Burden of proof for Evidentiary Hearing under the Racial Justice Act met through statistical evidence of past discrimination

Michael Earl MOSBY III, Petitioner, v.The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent;The People, Real Party in Interest.

2024 WL 278040 (Cal.App. 4 Dist.)

Summary: Mosby, an African-American defendant who was charged with murder with special circumstances and the prosecutor sought the death penalty,  Mosby petitioned for a writ of mandate directing the Superior Court, Riverside to hold an evidentiary hearing and to vacate its order denying a hearing on, his claim under the Racial Justice Actfor racial discrimination in the charges brought against him.
The Court of Appeal held that:

1. to make the prima facie showing required for an evidentiary hearing on a claim under the Racial Justice Act, the defendant must establish that they were similarly situated to, and engaged in conduct similar to that of, non-minority defendants who were charged with lesser crimes, and that there was racial disparity in the prosecution’s charging system; and
2. defendant met his prima facie burden, and was entitled to a hearing, by presenting both statistical evidence of past discrimination by the prosecutor’s office in seeking the death penalty and the facts of several cases that were similar to defendant’s case but in which the death penalty was not sought for non-minority defendants.                                         Petition granted; writ of mandate issued.

Petition for Evidentiary Hearing under CRJA

Mosby filed a Motion on July 26, 2022, seeking an evidentiary hearing pursuant to the CRJA. Mosby provided an extensive history of racism in California and  provided statistics regarding the charging of African-American defendants in Riverside County from January 2016 through December 2021, 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.

Mosby argued that he had a low burden to make a prima facie showing under section 745. All of the studies he 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. Mosby argued that he satisfied his burden under section 745, subdivision (c).

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. The trial court held that Mosby  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.”

Mosby contended  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). The plain language supports only aggregate and statistical evidence is required to make a prima facie case.

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).) It is  not clear what type of evidence is necessary to prove a prima facie case of a violation of section 745, subdivision (a)(3). The plain language of section 745, subdivision (a)(3), clearly provides that in order to show a violation, a defendant must show that he was charged with a more serious offense than defendants of other races “who have engaged in similar conduct and are similarly situated,” and “that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant’s race, ethnicity, or national origin in the county where the convictions were sought or obtained.” As stated, “ ‘More frequently sought or obtained’ ” “means that the totality of the evidence demonstrates a significant difference in seeking … convictions … comparing individuals who have engaged in similar conduct and are similarly situated, and the prosecution cannot establish race-neutral reasons for the disparity.” 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.

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 non-minority defendants who were charged with lesser crimes, and that there was racial disparity in the District Attorney’s capital charging system. 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, the Court  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.

Burden Of Showing A Prima Facie Case

The trial court found  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.

The  statistical evidence of racial disparity presented in the studies was sufficient to show a prima facie case of racial disparity in the charging of the death penalty in Riverside County. Mosby provided factual evidence to show non-minority defendants in Riverside County were charged with lesser crimes despite being engaged in similar conduct as Petitioner, e.g. drive-by shootings or murders with prior convictions of murder. The trial court found that Mosby  had failed to provide cases that were similarly situated based on other factors in the cases involving non-minority defendants. It concluded there could be other reasons that the death penalty may not have been sought in those cases. The trial court  placed the burden on Mosby at the prima facie stage to prove that the factors relevant in charging the non-minority defendants were similar to his case, and arguably, prove there were no race-neutral reasons for the differences in the charges.

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, is sufficient to show there was more than a mere possibility that a violation of section 745, subdivision (a), has occurred.  This evidence meets 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.

The Court did not establish a bright-line rule of what constitutes sufficient evidence of “similar conduct” in all cases. Mosby,  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 non-minority defendants who were not charged with the death penalty. Mosby presented evidence that the District Attorney’s capital system more frequently sought convictions for more serious offenses against African-American defendants. This was enough to provide more than a “mere possibility” that a violation of section 745, subdivision (a)(3), had occurred. The trial court erred by finding Mosby  did not establish a prima facie showing of a violation. Once he  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 Mosby , 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: A writ of mandate issued 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.

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