Appeal from the United States District Court for the Central District of California. Dale S. Fischer, District Judge, Presiding. D.C. No. CV-03-04067-DSF.
The opinion of the court was delivered by: Gould, Circuit Judge
Argued and Submitted August 31, 2009 -- Pasadena, California
Before: Ronald M. Gould and Richard C. Tallman, Circuit Judges, and Owen M. Panner, District Judge.*fn1
We consider the significance of a prosecutor's stated inability to recall the reason for exercising a peremptory strike to remove an African-American potential-juror, pursuant to the second step of the Batson inquiry. We hold that in view of the relatively low number of peremptory challenges that the prosecutor exercised against African-American jurors, the prose-cutor's ability to justify her other peremptory challenges with specificity and to the state court trial judge's satisfaction, as well as the fact that two African-American jurors remained on the jury and a third was a prospective juror, we cannot say that the California Court of Appeal's denial of Gonzalez's Batson claim was contrary to Supreme Court precedent or an objectively unreasonable application of such precedents. Therefore, the district court properly denied habeas corpus relief in this case governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and we affirm.
Gonzalez was charged with possession of cocaine base for sale under California Health & Safety Code Section 11351.5. He was tried to a jury in Los Angeles County Superior Court. Jury selection began on Thursday afternoon and ended on Friday morning. During jury selection, the prosecution exercised four of its ten peremptory strikes. Three of these strikes excused African-American jurors. After the third African-American juror was excused, Gonzalez-who is also African-American-made a Wheeler motion,*fn2 alleging that the strikes were motivated by Gonzalez's race.
The sequence was as follows: the prosecution's first peremptory strike excused an African-American juror. Gonzalez then exercised his first peremptory strike, at which point the prosecution accepted the panel. Gonzalez next exercised his second peremptory strike, and the prosecution exercised its second peremptory strike to excuse a Caucasian juror. Gonzalez exercised his third strike, and the prosecution again accepted the panel. The trial court recessed for the day.
The next morning, the jury box contained seven additional prospective jurors. The prosecution exercised its third peremptory strike to excuse an African-American juror. Gonzalez accepted the panel. The prosecution then exercised its fourth peremptory strike to excuse another African-American juror, and Gonzalez made his Wheeler motion. The state trial court agreed with Gonzalez that the strikes created a "classical" inference of racial bias, and asked that the prosecution explain its reasoning.
The prosecution justified excusing the second African-American juror on the grounds that "yesterday [the juror] had been very evasive when [the trial court] asked her specifically about the suspension, the license suspension." In addition, the prosecution observed that the juror had been accepted as part of the panel several times on Thursday, but that the composition of the jury had changed overnight.
The prosecution justified excusing the third African-American juror on the grounds that "[the trial court] asked [the juror] several times [on Friday] about would [he] require the People to prove it beyond all doubt? And even though [the trial court] kept explaining it to [the juror], he kept answering he expects the People to prove it beyond all doubt, was his repetitive answer."
The prosecution could not recall its reason for excusing the first African-American juror.
The trial judge stated that in light of the prosecution's explanation for excusing two of the jurors on Friday and the fact that the prosecution accepted the panel twice on Thursday, the court was satisfied that no racial prejudice was involved. Defense counsel objected that the prosecutor had not provided an explanation for striking the first juror. The trial court again stated that it was satisfied with the prosecution's overall explanation, noting that two African-American jurors were currently sitting on the panel, a third ...