Filed 1/25/24
See concurring opinion.
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MICHAEL EARL MOSBY III,
Petitioner, E080924
v. (Super.Ct.No. RIF1604905)
THE SUPERIOR COURT OF OPINION
RIVERSIDE COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Bernard Schwartz,
Judge. Petition granted.
Steven L. Harmon, Public Defender, David J. Macher, Linda Gail Moore,
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.
1
Complex Appellate Litigation Group, Kirsten 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, counsel for Fred T.
Korematsu Center for Law and Equality, Boston University Center for Antiracist
Research; Five additional centers for Race, Inequality, and the Law; and Nine
Individual Professors and Scholars as Amici Curiae on behalf of Petitioner.
Cooley, Randall R. Lee; Reed Smith, Katelyn Kang; Robby L.R. Saldaña and
Elizabeth Reinhardt, counsel for Dean Chemerinsky and Law Professors and Legal
Scholars as Amici Curiae on behalf of Petitioner.
No appearance for Respondent.
Michael A. Hestrin, District Attorney, W. Matthew Murray and Kristen Allison,
Deputy District Attorneys for Real Party in Interest.
Petitioner Michael Earl Mosby III (Petitioner) was charged by the Riverside
County District Attorney’s Office (the District Attorney) with the drive-by shooting of
Darryl King-Divens along with a gun enhancement that he discharged a firearm causing
great bodily injury or death; and three special circumstances, including having
committed multiple murders. Subsequent to Petitioner killing King-Divens, Petitioner
had been convicted in Los Angeles County of two additional murders and attempted
murder. The District Attorney chose to seek the death penalty in Petitioner’s case.
Petitioner filed a “Motion for a Hearing & Relief Pursuant to the Racial Justice
Act” (the Motion) claiming the District Attorney’s decision to seek the death penalty
violated the California Racial Justice Act of 2020 (CRJA) (Assem. Bill No. 2542 (2019-
2
2020 Reg. Sess.), Stats. 2020, ch. 317, § 1), which added section 745 to the Penal
Code.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 (Amended CRJA) (Assem. Bill No.
256 (2021-2022 Reg. Sess.) (Assem. Bill 256), Stats. 2022, ch. 739, § 2). 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 to make a prima facie
case of racial discrimination under the CRJA and Amended CRJA, Petitioner must
satisfy the following two-prong test: (1) that 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 to establish a prima facie case entitling Petitioner to an evidentiary
hearing under the CRJA and the Amended CRJA.
1 All further statutory references are to the Penal Code unless otherwise
indicated.
3
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 (a) the Fred T. Korematsu Center for Law and
Equity and several other centers for race, inequality, and the law; and (b) Dean Erwin
Chemerinsky and 10 law professors and legal scholars. They contend 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 the 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.
However, as we explain post, based on the evidence presented in this case, which
included (1) factual examples of nonminority defendants who committed murder but
were not charged with the death penalty in cases involving similar conduct and who
4
were similarly situated, e.g. had prior records or committed multiple murders, and
(2) statistical evidence that there was a history of racial disparity in charging the death
penalty by the District Attorney, 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 District Attorney 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 to 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 and
direct the trial court to conduct an evidentiary hearing.
FACTUAL AND PROCEDURAL HISTORY
A. FACTS, CHARGES AND PRIOR CONVICTIONS
The parties presented the following facts in the Petition and return: On April 8,
2014, at approximately 2:30 p.m., Darryl King-Divens was riding his bicycle on
Hemlock Avenue in Riverside. Petitioner drove by King-Divens, shot at him three
times, and then drove away. King-Divens was declared deceased at the scene.
The District Attorney contended the following facts in the return as to the Los
Angeles murders and attempted murder: Prior to being apprehended, Petitioner was
involved in killing two other persons and attempting to kill one person in Los Angeles.
On April 17, 2014, at approximately 11:30 p.m., Pedro Rodriguez was shot by
5
Petitioner over a dispute regarding a friend of Petitioner’s. On April 23, 2014,
Petitioner killed victim Quezada2 by shooting him from Petitioner’s vehicle while
Quezada ran down the street. On April 1, 2014, Petitioner attempted to kill Leon
Merritt by shooting him while he was seated in his vehicle. Merritt was shot in the arm
and leg, but he survived. Petitioner was convicted of both murders and the attempted
murder on January 24, 2017.3
Petitioner was charged by the District Attorney in a first amended information
with murder (Pen. Code, § 187) with the special allegation that he personally and
intentionally discharged a firearm causing great bodily injury or death (§ 12022.53,
subd. (d)). In addition, he was charged with the special circumstances that he
discharged a firearm from a motor vehicle at another person outside the vehicle
(§ 190.2, subd. (a)(21)), and two allegations that he had two previous convictions of
murder in the first or second degree (§ 190.2, subd. (a)(2)). On March 15, 2019, the
District Attorney provided notice to Petitioner that it intended “after review of all facts
and circumstances underlying the charges” to seek the death penalty in the case.
B. FIRST MOTION FOR RELIEF UNDER CRJA
Petitioner filed the Motion on July 26, 2022, seeking an evidentiary hearing
pursuant to the CRJA. Petitioner contended that denial of the Motion would violate
Petitioner’s rights guaranteed by section 745, his right to equal protection of the law,
2 The first name of victim Quezada is not found in the record.
3 Although Petitioner admits the convictions, he denies the facts of the cases.
6
and cause 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 2021,4 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 contending 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 addressed the various
4 The data was collected by the Riverside County Public Defender’s Office.
7
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 drive-by
shooting special circumstance and two prior murder conviction special circumstances.
The cases relied on by Petitioner did not involve this combination of charges.
Additionally, the statistics provided by Petitioner failed to consider the enhancements
charged against him, the aggravating factors and his specific criminal history. Further,
the Omori study was flawed as she conceded no statistically significant difference in
African-American and Caucasian groups based on the small sample size, and included
juvenile cases, which are not eligible for the death penalty.
On September 29, 2022, Petitioner filed a reply to the District Attorney’s
opposition. 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 a prima facie case; he
had met his similarly situated requirement.
Petitioner filed supplemental evidence in support of the Motion on October 5,
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
imposition of the death penalty in Riverside County. Peterson’s study relied on
information on the charging of cases in Riverside County between January 2007 and
8
July 2019. The information included every case in which murder was charged, every
case where a special 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 penalty 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 have received a death sentence than Caucasian defendants. This proved
that African-American defendants received special circumstances and death penalty
notices between 2006 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-
9
Caucasian victims were less likely to receive the death penalty than those cases
involving a Caucasian victim.
The study that was prepared by Baumgartner 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, an “Annotated Timeline of Riverside County Racial History”
was included as an exhibit.
Petitioner also filed a supplemental reply in support of the Motion. 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 filed by Petitioner on September 28, 2022, established the existence of racial
disparities even taking into account similarly situated cases.
Petitioner also argued that the section 745, subdivision (a)(4)(A), claim—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
looked at 689 cases in Riverside County from January 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 be 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 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 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.
Mosby [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 systemic bias
has manifested in they themselves being more harshly charged than similarly situated
defendants of other races.” Petitioner’s “basic failure then is in the failing to give any
reason to think that a defendant of another race who is also alleged to have personally
murdered someone in a drive-by shooting and a criminal history that includes two other
murders would be treated more leniently.”
C. SECOND MOTION FOR RELIEF UNDER CRJA
On December 6, 2022, Petitioner filed his second “Motion for a Hearing &
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 the only showing that was
required to be made was through statistical and aggregate evidence that African-
13
American defendants who were accused of special-circumstance murder were similarly
situated to Caucasian defendants 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
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 subdivisions (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 those 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 case. Petitioner then
provided the background of several cases involving Caucasian persons charged with
special-circumstance murder with 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. Noy Boukes had a prior conviction of murder
14
in 2016. Boukes drove his car to a location in Hemet and shot and killed a fellow
member of a White supremacist group. Boukes was given a sentence of life without the
possibility of parole (LWOP) in 2019. He had several other prior convictions. There
was no meaningful difference between Petitioner and these two Caucasian men but the
Caucasian men received lesser charges.
In addition, Petitioner presented cases in which Caucasian defendants were
charged with the special circumstance of multiple murders: Robert Lars Pape killed and
burned three people. The District Attorney did not seek the death penalty against Pape
and he was serving a LWOP sentence. Jared Bischoff killed a man who was 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. Petitioner also presented evidence of Caucasian
young 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
Coon’s 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, which
involved the kidnapping and torture of a victim—she pled guilty to voluntary
manslaughter. Owen Skyler Shover 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. Andrew Burke was 25 years old when he stabbed to death his
adopted parents/grandparents and the District Attorney chose not to seek the death
15
penalty. Petitioner was 24 years old when the alleged offense took place but he was
facing the death penalty.
Finally, Petitioner presented the “highly aggravated” murder by a Caucasian
defendant 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.
Based on the foregoing, Petitioner argued that the factual comparisons
illustrating 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. Also included was 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.
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 that, 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
16
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 to show similar conduct. Petitioner argued that the case-specific
evidence provided was sufficient to support he made a prima facie showing. The trial
court questioned whether the list took into account the wishes of the victim 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 an opposition to the Second Motion. It argued the
trial court should not rely on statistics alone as it would incentivize charging Caucasian
defendants with the death penalty. The District Attorney argued that nine 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) Burke had a well-documented history of mental illness; (2) Unger’s case should be
reviewed in chambers with just the parties; (3) Pape had to be refiled because of the
strength of the evidence and it was not clear which acts were committed by Pape and
which acts were committed by his codefendant, who was under 18 years of age and
could not be charged with the death penalty; (4) Bischoff’s case involved a romantic
17
relationship and several other participants; (5) 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;
and (9) Ricks killed his victim in a drive-by shooting based on revenge but had no
criminal history of committing violent crimes or murder. The District Attorney
concluded that Petitioner had failed to provide evidence that he was similarly situated to
a defendant of another race who was charged less seriously than in this case.
Petitioner filed a reply. Petitioner once again argued that he only needed to
present statistical evidence to show that Petitioner was being charged more seriously
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 anti-
discrimination 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. Petitioner was entitled to a hearing on the
merits of his case.
The continued hearing on the Second Motion occurred on February 24, 2023.
Petitioner argued that aggregate evidence was sufficient if it took into account the
18
similarly situated requirement. The evidence presented took into account this
requirement. The wishes of the victim’s family and the strength of the evidence were
irrelevant to explain racial differences in charging.
The trial court stated again it was clear that pursuant to section 745, there was a
twofold analysis that needed to take place. First was a statistical showing. “The
[second] 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 the
strength of the case, the victim’s family’s wishes, and the criminal history of Petitioner
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’s. 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
19
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, subdivision (a), and to order an evidentiary
hearing.
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, subdivisions (a)(3) and (a)(4). Petitioner insists the trial court misinterpreted the
plain language, the legislative intent, and policy aims of section 745, subdivisions
(a)(3), and (a)(4). The plain language supports only aggregate and statistical evidence is
required to make a prima facie case.
The District Attorney urges this court to uphold the superior court’s
interpretation of section 745, subdivision (a)(3). The District Attorney insists 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. The
District Attorney 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 factors. At a minimum, a defendant must prove
under section 745, subdivision (a)(3), that another defendant who is similarly situated
20
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.
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 No. 2542 (2019-2022
Reg. Sess.) §2 (Assem. Bill 2542) (Stats. 2020, ch. 317, § 2, subd. (i), pp. 3707-3708;
see Young v. Superior Court of Solano County (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.” (Assem. Bill
2542, § 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
21
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
obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race,
ethnicity, or national origin.” (§ 745, subd. (a).) A defendant may establish a violation
of the CRJA in various ways. This case concerns the charging stage of the prosecutorial
process.5 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
5 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.” (§ 745, subd. (a)(4)(A).) 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.
22
defendant’s race, ethnicity, or national origin in the county where the convictions were
sought or obtained.” (§ 745, subd. (a)(3), italics added.)6
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
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
6 We highlight those terms that are defined in section 745.
23
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
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.” 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
24
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, Assem. Bill 2542 was further amended to add a prima facie
requirement. The proposed section 745, subdivision (a)(4), provision was 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. 5, 2020.)
25
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
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 Assem. 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
26
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 “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.” (Assem. Floor Analysis, Concurrence in Sen. Amend. to Assem. Bill
No. 256 (2021-2022 Reg. Sess.) Aug. 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
Legislature.” (People v. Overstreet (1986) 42 Cal.3d 891, 895-896.) “When statutory
language is clear and unambiguous, there is no need for construction and courts should
27
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
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.” (§ 745, subd. (c)(1).) 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
28
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.” 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).
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 or
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
29
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
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 the 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.
30
“Conduct” is defined as “a mode or standard of personal behavior especially as based on
moral principles.”7 In criminal cases, Evidence Code sections 1108 and 1109 allow for
the admission of uncharged “conduct” that is similar to the currently charged offense to
prove that the person did, in fact, commit the currently charged acts. This involves the
admission of the facts of the uncharged 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, 423
[“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
7 (Merriam–Webster’s Online Dict. (2023) < http://www.merriam-
webster.com/dictionary> [as of Jan. 18, 2024] definition noun.)
31
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 defined in other criminal cases.
While we may agree with Petitioner that relying on the words “similarly
situated” and the definition in the Amended CRJA, it may be sufficient to look at
similar crimes such as murder, 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 this 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
32
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.
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 anti-discrimination 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
33
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).)
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.)8 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
8 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.”
34
noted in the habeas context, “[t]o establish a prima facie showing for habeas 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 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 factual evidence to show nonminority
defendants in Riverside County were charged with lesser crimes despite being engaged
35
in similar conduct as Petitioner, e.g. drive-by shootings or murders with prior
convictions of murder. 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 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 of
section 745, subdivision (h)(1), provides that “more frequently sought or obtained”
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
36
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).)
Based on the foregoing, if a 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, 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 drive-by shootings 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
37
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 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.
CERTIFIED FOR PUBLICATION
MILLER
Acting P. J.
I concur:
CODRINGTON
J.
38
[Mosby v. Superior Court, E080924]
MENETREZ, J., Concurring.
Defendant Michael Earl Mosby III 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. Mosby filed a motion for a hearing under the
California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1) (RJA). Mosby, 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. Mosby’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 Mosby’s motion without prejudice, ruling that more than
statistical evidence is required to make a prima facie case under the RJA. Mosby 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 Mosby’s evidence was still not sufficient to
make a prima facie case.
In his petition for writ review of the trial court’s rulings, Mosby 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 Mosby 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
2
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.” (§ 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
4
RJA’s 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
5
than under McCleskey. But if the trial court were right that statistical evidence cannot
be sufficient 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,
6
the defendant need not negate every possible race-neutral reason for the disparate
treatment 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 Mosby needed to produce
evidence that there was another defendant who was similar to Mosby 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
7
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 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 Mosby’s
statistical evidence, and the evidence is clearly sufficient to make a prima facie case.
Mosby’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 Mosby’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 Mosby’s writ petition, the People claim that Mosby
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
8
People do not elaborate or attempt to defend the claim, and I believe that the claim is
mistaken. Mosby 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 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. Mosby’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 Mosby 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. Mosby’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
Mosby v. Super. Ct.
Combined Opinion