FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner, proceeding through counsel, with an amended application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1998 conviction on one count of murder, in violation of Cal. Penal Code § 187(a)*fn1 , with the special circumstance that the murder was committed "by means of discharging a firearm from a motor vehicle, intentionally at another person outside the vehicle with the intent to inflict death," § 190.2(a)(21), and two counts of attempted murder, in violation of §§ 664, 187(a). Petitioner is presently serving a sentence of life imprisonment without the possibility of parole as to the murder conviction, and an aggregate determinate term of 10 years and eight months for his convictions on the attempted murder charges.
This action is before the undersigned on remand from the Ninth Circuit Court of Appeals following this court's March 17, 2008 denial of petitioner's writ of habeas corpus. On remand, the issue is whether the state trial prosecutor exercised a peremptory challenge to exclude an African-American prospective juror on account of her race in violation of the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79 (1986). The court is directed to determine whether race played "a substantial part" in the prosecutor's decision to exclude the prospective juror. See Crittenden v. Ayers, 624 F.3d 943 (9th Cir. 2010).
On August 15, 1996, the Sacramento County District Attorney's Office filed a complaint charging petitioner with one count of murder, in violation of § 187(a), with a special circumstance that the murder had been perpetrated by discharging a firearm from a motor vehicle at a person outside said motor vehicle, and two counts of attempted murder, in violation of §§ 187(a) and 664.*fn2 Clerk's Transcript ("CT") I at 18-20. As to all three charges, it was alleged pursuant to § 12022.5(a) that petitioner had personally used a firearm. Id.
Petitioner was tried twice on these charges. The first trial resulted in a hung jury after two African American jurors voted not guilty. See CT II at 310-12; Excerpts of Record*fn3 ("ER") at 325-27. On retrial, jury selection commenced on July 7, 1998 with the distribution of juror questionnaires. See CT II at 313. On July 8, 1998, voir dire began, and on July 9, 1998, Detria Thompson ("Thompson"), an African-American woman, was called as a prospective juror. ER at 104, 192 and 245.
During voir dire, Thompson was initially questioned briefly by defense counsel.
ER at 245-46. She was then questioned by the prosecutor, who began by referring to a notation on Thompson's juror questionnaire indicating that she wished to discuss a matter privately. Id. at 246. The trial court thus excused the jury for a break and, outside of the presence of the other prospective jurors, Thompson shared information regarding a petty theft conviction while she was a student at California State University, Los Angeles. See id. at 246-48. Thompson stated that, while attending the university, she was caught shoplifting some items from a campus bookstore and charged with petty theft, to which she pled guilty and received summary probation. Id. When asked whether she felt she was treated fairly, Thompson answered affirmatively and noted that the incident did not have an effect on her education. Id. at 247. Following this discussion, the other prospective jurors were allowed to return to the courtroom. Id. at 248.
Back in the presence of the other jurors, the prosecutor questioned Thompson about certain responses that she provided on the juror questionnaire, including one response concerning her prior experience with police officers:
[PROSECUTOR]: Miss Thompson, you mentioned in your questionnaire that you had had a particularly bad experience with a law enforcement officer. A motorcycle officer who pulled you over for what you felt was no reason. [THOMPSON]: Yes. [PROSECUTOR]: When did that occur? [THOMPSON]: There were actually two cops. I didn't indicate that. It happened probably four years ago. Four or five years ago. [PROSECUTOR]: Is that in Sacramento? [THOMPSON]: It was in Long Beach. [PROSECUTOR]: Both times? [THOMPSON]: Umm, I believe I only mentioned one incident. That was in Long Beach.
[PROSECUTOR]: Okay. So there were two times you felt you were pulled over for no reason. [THOMPSON]: Once. I'm referring to what happened in Long Beach. I don't think I said more than once. [PROSECUTOR]: Okay. What was the other bad experience that you felt you had? [THOMPSON]: I said one bad experience. [PROSECUTOR]: Oh, I'm sorry. Okay.
Next, the prosecutor asked Thompson what she meant when she indicated that she disagreed strongly with the proposition "If the prosecution brings someone to trial, that person is probably guilty." ER at 249. Thompson responded, "I mean that I wouldn't assume that because someone is brought forward by the prosecution that they're guilty." Id.
Finally, the prosecutor asked Thompson about her opinion that the criminal justice system treats some people unfairly:
[PROSECUTOR]: . . . [T]here's some questions about race, and you felt that, umm, criminal justice system intentionally or unintentionally treats people unfairly because of their race or their ethnic background. [THOMPSON]: That can happen, yes. [PROSECUTOR]: And that you felt that specifically happened in a couple of cases and you mentioned Mr. Pratt, and there's another name I'm not familiar with that case. Who is that? [THOMPSON]: William Mobia Jamal*fn4
[PROSECUTOR]: Can you briefly explain what that case was about? [THOMPSON]: What I read about the case, I believe he is or was in Philadelphia and he was a journalist and he was accused of murdering a police officer. And the information that I read seemed to indicate that he did not receive a fair trial. And there has been some media coverage on that case. He's been appealing his case for a number of years now.
[PROSECUTOR]: And [ ] your belief about that was based on the account that you had read? [THOMPSON]: A few accounts, yes. [PROSECUTOR]: About Mr. Pratt? What is that based on? [THOMPSON]: What is the case based on? [PROSECUTOR]: No, I'm familiar with that one. Why don't you feel he received a fair trial? [THOMPSON]: I believe he was acquitted after 30 years, or something like that. 25 to 30 years, that he had been convicted and he served time in prison for a long period of time, and eventually he was acquitted. [PROSECUTOR]: Was he acquitted, or did he get a new trial because of it, or do you know? [THOMPSON]: I believe it was a new trial. [PROSECUTOR]: Do you know if that had anything to do with racial or ethnic issues? [THOMPSON]: Probably. Partially, he was a Black Panther, and I think that probably had something to do with it. And I'm sure there were politics involved as well.
Thompson was ultimately excused when the prosecutor exercised a peremptory strike as to her. ER at 258.
After Thompson was stricken, petitioner filed a motion to dismiss the entire jury panel pursuant to People v. Wheeler, 22 Cal.3d 258 (Cal. 1978).*fn5 ER at 324. On July 16, 1998, the trial court held a hearing on the motion:
THE COURT: Okay. You can, umm, if I understand your motion, you are making the motion to dismiss the entire panel by reason of the prosecutor's use of peremptory challenges to strike jurors on the ground of group bias alone based on the People versus Wheeler; is that correct? [DEFENSE COUNSEL]: That is one motion, yes.
THE COURT: Since it's the burden of the moving party to establish a prima facie case of discrimination as well as make the record, I'll give you the opportunity to proceed first, and you must show from all the circumstances in this case a strong likelihood that the persons challenged were challenged due to group classifications rather than specific bias. First, you must show that the jurors struck are members of some identifiable group or cognizant group [--] you indicated they were black or African American, and therefore [--] that is I'd like to ask you, Mr. Gold [the prosecutor], do you wish to stipulate that for the purposes of the representative cross section rule that the jurors struck are all members of the same cognizable group? [PROSECUTOR]: Your Honor, are you saying jurors plural, or singular.
THE COURT: Well, I think similar in regards to the actual jurors struck. [PROSECUTOR]: I would agree that the one juror in question was African American.
THE COURT: Okay. [Defense counsel.] [DEFENSE COUNSEL]: Thank you. I do not have her name, however I believe she was juror number -- well, it was Diedra [sic] Thompson, I believe was her name. She's African American. Female who was struck by the District Attorney. This is interesting in this case, because I believe that it was a use of the peremptory challenge, because she was African American. Number one, in the first trial of [petitioner] it was a hung jury. Initially it was hung 10 to two, my understanding, and eventually was hung 11 to one. The two jurors who voted for not guilty were African American. One of those jurors was removed during the deliberation process, leaving one African American juror. That juror held out and voted not guilty throughout.
In this case, I think that there was an intention to exclude African American jurors for that same reason. The threat or the concern that they might vote not guilty or have a reasonable doubt. In this particular instance, while Miss Thompson had a prior petty theft, some 15 years or more ago, which incident that occurred at her school, she was at the university, apparently she stole some books or something to that effect. She was placed on probation, she acknowledged that nothing was done to her in the process in terms of being treated wrongfully. She admitted wrongdoing, she was on probation, she cleared probation and she eventually graduated from that university. I don't think that there was anything about her, particularly, that would otherwise cause the prosecutor to use his peremptory challenge. I think that, um, given the nature of this case, the persons who are involved in this case and even given the fact that out of 70 people that we had to select from, there were only three African Americans out of the whole pool. So the -- it was very easy to use the peremptory challenge in that manner, and that is what was done. I don't think that there was any legitimate reason to excuse the juror, and the only reason why it was done was because of her race. THE COURT: [Prosecutor], I'll give you the opportunity if you wish to state anything. I'm not requiring. [PROSECUTOR]: Okay. Umm, I would state my reasons. I would also ask the Court, though, to perhaps make a ruling for the record whether prima faci[e] case has been made. I understand the law is if you rule there has not been a prima facie, I don't have to give reasons.
THE COURT: That's why I am not requiring you. I do not believe a prima facie case has been met, but I will give you an opportunity to make a record if you desire. [PROSECUTOR]: I will take the opportunity, your Honor. I would note, however, a couple of factors. I think [defense counsel] said it was a pool of 70. I believe it was a pool of 65. I don't agree there was just three African Americans. I can say there appeared to be three people that were clearly African American, but I don't know if there's mixtures or what the other makeup of all the other people were. And I don't think that's on the record. So I don't agree with that. I would mention that the last case has absolutely nothing to do with my choices in this case, or any of the result in that, I would mention that Miss Thompson I had passed several times before she arrived. When she arrived, I believe she was number 34. I found it unusual that her petty theft, one, because she had discussed it in private. If it was a minor incident, I believe a lot of people talk candidly about problems in their past. DUIs, things like that. She felt she wanted to talk about it privately. That concerned me some. What she also indicated [was] that it occurred when I believe she was 21 years old. She said it happened in 1981. She was -- she's 38 years old. I find it unusual that you are stealing something when you are 21 years of ago. To me, that's a problem. And it also goes to the issue of honesty. It's not, say, a DUI that may have unrelated credibility problems. Honesty is something that's important, and she had stolen something in the past. That concerned me.
She had indicated that she had had a bad experience with an officer. It was unclear where in her questionnaire she mentioned she had a bad experience. When I asked her in court about it, it was unclear whether it was one or two, and I felt the interaction between questions that I asked her, there was some tension that I was feeling from her, just questioning her.
She mentioned that as to questions 38 and 39, which are purposefully worded, I guess, in a[n] ambiguous way to get certain response, she indicated that the People bring someone to trial, question asked are they probably guilty. She strongly disagreed with that. I have a problem with that. I can understand someone saying I disagree with it somewhat. When you strongly disagree, that shows a specific bias. You may not trust law enforcement or you may not trust the prosecution and feel they are simply bringing people to trial that they don't believe are guilty or have no evidence. I'm concerned about that.
She also indicated that she strongly agrees that it is better to let guilty people go free, rather than risking an innocent person. There are other responses she could have checked. To me that shows specific bias. That concerns me.
She had indicated that she felt the criminal justice system specifically treats people unfairly. That's a specific bias that she has. And that was in question 46. I'm concerned about any person that believes the system treats people unfairly. I'm concerned about having those people participate as a juror in a criminal justice system from the People's point of view.
She also indicated that this unfairness was clearly documented or documented in her response, and that's as to question 46.
She is a single person who has never been married. That is a minor point, but I believe in a group setting people are going to have to work together. People are going to have to be tolerant of each other's views. And I generally like people who are married, living with people, people who are in a relationship where there is communication going on, group interaction. And I sometimes have a problem with single people who have never . . . been married. They may be a very strongly opinionated person that may not work well in a group setting.
I also felt, based on the process that both of the lawyers agreed to, that the Court had provided us with the random list, so we had the opportunity to know who was coming up next in order, and we had the questionnaires that we had read, and I believe that there were other jurors that were better suited to hear this case that were after Miss Thompson, that I felt a lot more comfortable with that were better jurors in my opinion than Miss Thompson. So for all of those reasons, she was excused.
The trial court eventually denied petitioner's Wheeler motion. ER at 330-32. Thereafter, following a jury trial, petitioner was convicted on all charges on August 3, 1998. CT 441-46. The jury also found the arming allegations and the special circumstance allegation to be true. Id. The court initially sentenced petitioner on October 16, 1998 to three consecutive life terms plus three years: in count one, life without the possibility of parole, plus a one-year enhancement; in count two, life with the possibility of parole, plus a one-year enhancement; and in count three, life with the possibility of parole, plus a one-year enhancement. Following remand by the California Court of Appeal for the Third Appellate District, the court re-sentenced petitioner on August 2, 2002 on counts two and three to a cumulative total of 10 years and eight months, consecutive to the term of life without parole plus one year for count one.
RELEVANT PROCEDURAL BACKGROUND
On petitioner's direct appeal, the California Court of Appeal addressed petitioner's Batson claim as follows:
Citing People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), defense counsel challenged the prosecutor's use of a peremptory challenge to remove the last African-American from the jury. [Petitioner] contends the trial court used the wrong test in ruling the defense counsel failed to establish a prima facie case of discrimination. . . . We conclude there was no error[.]
During jury selection, Prospective Juror Thompson revealed to the court
in private that she had received summary probation for shoplifting while a college student in 1981. When the other prospective jurors returned to the courtroom, she described a "bad experience" four years before with two law enforcement officers she claimed pulled her over for "no reason." Thompson also noted two cases where she believed defendants had been treated unfairly because of their race. These included the Pratt Black Panthers case and the William Mobia Jamal capital case. The prosecutor exercised a peremptory challenge against Ms. Thompson.
At the hearing on [petitioner's] Wheeler motion, the court explained to defense counsel, "Since it's the burden of the moving party to establish a prima facie case of discrimination as well as make the record, I'll give you the opportunity to proceed first, and you must show from all the circumstances in this case a strong likelihood that the persons challenged were challenged due to group classification rather than specific bias."
Thereafter, defense counsel argued the prosecutor excused Thompson because she was African-American. He noted that two African-American jurors had voted not guilty in [petitioner's] first trial resulting in a hung jury.
The court found that [petitioner] failed to establish a prima facie case under Wheeler. It gave the prosecutor the opportunity to make a record, although the prosecutor was not required to do so in light of the court's findings. The prosecutor explained he was concerned about several matters revealed during voir dire: (1) Thompson's prior petty theft; (2) her desire to discuss the incident only in private; (3) the age at which she committed the petty theft; (4) her bad experience with law enforcement; (5) her response to the jury questionnaire, including the view that the criminal justice system treated some people unfairly; and (6) her perceived unwillingness to work together with other jurors.
The court again concluded [petitioner] failed to sustain his burden to establish a prima ...