efforts’ ” to “eradicate” racial discrimination in the criminal
justice system (McCleskey, at p. 309), Justice Brennan saw as “honorable

6 See Assembly Bill 2542 (2019–2020 Reg. Sess.) section 2,
subdivision (c) citing various judicial opinions criticizing the effectiveness of
Batson in combatting racially discriminatory use of peremptory challenges in
jury selection, including People v. Bryant (2019) 40 Cal.App.5th 525, 544
(conc. opn. of Humes, P. J.) (“there are good reasons to question whether” the
anti-discrimination protections of Batson/Wheeler in jury selection are being
realized because proof of “purposeful discrimination sets a high standard that
is difficult to prove in any context”).

14
steps” but merely evidence of the persistence of the underlying problem (id.
at pp. 333, 344 (dis. opn.)). In a rejoinder quoted by the Legislature in its
findings accompanying the Racial Justice Act, Justice Brennan observed that
the majority’s “fear . . . McCleskey’s claim would open the door to widespread
challenges to all aspects of criminal sentencing” suggested a “fear of too much
justice.” (Id. at p. 339 (dis. opn.).)7
There is little doubt which side of the McCleskey debate our Legislature
has aligned California with by statute. More than three decades after
McCleskey was decided, the Legislature took up the high court’s invitation to
fashion a response to the intractable problem that Justice Brennan
identified. In the Racial Justice Act, it enacted a statutory scheme applicable
in all criminal and juvenile delinquency cases that not only eliminates any
requirement to show discriminatory purpose (§ 745, subds. (a)(2), (f )) and

7 The Legislature’s critique of McCleskey and embrace of Justice
Brennan’s dissent is not something new. The McCleskey decision and its
rationale continue to be debated many years after it was handed down, with
many critics weighing in on the side of the dissent. (See Kennedy, McCleskey
v. Kemp: Race, Capital Punishment, and the Supreme Court (1988) 101 Harv.
L.Rev. 1388, 1388–1389 [“The Court’s decision in McCleskey v. Kemp was
immediately beset by sharp criticism and, in some instances, outright
denunciation. Anthony Lewis charged that the Court had ‘effectively
condoned the expression of racism in a profound aspect of our law.’ Hugo
Bedau likened the decision to such notorious holdings as Dred Scott v.
Sandford, Plessy v. Ferguson, and Korematsu v. United States. The Harvard
Law Review described the McCleskey decision as ‘logically unsound, morally
reprehensible, and legally unsupportable.’ ”]; see also Sundby, The Loss of
Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure
(2012) 10 Ohio St. J.Crim.L. 5, 29.) Even the author of the court’s opinion,
Justice Powell, had regrets about it. After his retirement from the high
court, Justice Powell was asked by his biographer if there was one case in
which he would change his vote if he had the opportunity. His reply: “Yes,
McCleskey v. Kemp.” (Jefferies, Jr., Justice Lewis F. Powell, Jr. (1994)
p. 451.)

15
permits violations of the Act to be established based on statistics (§ 745,
subds. (c)(1), (h)(1)), but also appears to be a direct response to the result
reached in McCleskey, since it includes among its panoply of new remedies
the provision that “[w]hen the court finds there has been a violation of
[section 745] subdivision (a), the defendant shall not be eligible for the death
penalty.” (§ 745, subd. (e)(3).)
3. United States v. Armstrong
While any number of statutory interpretation questions may arise in
the future as to the reach and application of the Racial Justice Act, in this
case we address only a question of discovery procedure: What showing must
a defendant make in order to be entitled to discovery upon an allegation of
racially discriminatory charging? A similar question no doubt arose early in
Warren McCleskey’s habeas proceedings, given the presence in the extensive
record assembled there of information that could only have been obtained
from prosecutors through compelled discovery. (See, e.g., McCleskey, supra,
481 U.S. at p. 360, fn. 13 (dis. opn. of Blackman, J.) [“As a result of
McCleskey’s discovery efforts, the record . . . contains relevant testimonial
evidence by two state officials.”].)
It turns out that, even before McCleskey was decided, there were cases
addressing this very question in federal law.8 Synthesizing the threshold
standard defendants must meet in order to be entitled to discovery in cases
alleging selective prosecution, United States v. Armstrong (1996) 517 U.S.

8See United States v. Greenwood (4th Cir. 1986) 796 F.2d 49, 52–53;
United States v. Mitchell (7th Cir. 1985) 778 F.2d 1271, 1277; United States v.
Berrios (2d Cir. 1974) 501 F.2d 1207, 1211 (Berrios); see also United States v.
Parham (8th Cir. 1994) 16 F.3d 844, 846–847; United States v. Fares (2d Cir.
1992) 978 F.2d 52, 59–60; United States v. Peete (6th Cir. 1990) 919 F.2d
1168, 1176; C.E. Carlson, Inc. v. Securities and Exchange Commission
(10th Cir. 1988) 859 F.2d 1429, 1437–1438.

16
456 (Armstrong) was the leading case at the time the Racial Justice Act was
passed and remains the leading case today. Because the discovery question
Armstrong addresses is identical to the question we address in this case,
albeit where discrimination is claimed under the equal protection clause,
Armstrong’s holding and its reasoning establish a specific point of
departure—just as McCleskey is a point of departure more generally—when
we consider what the Legislature likely intended when it enacted the “good
cause” standard in section 745, subdivision (d).
In Armstrong, five black defendants were federally charged with
conspiracy to distribute crack cocaine, exposing them to mandatory minimum
sentences far higher than those applicable for the same offense prosecuted in
state court. (Armstrong, supra, 517 U.S. at pp. 458–460.) Arguing that black
defendants were being targeted for federal prosecution, they presented a
study showing that, in a single year, of all cases involving crack offenses
closed by the Federal Public Defender’s Office in the Central District of
California where they were charged, 24 out of 24 cases involved black
defendants. (Id. at p. 459.) They also presented a defense lawyer’s affidavit
stating that, in his experience in that district, crack cases against non-blacks
were regularly prosecuted in state court, and a drug treatment counselor’s
affidavit that the population of crack users he treated was composed of just
as many whites as minorities. (Id. at p. 460.) The district court granted a
discovery order, and a divided Ninth Circuit panel affirmed. (U.S. v.
Armstrong (9th Cir. 1995) (en banc) 48 F.3d 1508, 1510, revd. (1996) 517 U.S.
456.)
Reversing, the high court held that no discovery was warranted.
(Armstrong, supra, 517 U.S. at p. 458.) It first addressed Federal Rule of
Civil Procedure 16, the rule governing discovery generally in federal criminal

17
cases. Because an allegation of selective prosecution does not affirmatively
defend against the Government’s case-in-chief, the court held a request for
discovery in support of such a claim is not “material” to a defense under
former Federal Rule of Civil Procedure 16(a)(1)(C). (Armstrong, at pp. 461–
463.) In the absence of authorization for the requested discovery by rule, the
court assumed (without directly deciding) that where defendants argue
invidious discrimination based on a theory of selective prosecution, courts
have inherent authority to order discovery under a judge-made standard
that, prior to Armstrong, was widely recognized in federal circuit level case
law. (Id. at pp. 463, 469.) Although the circuit courts and the parties in
Armstrong used a variety of phrases to describe this standard (“ ‘colorable
basis,’ ” “ ‘substantial threshold showing,’ ” “ ‘substantial and concrete
basis,’ ” or “ ‘reasonable likelihood’ ”) (id. at p. 468), in the high court’s view
these “labels . . .conceal the degree of consensus about the evidence necessary
to meet it.” (Ibid.) That consensus, the court concluded, was best captured in
the formulation delineated in Berrios, supra, 501 F.2d 1207—there must be
“ ‘some evidence tending to show the existence of the essential elements of
the defense,’ discriminatory effect and discriminatory intent.” (Armstrong, at
p. 468, quoting Berrios, at p. 1211.)
But the Armstrong court laid down an important caveat. Where an
application for discovery is made under Berrios, the court held it must be
subjected to rigorous evidentiary scrutiny, and may be denied outright,
because of the presumption of regularity accorded to prosecutorial
decisionmaking. “Our cases delineating the necessary elements to prove a
claim of selective prosecution have taken great pains to explain that the
standard is a demanding one,” the court explained. (Armstrong, supra,
517 U.S. at p. 463.) “These cases afford a ‘background presumption[]’ . . . that

18
the showing necessary to obtain discovery should itself be a significant
barrier to the litigation of insubstantial claims.” (Id. at pp. 463–464.)
Because “[d]iscovery . . . imposes many of the costs present when the
Government must respond to a prima facie case of selective prosecution” (id.
at p. 468), and because discovery “will divert prosecutors’ resources and may
disclose the Government’s prosecutorial strategy,” “[t]he justifications for a
rigorous standard for the elements of a selective-prosecution claim . . .
require a correspondingly rigorous standard for discovery in aid of such a
claim.” (Ibid.) On the record presented in Armstrong, the proof fell short of
this standard. (Id. at p. 470.) All the defendants presented to prove that
“similarly situated” non-black defendants were not prosecuted in federal
court, the court found, was hearsay and anecdotal evidence. (Ibid.) In
absence of competent proof of one of the two elements of a selective
prosecution claim—the first prong, discriminatory effect, which requires a
showing of disparate treatment vis-à-vis individuals of another race—there
was no right to discovery. (Ibid.)
Race-based selective prosecution (Griffin v. Municipal Court (1977)
20 Cal.3d 300) is the equal protection analogue to a statutory theory of
racially disparate treatment under section 745, subdivision (a)(3). Prior to
Armstrong, the threshold showing for discovery in selective prosecution cases
in California—at least until 1990, when the Legislature codified the rules of
discovery in criminal cases, as we explain in more detail below—was
governed by Griffin and Murgia v. Municipal Court (1975) 15 Cal.3d 286.
Griffin and Murgia, taken together, enunciated a “plausible justification”
standard that served as the California counterpart to the federal Berrios line
of cases. (See People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177,

19
1188.)9 While the requisite showing to secure discovery under Griffin and
Murgia was less stringent than ultimately came to be the case under
Armstrong, those cases, too, like Armstrong, required sufficient proof to make
out a prima facie case of selective prosecution. (Griffin, at p. 302; Murgia, at
p. 301.) And like Armstrong, Griffin and Murgia are founded on the
discriminatory purpose paradigm in equal protection jurisprudence. (Griffin,
at p. 306; Murgia, at p. 300.) When discovery in criminal cases was codified
in 1990, Armstrong superseded Griffin and Murgia in cases where defendants
sought nonstatutory discovery to support a theory of selective prosecution in
violation of the equal protection clause. (Baez, at pp. 1187–1188 & fn. 9.)
As we explain below, we conclude that, in section 745, subdivision (d),
the good cause standard set by the Legislature is significantly lower than the
rigorous standard announced in Armstrong, and is in some respects lower
than the standard that preceded it under Griffin and Murgia.
III. DISCUSSION
A. General Principles Guiding Our Analysis
“Writ review is appropriate in discovery matters where, as here, it is
necessary to address ‘questions of first impression that are of general
importance to the trial courts and to the [legal] profession, and where general

9 The “plausible justification” standard was first enunciated in Ballard
v. Superior Court (1966) 64 Cal.2d 159, which held: “A defendant’s motion for
discovery must . . . describe the requested information with at least some
degree of specificity and must be sustained by plausible justification. [¶] As
Chief Justice Traynor has written ‘A showing . . . that the defendant cannot
readily obtain the information through his own efforts will ordinarily entitle
him to pretrial knowledge of any unprivileged evidence, or information that
might lead to the discovery of evidence, if it appears reasonable that such
knowledge will assist him in preparing his defense . . . .’ ” (Id. at p. 167,
quoting Traynor, Ground Lost and Found in Criminal Discovery (1964)
39 N.Y.U. L.Rev. 228, 244, italics omitted.)

20
guidelines can be laid down for future cases.’ [Citation.] The standard of
review for a discovery order is abuse of discretion, because management of
discovery lies within the sound discretion of the trial court.” (People v.
Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 987.) We review the
factual underpinnings of a discretionary determination for substantial
evidence (ibid.), but where such a determination rests on “incorrect legal
premises,” our review is de novo (People v. Landers (2019) 31 Cal.App.5th
288, 304; see Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 773 [discretion “must be exercised within the confines
of the applicable legal principles”]).
To our knowledge, we are the first appellate court to address the
discovery provision of the Racial Justice Act, including its good cause
requirement. “ ‘ “ ‘As in any case involving statutory interpretation, our
fundamental task . . . is to determine the Legislature’s intent so as to
effectuate the law’s purpose. [Citation.] We begin by examining the statute’s
words, giving them a plain and commonsense meaning.’ ” ’ [Citation.] ‘[W]e
consider the language of the entire scheme and related statutes, harmonizing
the terms when possible.’ ” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
“If the language of a statutory provision 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.) Uncodified legislative findings may also be
consulted. While legislative findings “ ‘ “ ‘do not confer power, determine
rights, or enlarge the scope’ ” ’ ” of the Act itself as codified, they “ ‘ “ ‘properly
may be utilized as an aid in construing’ [a statute].” ’ ” (People v. Flores
(2020) 44 Cal.App.5th 985, 995.)

21
 Because uncodified findings of legislative intent are voted upon by the
entire legislative body, enrolled and signed by the Governor, they may be
entitled to somewhat greater weight than traditional legislative history
materials (e.g., draft language of bills, committee reports, bill analyses). (See
California Housing Financial Agency v. Elliott (1976) 17 Cal.3d 575, 583
[legislative findings, while not binding on the courts, “are given great weight
and will be upheld unless they are found to be unreasonable and arbitrary”].)
Findings of this type are sometimes so general that they provide little value
in resolving a particular issue of statutory construction, but not always.
Given the specificity of the findings accompanying the Racial Justice Act, we
give the detailed statement of intent we have here considerable weight.
We begin our analysis with the recognition that discovery in criminal
cases is governed by a statutory scheme that, with certain specified
exceptions, is designed to be reciprocal and exclusive. (See §§ 1054, subd. (e)
[“no discovery shall occur in criminal cases except as provided by this
chapter, other express statutory provisions, or as mandated by the
Constitution of the United States”], 1054.5, subd. (a) [“[n]o order requiring
discovery shall be made in criminal cases except as provided in this
chapter”].) This statutory discovery scheme was added to the Penal Code by
Proposition 115 in 1990 and may be found at Penal Code, part 2, title 6,
chapter 10, section 1054 et seq. (Chapter 10). Because section 745,
subdivision (d) constitutes an “express statutory provision” authorizing
defense-side discovery, it is now one of the exceptions to Chapter 10. Most
discovery under Chapter 10 is self-executing, subject to curtailment upon a
showing of good cause. (Pen. Code, § 1054.7.) Section 745, subdivision (d)
flips that model and authorizes compelled disclosures upon a motion
supported by a showing of good cause.

22
 The legislative history shows that the involvement of the court as a
gatekeeper under section 745, subdivision (d), is a significant aspect of the
procedural scheme. In the original draft language of Assembly Bill 2542, the
bill that ultimately became section 745, “discovery” could be originated in the
mode of civil discovery, simply by “written request.” (Assem. Bill 2542 (2019–
2020 Reg. Sess.) § 3.5, as amended in the Senate, July 1, 2020.) By later
amendment, however, the term “discovery” was replaced with the term
“disclosure” (Assem. Bill 2542, as amended in the Senate, Aug. 25, 2020)10
under a regime where “disclosure” must be sought by motion (Assem.
Bill 2542, as amended in the Senate, Aug. 20, 2020). Section 745,
subdivision (d) is somewhat ambiguous as to exactly what form of disclosure
may be compelled. The statutory text speaks variously of disclosure of
“evidence,” requests for “records or information,” and compelled production of
“the records” requested. (§ 745, subd. (d).) Consistent with the stated
Legislative purpose, we interpret this language to authorize whatever form of
disclosure will give the defense access to “all evidence” needed to prove an
alleged violation of section 745, subdivision (a), where the requisites of “good
cause” are met. (§ 745, subd. (d).) In a given situation, that may call for an
order to produce “records,” a written summary of “information,” or even
presentation of testimony from an authorized representative of the
prosecution who can provide “information.” (Ibid.)

10Although “disclosure” is generally more consistent with the
terminology pertaining to information exchange in criminal cases under
Chapter 10 (see §§ 1054.1–1054.3), the terms “disclosure” and “discovery” are
used interchangeably in the criminal setting (see, e.g., Evid. Code, § 1043,
subd. (a); Pen. Code., § 832.5 [Pitchess statute governing requests for
“discovery or disclosure . . . of peace or custodial officer personnel records”])
and we understand them to be equivalent in the context of section 745,
subdivision (d) motions.

23
 B. The Analogy to Pitchess Discovery
But what does “good cause” mean here? “It has long been recognized
that ‘[t]he term “good cause” is not susceptible of precise definition.’ ” (In re
Lucas (2012) 53 Cal.4th 839, 849.) This chameleon-like phrase takes on
different meanings in different contexts. The parties and amici agree that
the closest analogy is the good cause standard governing disclosure of law
enforcement personnel records—Pitchess discovery.11 Similar to the
disclosure regime under the Racial Justice Act, a defendant seeking Pitchess
discovery must file a motion supported by affidavits showing “good cause” for
it. (Evid. Code, § 1043, subd. (b).) “Good cause” for Pitchess purposes exists
when a defendant shows both “ ‘materiality’ to the subject matter of the
pending litigation and a ‘reasonable belief ’ that the agency has the type of
information sought.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d
74, 84.) Pitchess “good cause” is a “relatively relaxed standard[]” intended to
“insure the production for inspection of all potentially relevant documents.”
(Ibid.)
Included in the Pitchess “good cause” calculus is the requirement for a
defendant to establish a “plausible factual foundation” for officer misconduct.
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025 (Warrick).) To
satisfy this requirement, “a defendant need only demonstrate that the
scenario of alleged officer misconduct could or might have occurred.” (Id. at
p. 1016.) Critically, a defendant need not show that the alleged misconduct
was “probable” or “apparently credible.” (Id. at pp. 1025–1026.) “To require a
criminal defendant to present a credible or believable factual account of, or a
motive for, police misconduct suggests that the trial court’s task in assessing
a Pitchess motion is to weigh or assess the evidence. It is not. A trial court

11 Pitchess v. Superior Court, supra, 11 Cal.3d 531.

24
hearing a Pitchess motion normally has before it only those documents
submitted by the parties, plus whatever factual representations counsel may
make in arguing the motion. The trial court does not determine whether a
defendant’s version of events, with or without corroborating collateral
evidence, is persuasive—a task that in many cases would be tantamount to
determining whether the defendant is probably innocent or probably guilty.”
(Id. at p. 1026, italics omitted.)
We agree that a discovery-triggering standard similar to the standard
applicable to Pitchess discovery motions under Evidence Code section 1043,
subdivision (b), applies to section 745, subdivision (d) motions under the
Racial Justice Act. These two discovery provisions share a similar purpose,
as each is designed to provide a defendant access to information that is
uniquely in the possession of government officials. We can presume that the
Legislature was aware how courts have interpreted the meaning of good
cause for Pitchess discovery and intended a similar standard to apply under
the Racial Justice Act. Thus, we conclude that in order to establish good
cause for discovery under the Racial Justice Act, a defendant is required only
to advance a plausible factual foundation, based on specific facts, that a
violation of the Racial Justice Act “could or might have occurred” in his case.
(Warrick, supra, 35 Cal.4th at p. 1016.) This minimal standard, in effect,
restores the discovery regime that was in place under Murgia and Griffin
prior to 1990, but without any need to make a prima facie showing of
violation of the equal protection clause.
While the plausible justification standard we announce here is similar
to the threshold showing that must be made for Pitchess discovery, it is in
some respects even more relaxed than the “relatively relaxed standard[]”
under Evidence Code section 1043, subdivision (b). (City of Santa Cruz v.

25
Municipal Court, supra, 49 Cal.3d at p. 84.) Good cause for Pitchess purposes
must be supported by an affidavit setting forth a reasonable belief that the
requested discovery is material to the subject matter of the case. The
Pitchess materiality requirement also places a burden on the movant to
“propose a defense or defenses to the pending charges” and a “logical link
between the defense proposed and the pending charge.” (Warrick, supra,
35 Cal.4th at pp. 1024, 1021.) There is no comparable affidavit requirement
for a discovery motion under section 745, subdivision (d). And there is no
materiality requirement, at least not in the sense that the defendant must
show a “logical link” between some defense and a pending charge.12
The Racial Justice Act counterpart to Pitchess materiality is
“relevan[ce] to a potential violation of section 745, subdivision (a).” (§745,
subd. (d).) Since a section 745, subdivision (a) violation may be proved up in
several different ways based on a variety of direct or circumstantial evidence
of discrimination under subdivision (a)(1)–(4), the threshold showing for good
cause must be commensurately broad and flexible. The limiting factor is
“relevance” in the discovery sense—that is, each request for disclosure must
be reasonably calculated to lead to discovery of admissible evidence probative

12 A Pitchess affidavit must show, in addition, that the affiant has a
reasonable belief the requested discovery is in the possession and control of
the state. (Warrick, supra, 35 Cal.4th at p. 1027.) No such showing must be
made under section 745, subdivision (d), because the scope of discoverability
is expressly limited to documents in the “possession or control of the state.”
(§ 745, subd. (d).) The discovery concept of constructive possession has a
well-understood meaning in the context of criminal discovery (i.e., the right to
possession, not merely actual possession). For example, “[a] prosecutor’s duty
. . . to disclose material exculpatory evidence extends to evidence the
prosecutor—or the prosecution team—knowingly possesses or has the right to
possess.” (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305,
1314–1315, italics added; accord, Barnett v. Superior Court (2010) 50 Cal.4th
890, 902–903; People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1475.)

26
of a section 745, subdivision (a) violation. This subject matter limitation on
the scope of discoverable material creates an outer boundary that, if crossed,
may justify an order narrowing or otherwise limiting the obligation to
respond. And as always in the context of discovery, the trial court has ample
discretion to manage where the discovery-relevance boundary lies.
Our interpretation is harmonious not just with the text of section 745,
but its structure as well, given the escalating burdens of proof that are
evident within the statutory scheme. To claim entitlement to discovery, only
plausible justification is required, at least as a threshold matter. Then
section 745, subdivision (c) sets out the procedures for adjudicating motions
brought under the Racial Justice Act. Section 745, subdivision (c) provides
that the court “shall hold a hearing” if the defendant makes “a prima facie
showing of a violation” of the Racial Justice Act. The statute defines “ ‘prima
facie showing’ ” to mean that “the defendant produces facts that, if true,
establish that there is a substantial likelihood that a violation of
subdivision (a) occurred.” (§ 745, subd. (h)(2).) The statute states that a
“ ‘substantial likelihood’ requires more than a mere possibility, but less than
a standard of more likely than not.” (Ibid.) Finally, at the last procedural
step set forth in the statutory scheme, the hearing stage where the defendant
may attempt to prove a violation, the burden increases to proof by a
preponderance of the evidence (id., subd. (c)(2)), which is a more demanding
standard than either the requirement of plausible justification or the
requirement of a prima facie case. It stands to reason that the plausible
justification standard, the least onerous of all three, should not be difficult to
meet.

27
 C. The Trial Court’s Mistaken View That Young Relied Solely
on His Race
Even if we read section 745, subdivision (d) to set a minimal threshold
for good cause, the Attorney General argues, “the discovery of historical
charging of drug offenses in Solano County required some showing of
charging disparity that would establish a logical link between the requested
discovery and the alleged violation of section 745, subdivision (a)(3).” On this
record, the Attorney General contends, Young’s “only ‘logical link’ to an
alleged charging disparity was his race.” That was the trial court’s rationale
as well, and if the premise were factually correct—if Young indeed argued
nothing more than that he is a black person who was charged with felony
possession of Ecstasy for sale—the court would have been right to deny his
discovery motion. But because his motion was based on considerably more
than that, the court’s ruling is unsupported by the record. Young argued he
established good cause for discovery because (1) he is black, (2) studies in
California have shown black drivers are more likely to be stopped by police
than any other racial group, and (3) the circumstances of the traffic stop
leading to Young’s arrest suggest the traffic stop here was racially motivated.
The allegations of a racially motivated stop appear to be specific.
Young contends he was stopped for traffic infractions, but he was never cited
for any such infractions. He claims the stop was a pretext to order him out of
his vehicle and conduct a search exceeding the scope of any genuine suspicion
of illegal activity. He also alleges the use of excessive force. When, out of
fear, Young questioned the need for him to leave his vehicle, he says he was
forcibly removed, beaten, and thrown to the ground, even though he spoke
courteously and offered no resistance. All of this took place, Young claims, in
retaliation for his conduct in watching officers stopping and searching the
vehicle of another motorist (i.e., “rubbernecking,” which is both legal and

28
common). And unlike a typical traffic stop in which an officer approaches a
motorist from behind, seeing only the pattern of driving behavior—making it
implausible that the race of the driver could be a motivating factor—Young
alleges the officer who stopped him had ample opportunity to observe him
and take note of his skin color. Suffice it to say that these circumstances, if
true, may amount to what is commonly known as racial profiling. 13 While
that kind of charge has never been recognized under the equal protection
clause,14 it is now cognizable under section 745, subdivision (a)(1) of the
Racial Justice Act.

13 State v. Soto (N.J. Super.Ct. Law Div. 1996) 324 N.J.Super. 66, 69;
see Atwater v. City of Lago Vista (2001) 532 U.S. 318, 372 (dis. opn. of
O’Connor, J.) (observing that, “as the . . . debate over racial profiling
demonstrates all too clearly, a relatively minor traffic infraction may often
serve as an excuse for stopping and harassing an individual”); Illinois v.
Wardlow (2000) 528 U.S. 119, 133, footnotes 9 and 10 (conc. & dis. opn. of
Stevens, J.) (referring to racial profiling studies in two footnotes focusing on
racial disparity in police investigations); Hinton, An Unjust Burden: The
Disparate Treatment of Black Americans in the Criminal Justice System,
Vera Institute of Justice (May 2018) page 7 (“Studies have found that police
are more likely to pull over and search black drivers despite lower
contraband hit rates.”); ibid. (“Studies on police use of force reveal that black
people are more likely than white people to experience use of force by
police.”).
14See Sklansky, Traffic Stops, Minority Motorists, and the Future of the
Fourth Amendment (1997) 1997 Sup. Ct. Rev. 271, 307–308 (“The Supreme
Court has construed the Equal Protection Clause to permit almost any
government action that avoids explicit discrimination, unless it can be shown
to be based on outright hostility to a racial or ethnic group. As a
consequence, the Clause provides no protection against what is probably the
most widespread cause today of discriminatory policing: unconscious bias on
the part of generally well-intentioned officers. And even when a police officer
does act out of racial animus—pulling over a black motorist, for example,
simply because the officer does not like blacks—demonstrating that typically
proves impossible.” (Italics in original.)).

29
 Demurring to Young’s factual claims about the circumstances of his
arrest, the Attorney General contends that Young should be required to make
“some showing of charging disparity” in order to obtain discovery relating to
the prosecution’s charging decision under section 745, subdivision (a)(3). We
do not agree. In essence, the Attorney General invites us to take the same
approach under the Racial Justice Act that the Armstrong court took in the
equal protection context by making it a precondition to discovery that Young
make some showing others of a different race were treated more leniently
than he was treated. We decline to do so. The holding in Armstrong—which
has long been criticized for requiring defendants to prove up their claims on
the merits just to be entitled to discovery15—presents a quandary for
defendants seeking to pursue allegations of race-based selective prosecution
that we think is inconsistent with the legislative intent behind the Act.
“[M]ost of the relevant proof in selective prosecution cases will normally be in
the Government’s hands.” (Wayte v. United States (1985) 470 U.S. 598, 624
(dis. opn. of Marshall, J.).) Preventing a defendant from obtaining
information about charging decisions without first presenting that same
evidence in a discovery motion is the type of a Catch-22 the Act was designed
to eliminate.
Nor are we persuaded, as the Armstrong Court was, that “[t]he
justifications for a rigorous standard for the elements of a selective-
prosecution claim . . . require a correspondingly rigorous standard for
discovery in aid of such a claim.” (Armstrong, supra, 517 U.S. at p. 468.)
While the Armstrong court was focused on creating a discovery-triggering

15 Karlan, Race, Rights, and Remedies in Criminal Adjudication (1998)
96 Mich. L.Rev. 2001, 2005, 2023–2029; Jampol, Goodbye to the Defense of
Selective Prosecution, United States v. Armstrong, 116 S.Ct. 1480 (1996)
(1997) 87 J.Crim.L. & Criminology 932, 962–964.

30
standard in the equal protection setting that was high enough to minimize
the potential for insubstantial claims, thereby saving prosecutors from the
distraction of responding to them (id. at pp. 463–464)—a concern that echoes
the floodgates argument derided by Justice Brennan in McCleskey—it
appears to us that in section 745, subdivision (d), our Legislature had a
different priority. The Legislature was focused, instead, on creating a
discovery-triggering standard that is low enough to facilitate potentially
substantial claims, even if it came at some cost to prosecutorial time and
resources. That is a policy choice the Legislature had the prerogative to
make, unfettered by the “ ‘background presumption’ ” (Armstrong, supra,
517 U.S. at p. 463) that drove the high court’s decision in Armstrong.
D. The Attorney General’s Argument That Evidence Pertinent
to Section 745, Subdivision (a)(1) Cannot Justify Discovery
Founded on an Alleged “Violation” of Section 745,
Subdivision (a)(3)
Undoubtedly recognizing the likely unsustainability of the trial court’s
premise that Young relies solely on his race, the Attorney General offers a
statutory interpretation argument in defense of the court’s ruling. He
contends that we should affirm because evidence of racial bias in traffic stops
is relevant only to an alleged “violation” of section 745, subdivision (a)(1),
which specially covers situations where a law enforcement officer exhibits
bias or animus towards the defendant because of the defendant’s race. The
Attorney General argues that if evidence of bias during traffic stops can
justify discovery pertaining to the prosecution’s charging decisions, which
would be covered under section 745, subdivision (a)(3), “[s]uch a construction
would effectively require the court to order any and all discovery sought by
the defense for any potential violation of section 745, subdivision (a), as long
as the defense provides minimal evidence of a different potential violation.”

31
 We reject this line of argument as well. The four numbered subparts
within section 745, subdivision (a) do not describe independent “violations” of
the statute. Rather, they describe different means of proving that the state
exercised its criminal sanctions power “on the basis of race, ethnicity, or
national origin” in violation of section 745, subdivision (a). The text and
structure of section 745, subdivision (a) confirm this. The language
immediately preceding subdivision (a)(1)–(4) states that a violation of
section 745, subdivision (a) may be established by “any of the following,” and
the listed subparts (1) through (4) then follow. (§ 745, subd. (a), italics
added.) Collectively, these subparts allow a defendant to proceed by direct
evidence of discriminatory intent (i.e., an exhibition of “bias or animus” or use
of “racially discriminatory language” (§ 745, subd. (a)(1)–(2)) or by proof of
racial bias against a group of which defendant is a member based on harsher
treatment of his group vis-à-vis others of a different race (§ 745, subd. (a)(3)–
(4)). Within this broad scheme, which covers every stage of the prosecutorial
process—from investigation through charging, trial, conviction, and
sentencing—defendants may pursue different theories supported by different
kinds of proof. What the Attorney General overlooks is that the evidence
offered in support of a theory of violation under one subpart may be
corroborative of the evidence supporting another theory of violation under a
different subpart. In short, as we read them, subdivision (a), subparts (1)
and (3) are not isolated pathways to proving a violation, but in a given case—
this one being an example—may work in tandem.
In arguing that evidence pertaining to a theory under subdivision (a)(1)
has no bearing on a theory under subdivision (a)(3), the Attorney General
fails to appreciate how evidence of racial bias in arrests may be potentially
relevant to an allegation of racial bias in charging. We understand the logic

32
of Young’s theory to be as follows: Police officers exercise broad discretion in
carrying out their power to arrest, and if there is racial bias at the level of
who is arrested for possession of Ecstasy for sale, the discretionary choices
officers make will be reflected in the pool of suspects the District Attorney
ultimately decides to charge, and may therefore taint the charging process.
Even assuming he has presented enough to warrant an inference of racial
profiling at the arrest level, we offer no view about whether such an
argument might be supported here at the charging level—the statistics may
show ultimately it is not—but we disagree with the Attorney General’s
suggestion that there is no “logical link” between the claimed evidence of
racial profiling and the request for discovery of charging statistics.
A good illustration of the theory Young pursues is Yick Wo v. Hopkins
(1886) 118 U.S. 356, a 19th century equal protection landmark and the font of
modern selective prosecution law. In Yick Wo, the petitioners, two Chinese
nationals, were fined and jailed for operating laundries without a permit.
Seeking habeas corpus relief, they argued that the San Francisco Board of
Supervisors exercised arbitrary discretionary power to deny them and 200
others of Chinese descent permission to operate laundries in wooden
buildings due to the risk of fire, while granting permits to 80 others of
non-Chinese descent who were operating laundries “under similar
conditions.” (Id. at p. 374.) The effect of this discriminatory pattern of
granting permits was to expose only laundry operators of Chinese descent to
criminal prosecution. Granting habeas relief, the high court found that,
“[t]hough the law itself be fair on its face, and impartial in appearance, yet, if
it is applied and administered by public authority with an evil eye and an
unequal hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, the denial

33
of equal justice is . . . within the prohibition of the constitution.” (Id. at
pp. 373–374.) McCleskey treated Yick Wo as a “rare” artifact of a previous
era of equal protection law.16 By endorsing statistics as an appropriate mode
of proof and eliminating any requirement of showing discriminatory purpose,
the Racial Justice Act revitalizes the venerable principle, recognized 135
years ago in Yick Wo, that we must offer a remedy where a facially neutral
law is applied with discriminatory effect.
It seems fitting that this principle has been revivified by statute here in
California, where it was born, but what is most significant about Yick Wo, as
pertinent here, is its recognition that discretionary decisionmaking by the
Board of Supervisors had the effect of exposing only Chinese nationals to
subsequent criminal enforcement. Justice Blackmun, dissenting in
McCleskey, employed similar logic in rebutting what he saw as the flawed
equal protection analysis by his colleagues in the majority. Justice Blackmun
pointed out that “McCleskey produced evidence concerning the role of racial
factors at the various steps in the decisionmaking process, focusing on the
prosecutor’s decision as to which cases merit the death sentence.”
(McCleskey, supra, 481 U.S. at p. 356 (dis. opn.).)17

16 McCleskey, supra, 481 U.S. at page 293, footnote 12 (describing
Yick Wo as one of the “rare cases” in which “statistical disparities [were
found] ‘to warrant and require,’ [citation] a ‘conclusion [that was] irresistible,
tantamount for all practical purposes to a mathematical demonstration,’
Gomillion v. Lightfoot [(1960) 364 U.S 339,] 341, that the State acted with a
discriminatory purpose”).
17See Wayte v. United States, supra, 470 U.S. at page 610; id. at
pages 630–631 (dis. opn. of Marshall, J.) (parting ways with the majority’s
conclusion that a policy of “passive enforcement” under which the federal
government chose only certain draft resisters for prosecution had the effect of
targeting those who exercised First Amendment rights; under the majority’s
approach, Justice Marshall reasoned, “there would have been no equal

34
 While the McCleskey majority saw the various stages of discretion at
issue in death penalty cases as so atomized and discrete that the weight to be
given to McCleskey’s evidence of prosecutorial discretion, particularly in the
one county he focused on, was “limited” (McCleskey, supra, 481 U.S. at p. 295,
fn. 15), Justice Blackmun recognized that each element of discretionary
decisionmaking must be taken into account in interpreting the aggregate
statistics. Applying that logic to this case, if—as Young alleges—there is
racial discrimination by Solano County police officers in arresting people for
possession of Ecstasy for sale, that may be reflected in downstream decisions
by the District Attorney concerning whom to charge. Though no California
courts have directly addressed this issue, in New Jersey allegations of racial
profiling—supported by a colorable basis to substantiate them—have been
held to justify discovery concerning race-based selective prosecution. (State v.
Kennedy (N.J.Super.Ct.App.Div. 1991) 247 N.J.Super. 21, 33–34; State v.
Ballard (N.J.Super.Ct.App.Div. 2000) 331 N.J.Super. 529, 534, 538.) We
accept these New Jersey cases as correctly decided.
To be sure, we agree with the Attorney General that the statistical
proof Young puts forward does not make out a particularly strong case of
racial profiling. Young’s argument based on statewide data and data from
another county not only fails to focus directly on Solano County, but lacks
any of the statistical controls that persuaded the courts in Kennedy and State
v. Ballard to credit the profiling claims made in those cases. From that
unimpressive foundation, he draws the inference that the Solano County

protection violation in Yick Wo v. Hopkins”; “[i]n Yick Wo, th[e] prior action
was the discriminatory denial of licenses, which affected the definition of the
class from which prosecutees were chosen”; “[i]n this case, the referrals made
by Selective Service to the Justice Department for investigation and possible
prosecution played a similar role and may also have been discriminatory”).

35
District Attorney’s charging practices are tainted with racial bias. The flaws
in Young’s statistical proof, however, serve to illustrate how the good cause
standard works. At this stage, he need not make a strong case but only a
plausible one. Here, his claim that he was closely observed before being
pulled over and subjected to excessive force in the course of his arrest
arguably tips the scale from a situation in which he is speculating about
possible racial profiling to one in which, in his case, specific facts arguably
provide circumstantial proof of the substance of the allegation.18 Statistical
discovery could bolster this claim and rationally tie it to prosecutorial
decisionmaking, at least as a prima facie matter.
In the end, however, whether the allegations underscoring Young’s
racial profiling theory are enough to support a plausible justification that a
violation of section 745, subdivision (a) could or might have occurred in his
case is an issue for the trial court to assess, exercising its discretion upon an
application of the correct legal standard governing good cause. Deciding
pretrial discovery motions is not a function well-suited for appellate courts,
since it requires careful weighing of a variety of considerations trial courts
are best positioned to assess. On the limited record before us, we therefore
decline to decide whether Young has shown good cause for the disclosures he
requests. Having enunciated the applicable plausible justification standard,

18Cf. Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 162–163
(there was plausible justification for Pitchess discovery demanding all crime
and arrest reports filed by two officers over a 10-year period where the
defendant alleged that the officers engaged in a pattern of “ ‘conceal[ing] and
obfuscat[ing] the true state of facts, namely that said officers or either of
them were the aggressors and committed unnecessary acts of aggressive
behavior, violence, excessive force or acts demonstrating racial and/or ethnic
prejudice’ ”).

36
we will remand for the trial court to evaluate the issue, along with other
factors that may be pertinent to good cause, as explained below.
E. Beyond Pitchess: The Full Range of Discretionary
Considerations To Be Weighed on Remand
The good cause standard applicable to Pitchess discovery motions
supplies a useful analogy here, but in some respects the analogy is
incomplete. It is incomplete because, as noted above, the concept of discovery
relevance in the Pitchess context (which is defined by subject matter
“materiality” to the defendant’s defense or proposed defense) is narrower
than under section 745, subdivision (d) (which is defined by whether it is
reasonably calculated to show a violation of section 745, subdivision (a) has
been shown). Although that difference is easy to state in the abstract, in
practice it presents some formidable challenges, and given the breadth of the
disclosures Young seeks, this case illustrates one of them.
Upon a comparison of the treatment of defendants of different races
“who have committed similar offenses and are similarly situated,” a
“significant difference in seeking or obtaining convictions or in imposing
sentences” will prove a violation of section 745, subdivision (a) unless the
prosecution can “establish race neutral reasons for the disparity.” (§ 745,
subds.(a)(3), (h)(1).) Because, under this scheme, the Legislature has
specified a particular class of proof—“statistical evidence or aggregate data”
(§ 745, subd. (h)(1))—and that genre of proof by definition goes beyond
discrete conduct by a particular actor on a particular occasion, section 745,
subdivision (d) expands the reach of discovery beyond the self-limiting
confines of Pitchess discovery, which must always be directly tied to the
merits of the pending case against the defendant.
But how far beyond relevance to the merits of the defendant’s case does
discovery under section 745, subdivision (d) go? And what criteria should

37
trial courts apply in managing a request for “statistical evidence or aggregate
data” (§ 745, subd. (h)(1))? These are daunting questions. Except possibly for
discovery in civil class actions (see Pioneer Electronics (USA), Inc. v. Superior
Court (2007) 40 Cal.4th 360, 373–374) and other forms of “class-like” civil
proceedings (see Williams v. Superior Court (2017) 3 Cal.5th 531, 558–559),
we know of no procedural setting that presents discovery questions as far-
reaching as those that may arise when a defendant seeks discovery of
“statistical evidence or aggregate data” as defined in section 745,
subdivision (h)(1). Because a “good cause” requirement is the traditional way
of conferring judicial gatekeeping discretion in discovery to prevent “fishing
expeditions” (e.g., Facebook, Inc. v. Superior Court (Touchstone) (2020)
10 Cal.5th 329, 344 [enforcement of subpoena duces tecum in criminal
pretrial discovery subject to good cause determination]),19 we think the
Legislature’s choice to permit discovery only upon leave of court, rather than
though self-executing party-initiated discovery, is particularly important
when it comes to managing these difficult questions.
We need not reinvent the proverbial wheel when it comes to listing all
considerations that may bear upon the proper exercise of discretion in this
particular context. A vein of common law precedent, predating the
codification of criminal discovery in California, supplies some general
guidance. Distilling common law discovery principles that were developed in
criminal cases before the enactment of Chapter 10, a Second District panel in
Alhambra, supra, 205 Cal.App.3d 1118, enunciated a list of seven
discretionary considerations trial courts should “consider and balance” in

19Prior to 1986, the civil discovery regime operated within a system in
which document discovery could only be obtained upon a judicial good cause
determination. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355,
379; see Elmore v. Superior Court (1967) 255 Cal.App.2d 635, 638–640.)

38
evaluating pretrial discovery requests from the defense. (Id. at p. 1134; see
Facebook, Inc. v. Superior Court (Touchstone), supra, 10 Cal.5th at pp. 345–
347 [denoting these considerations “the Alhambra factors”].) Notably, only
one of the Alhambra factors is whether there is plausible justification for
discovery. (Alhambra, at p. 1136 [“the trial court is required to balance a
number of factors in addition to the showing of plausible justification”].)
The full list of seven Alhambra factors is as follows: “(1) whether the
material requested is adequately described, (2) whether the requested
material is reasonably available to the governmental entity from which it is
sought (and not readily available to the defendant from other sources),
(3) whether production of the records containing the requested information
would violate (i) third party confidentiality or privacy rights or (ii) any
protected governmental interest, (4) whether the defendant has acted in a
timely manner, (5) whether the time required to produce the requested
information will necessitate an unreasonable delay of defendant’s trial,
(6) whether the production of the records containing the requested
information would place an unreasonable burden on the governmental entity
involved and (7) whether the defendant has shown a sufficient plausible
justification for the information sought.” (Alhambra, supra, 205 Cal.App.3d
at p. 1134, fns. omitted.)
No hard and fast rules can be laid down for the application of this
multifactor test on facts presented here, or in any other case, since it is
designed to be flexible. But starting with Alhambra factor 7 as a threshold
consideration, we can say this much: Where the defendant makes a showing
of plausible justification that there was or could have been a violation of the
Racial Justice Act, thus triggering access to “all relevant evidence” (Assem.
Bill 2542 (2019–2020 Reg. Sess.) § 2, subd. (j)) concerning a potential

39
violation of section 745, subdivision (a), it will likely be an abuse of discretion
to “totally foreclose[]” discovery. (Murgia v. Municipal Court, supra,
15 Cal.3d at p. 305; cf. Williams v. Superior Court, supra, 3 Cal.5th at p. 559
[“ ‘The trial courts in exercising their discretion should keep in mind that the
Legislature has suggested that, where possible, the courts should impose
partial limitations rather than outright denial of discovery’ ”].) Even, for
example, where a court is inclined to deny a motion presented so close to the
date of trial that the discovery process itself threatens to interfere with the
court’s obligation to provide a speedy trial, such a motion should be denied
without prejudice to its renewal posttrial or even postjudgment.
IV. CONCLUSION
“Because the standard we announce is new, the proper course is to
remand to the trial court for application of the . . . test formulated above to
the facts of this case.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798,
824; see Guerrero v. Hestrin (2020) 56 Cal.App.5th 172, 190 [remanding to
trial court to apply correct standard in deciding litigant’s application to
inspect a wiretap order and related materials].)
If, on remand, Young persuades the trial court that he has a plausible
justification for alleging racial bias in connection with his arrest, the
Attorney General’s argument that that is insufficient to warrant discovery
concerning prosecutorial charging, at the end of the day, will go to the form,
scope, and timing of discovery, not to whether discovery should be ordered at
all. Young seeks disclosure of five years’ worth of data, and data concerning
not just the drug offense at issue in this case, but drug offenses under many
related statutes, together with a wide range of associated information. Even
if he meets the threshold standard for entitlement to discovery that we set
forth in this opinion, how much of this requested data may be ordered

40
disclosed, when, and in what form, is for the trial court to consider, in an
exercise of its discretion, weighing probative value against burden.
Accordingly, we will direct the trial court to reconsider Young’s
discovery motion under the standard discussed in this opinion, bearing in
mind that “[t]here are few claims as serious as the charge put forth by the
defendant[] here—that the government has selected [him] for prosecution
because of [his] race. Such claims deserve the most careful examination by
the courts so that the prosecutorial power does not become a license to
discriminate based on race. Discovery is the crucial means by which
defendants may provide a trial judge with the information needed in order to
determine whether a claim of selective prosecution is meritorious.” (U.S. v.
Armstrong, supra, 48 F.3d 1508, 1520, revd. on other grounds (1996) 517 U.S.
456.)
V. DISPOSITION
Let a peremptory writ of mandate issue directing respondent superior
court to vacate its June 4, 2021 order denying Young’s motion for discovery
under the Racial Justice Act, and to conduct a new hearing to reconsider
Young’s discovery motion in a manner consistent with this opinion.

STREETER, Acting P. J.

WE CONCUR:

BROWN, J.
DESAUTELS, J.*

Judge of the Superior Court of California, County of Alameda,
*

assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

41
Trial Court: Superior Court of California, County of Solano

Trial Judge: Hon. Jeffrey C. Kauffman

Counsel: Courtney Reed, Deputy Alternate Public Defender,
Solano County Office of the Alternate Defender,
for Petitioner.

Cooley and Randall R. Lee for Ash Kalra, California State
Assemblymember, as Amicus Curiae on behalf of Petitioner.

Mary K. McComb, State Public Defender, Elizabeth Eng,
Deputy State Public Defender, as Amicus Curiae on behalf of
Petitioner.

Emi MacLean, Grayce Zelphin, and Shilpi Agarwal, for
American Civil Liberties Union Foundation of Northern
California and Equal Justice Society, as Amici Curiae on
behalf of Petitioner.

No appearance for Respondent.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant
Attorney General, Seth K. Schalit and Bridget Billeter,
Deputy Attorneys General, for Real Party in Interest.

Young v. Superior Court – A162850