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California Court of Appeal: Statistical Evidence Showing Racial Disparity Combined With Evidence Showing Non-Minority Defendants Charged With Lesser Crimes Establishes Prima Facie Case Under California Racial Justice Act

by Douglas Ankney

 

The Court of Appeal of California, Fourth Appellate District, held that “if a defendant provides statistical evidence showing a racial disparity in the charging of non-minority defendants and African-American defendants, and provides evidence of non-minority 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 [California Penal Code § 745(a)] has occurred. As such, a defendant has met his burden of establishing a prima facie case.” (Note: All statutory references are to the California Penal Code.)

Michael Earl Mosby, III, was charged by the Riverside County District Attorney’s Office (“DA”) with murder in connection with the drive-by shooting of Darryl King-Divens and a gun enhancement of discharging a firearm causing great bodily injury or death, along with three special circumstances – including having committed multiple murders. (Mosby had been involved in three additional shootings that resulted in two murders.) On March 15, 2019, the DA notified Mosby of the People’s intent to seek the death penalty.

In July 2022, defense counsel filed a motion alleging that the DA’s decision to seek the death penalty violated the California Racial Justice Act (“CRJA”) (Assem. Bill No. 2542) (2019-2020 Reg. Sess.); (Stats. 2020, ch. 317, § 1), which added § 745 to the Penal Code. Mosby requested an evidentiary hearing. In support, he provided statistical evidence in his petition showing that in Riverside County:

* African-Americans were charged with special circumstances in their murder cases at a rate of 64.86 per 100,000 of the adult population (“AP”) compared to a rate of 5.00 per 100,000 AP for Caucasians;

* a notice of intent to seek the death penalty was filed in 6.05 per 100,000 AP where defendants were African-American compared with 0.29 per 100,000 AP for Caucasian defendants;

* only 20% of all murder defendants were African-American, but they comprised 26% of all those charged with special circumstances, 39% of those who received death penalty notices, and 36% were sentenced to death;

* 25% of all murder defendants were Caucasian, but only 18% received special-circumstances charges, only 9% received death penalty notices, and only 4% were sentenced to death;

* when variables such as multiple victims, use of a firearm, and crime location were factored, African-American defendants were 1.71 times more likely to be charged with special circumstances, 9.06 times more likely to receive a death penalty notice, and 14.09 times more likely to receive a death sentence than Caucasian defendants.

In October 2022, the trial court found that Mosby had presented statistical evidence showing “a historical pattern of racism,” but in order to obtain a hearing, Mosby had to show that he himself “was being discriminated against as shown by non-minority defendants who are similarly situated but charged with lesser crimes.” The trial court denied the CRJA motion.

In December 2022, Mosby filed a second “Motion for a Hearing & Relief Pursuant to the Racial Justice Act” (“Second Motion”). In the Second Motion, Mosby incorporated the statistical evidence of his previous motion, arguing it was sufficient to make a prima facie case under § 745. Nevertheless, Mosby also included evidence showing that in Riverside County:

* Caucasian Ronald Ricks drove up to a house, fired several shots at persons standing in front of the house, and killed one. Ricks had numerous prior convictions, including a murder conviction in 2017. The DA did not seek the death penalty against Ricks;

* Caucasian Noy Boukes had several prior convictions, including a conviction for murder in 2016, when he shot and killed a fellow member of a white supremacist group. The DA did not seek the death penalty against Boukes;

* Caucasian Robert Lars Pape killed and burned three people, but the DA did not seek the death penalty;

* Caucasian Jared Bischoff killed a man who flirted with his girlfriend then stabbed his girlfriend to death, yet the DA did not seek the death penalty.

The trial court concluded that Mosby failed to show that factors other than race were why the DA did not seek the death penalty against those other defendants. The trial court denied the Second Motion, and Mosby timely appealed.

The Court of Appeal observed that § 745(a) provides that the “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.” A defendant may establish a CRJA violation during the charging stage of the prosecution if the “defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who have engaged in similar conduct and are similarly situated, and the evidence establishes that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant’s race, ethnicity, or national origin in the county where the convictions were sought or obtained.” § 745(a)(3).

“‘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.” § 745(h)(6).

The Court explained that it did not need to address the open question of whether “statistics alone could meet the prima facie burden” because Mosby presented “factual evidence … to establish similar conduct” in the Second Motion.

“‘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 non-statistical evidence. Statistical significance is a factor the court may consider, but is not necessary to establish a significant difference. In evaluating the totality of the evidence, the court shall consider whether systemic and institutional racial bias, racial profiling, and historical patterns of 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 on race, ethnicity, or national origin.” § 745(h)(1).

“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(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.’” § 745 (c)(1). “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.’” Id. “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 (c)(2).

The Court stated that while the statute is clear as to the evidence that may be presented at an evidentiary hearing, it is not clear what type of evidence is necessary to establish a prima facie case. Nor does the statute’s legislative history provide any insight. However, the Court approvingly cited Finley v. Superior Court, 95 Cal. App. 5th 12 (2023), as instructive in determining the standard for making a prima facie case.

In Finley, an African-American defendant alleged a violation of the CRJA. The Finley Court observed that since there were no cases interpreting § 745, it looked to the prima facie standard in habeas corpus proceedings, viz: “a petitioner should (i) state fully and with particularity the facts on which relief is sought as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts or declarations.” The Finley Court added: “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.” And finally, the Finley Court instructed: “[T]he court should not make credibility determinations at the prima facie stage.”

After discussing Finley, the Court concluded that “Finley’s analysis provides a reasonable standard based on long-standing habeas corpus law.”  

The Court concluded that Mosby had presented sufficient evidence to show more than a mere possibility that § 745(a) had been violated – meaning he had made a prima facie case that warranted an evidentiary hearing. The statistical evidence alone was sufficient to establish a prima facie case, the Court stated. Nevertheless, Mosby also provided supporting factual evidence demonstrating that nonminority, similarly-situated defendants were charged with lesser crimes.

Accordingly, the Court issued a writ of mandate “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.” See: Mosby v. Superior Court, 99 Cal. App. 5th 106 (2024).

 

Editor’s note: Anyone interested in the issue of disparate treatment of defendants under the California Racial Justice Act is encouraged to read the Court’s full opinion, in which the Court makes it clear that there are open questions regarding the Act.

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Mosby v. Superior Court

 

 

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