the conviction violated the constitution or laws of the United States. Estelle v. McGuire, 502 U.S. 62, 68, 116 L. Ed. 2d 385, 112 S. Ct. 475 (1991). Therefore, although the parties argue about whether the above alleged errors violated California law, this court addresses whether the alleged errors present a federal constitutional violation.
Petitioner's first claim is that the prosecutor used three of his first six peremptory challenges to disqualify black
jurors, in violation of defendant's rights under Batson v. Kentucky, above. The trial record indicates that petitioner, his codefendant, the victims, and the percipient witnesses were black and knew one another. The defendants, victims and some of the witnesses were involved in the sales of drugs.
The purposeful exclusion of black persons from participation in juries violates the Equal Protection Clause of the Constitution. Swain v. Alabama, 380 U.S. 202, 203-204, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965). In Batson v. Kentucky, the United States Supreme Court held that the Equal Protection Clause prevents the state from using peremptory challenges to strike jurors solely on the basis of their race, or on the assumption that jurors of the same race as the defendants will be unable to render an impartial decision. 476 U.S. at 89.
Batson held that a defendant may make a prima facie showing of the purposeful exclusion of jurors "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Id. at 94. The Court in Batson held that a defendant may meet his burden by showing that: he is a member of a racial group capable of being singled out for different treatment; the prosecutor exercised peremptory challenges to remove from the venire members of the defendant's race; peremptory challenges are a jury selection practice that permits discrimination; those facts and other relevant circumstances raise an inference that the prosecutor used the peremptory challenges to exclude persons from the jury on account of their race. Id. at 96. Circumstantial evidence may include a pattern of strikes against black jurors. Id. at 97.
The jury venire consisted of forty persons, seven of whom were black. As stated, the prosecutor used three of his first six peremptory challenges to disqualify black jurors. Defendant does not allege that there was a pattern of improper strikes. The pattern in this case was black, white, black, white, white, black, pass, pass.
Petitioner's codefendant then moved to strike the entire jury on the ground that the prosecutor was excusing jurors on the basis of their race. Petitioner joined in the motion.
The trial court then asked the prosecutor if he had any argument as to whether the defendants had made a prima facie showing of wrongful exclusion. The prosecutor noted that there were four black persons remaining on the jury and that he had passed peremptory challenges twice with those persons on the jury. The prosecutor also began to explain his reasons for striking the three black jurors but stated no more than "Ms. Howard indicated she doesn't ....," before the trial judge stopped him. The judge said, "There also appear to be four individuals in the panel, in the audience who may be called, and I have also considered that. I don't think you [defendants] made out the prima facie case yet. I am sensitive to it, though. We'll continue to monitor this. The motion is denied." Ultimately, three black persons served on the jury which convicted petitioner.
The first issue is the standard of this court's review. Petitioner contends that the state trial court in essence made a ruling of law, which is reviewable by this court de novo. The state contends that the decision was one of fact, and that this court must therefore extend deference to the state judge's decision. 28 U.S.C. § 2254(d) requires federal courts to presume the correctness of state court factual findings. Kuhlmann v. Wilson, 477 U.S. 436, 441, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986). Such fact findings will not be set aside unless they lack fair support in the record. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied, 488 U.S. 901, 109 S. Ct. 250, 102 L. Ed. 2d 239 (1988).
The trial judge decided that petitioner had not made a prima facie case. And he therefore did not reach the point of asking the prosecutor to give a neutral explanation for challenging the black jurors, which would be the next step in the Batson analysis. If the trial judge had heard the prosecutor's justification, and then made a determination as to whether that justification rebutted the inference of discrimination raised by a prima facie case, the court's conclusion would have been a determination of fact. See Palmer v. Estelle, 985 F.2d 456, 458-9 (9th Cir.), cert. denied, 113 S. Ct. 3051, 125 L. Ed. 2d 735 (1993); United States v. Chinchilla, 874 F.2d 695, 697-8 (9th Cir. 1989). But the state trial judge did not reach that point.
Was his finding of the absence of a prima facie case a determination of fact reviewable by this court only with great deference, or a finding of law which is to be reviewed de novo? After analyzing the following authorities, this court concludes that it should apply the deferential standard of review to the state court's decision that petitioner had not established a prima facie case.
Petitioner cites two cases which allegedly hold that the determination of a prima facie case is a conclusion of law; however, neither is exactly on point. See Pemberthy v. Beyer, 800 F. Supp. 144, 151 (D.N.J. 1992) (holding that trial court did not apply Batson standard and therefore there was no factual finding to which to defer), reversed, 19 F.3d 857 (3d. Cir.), cert. denied, 115 S. Ct. 439, 130 L. Ed. 2d 350 (1994); Jones v. Jones, 938 F.2d 838, 842-43 (8th Cir. 1991) (holding that because trial court did not set forth an indication of a finding there was no factual finding to which to defer). The state cites a case holding that a trial court's ruling on whether a defendant had made a prima facie Batson case should be reviewed as a finding of fact, because it is based in part on such information as the jurors' general demeanor, alertness, and disposition toward the defendant. See United States v. Moore, 895 F.2d 484, 485-86 (8th Cir. 1990).
Research has not disclosed any cases from this circuit in this procedural posture; that is, where the defendant challenged the propriety of the peremptory challenges, but the state trial court held there was no prima facie showing. However, there is a Ninth Circuit case reviewing a federal trial court's application of the Batson requirements: United States v. Vasquez-Lopez, 22 F.3d 900 (9th Cir.), cert. denied, 115 S. Ct. 239, 130 L. Ed. 2d 162 (1994). There does not appear to be any reason to apply a different standard in this review of a state court's Batson finding. See Jones v. Jones, 938 F.2d at 841-42.
In Vasquez-Lopez, the Ninth Circuit reviewed the decision of a district court that a defendant had failed to make a prima facie case of purposeful discrimination under Batson. The prosecutor had used a peremptory challenge to remove the only black juror on the panel. The defendant argued that there was no reason to believe that the challenged juror would be an unqualified or biased juror. The government began to offer an explanation for the challenge -- the prosecutor's perception that the juror was inattentive and not interested in being a juror -- when the judge told defense counsel to explain what facts supported an inference of intentional discrimination. In other words, the court asked defendant to state his prima facie case. Defendant's counsel stated that the juror was the only black juror, lived in the South Central Los Angeles as did the defendant, and did not answer the voir dire questions in a way that showed she should not be a juror. The district court found no prima facie case.
On appeal, the Ninth Circuit held that "[a] district court's findings regarding purposeful discrimination in the jury selection process will not be disturbed unless clearly erroneous." Id. at 901 (emphasis added). The court explained:
Using peremptory challenges to strike Blacks does not end the inquiry; it is not per se unconstitutional, without more, to strike one or more Blacks from the jury. A district court must consider the relevant circumstances surrounding a peremptory challenge.
Id. at 902 (citation omitted). The court further explained:
We give broad deference to district court judges, who observe the voir dire first hand. Nothing in the record supports a conclusion that the district judge committed clear error when he held that Vasquez-Lopez had failed to establish a prima facie case. The judge appropriately considered the impact of the government's challenge on the composition of the jury. There were other factors. The prosecutor's questions and statements during the selection of the jury failed to support an inference of purposeful discrimination. The government's other peremptory challenges did not suggest a general pattern of discrimination against racial minorities. The challenged prospective juror was not treated differently than other prospective jurors who were similar in relevant aspects except race. The one fact supporting Vasquez-Lopez's Batson claim was the juror's status as the sole Black prospective juror. More was required.