Mosby v. Super. Ct. of Riverside Cty.

317 Cal.Rptr.3d 658

Michael Earl MOSBY III, Petitioner,

v.The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent;

The People, Real Party in Interest.

E080924

Court of Appeal, Fourth District, Division 2.

Filed January 25, 2024

As Modified February 9, 2024

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Bernard Schwartz, Judge. Petition granted. (Super.Ct.No. RIF1604905)

Steven L. Harmon, Public Defender, David J. Macher, Linda Gail Moore, Deputy Public Defenders; American Civil Liberties Union Capital Punishment Project, Claudia Van Wyk, Robert Ponce; American Civil Liberties Union Foundation of Southern California, and Summer Lacey, Los Angeles, for Petitioner.

Complex Appellate Litigation Group, Kirsten M. Ault, Anna-Rose Mathieson; Boston University Center for Antiracist Research, Caitlin Glass, Asees Bhasin; Fred T. Korematsu Center for Law and Equality and Robert S. Chang, counsel for Fred T. Korematsu Center for Law and Equality, Boston University Center for Antiracist Research; Five additional centers for Race, Inequality, and the Law; and Nine Individual Professors and Scholars as Amici Curiae on behalf of Petitioner.

Cooley, Randall R. Lee, Los Angeles; Reed Smith, San Diego, Katelyn Kang; Robby L.R. Saldaña and Elizabeth Reinhardt, counsel for Dean Chemerinsky and Law Professors and Legal Scholars as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Michael A. Hestrin, District Attorney, W. Matthew Murray and Kristen Allison, Deputy District Attorneys for Real Party in Interest.

OPINION

MILLER Acting P. J.

Petitioner Michael Earl Mosby III (Petitioner) was charged by the Riverside County District Attorney’s Office (the District Attorney) with the drive-by shooting of Darryl King-Divens along with a gun enhancement that he discharged a firearm causing great bodily injury or death; and three special circumstances, including having committed multiple murders. Subsequent to Petitioner killing King-Divens, Petitioner had been convicted in Los Angeles County of two additional murders and attempted murder. The District Attorney chose to seek the death penalty in Petitioner’s case.

Petitioner filed a "Motion for a Hearing & Relief Pursuant to the Racial Justice Act" (the Motion) claiming the District Attorney’s decision to seek the death penalty violated the California Racial Justice Act of 2020 (CRJA) (Assem. Bill No. 2542 (2019-2020 Reg. Sess.), Stats. 2020, ch. 317, § 1), which added section 745 to the Penal Code.¹ Section 745 was enacted to prohibit the state from seeking or obtaining a criminal conviction on the basis of race. This included that a defendant could not be charged with a more serious offense than defendants of other races who have engaged in similar conduct and were similarly situated. (§ 745, subd. (a)(3).) The trial court denied the first motion without prejudice. Petitioner filed a second motion providing additional evidence and argument. While a decision was pending, the CRJA was amended by the Racial Justice for All Act of 2022 (Amended CRJA) (Assem. Bill No. 256 (2021-2022 Reg. Sess.) (Assem. Bill 256), Stats. 2022, ch. 739, § 2). The trial court ruled that Petitioner had failed to make a prima facie showing of a violation as required under section 745, subdivision (c), and denied an evidentiary hearing.

The trial court denied Petitioner’s motions finding that to make a prima facie case of racial discrimination under the CRJA and Amended CRJA, Petitioner must satisfy the following two-prong test: (1) that Petitioner personally was being charged more harshly than similarly situated defendants of other races or ethnicities; and (2) statistical evidence shows a historic pattern of racial inequality in Riverside County’s capital charging practice. The trial court found that Petitioner had satisfied the second prong, but statistics alone were not enough to establish the first prong, and therefore, he failed to establish a prima facie case entitling Petitioner to an evidentiary hearing under the CRJA and the Amended CRJA.

Petitioner petitions this court for a writ of mandate directing the superior court to (1) vacate its order denying Petitioner’s request for a hearing on his CRJA claim, and (2) enter a new order granting an evidentiary hearing. Amici curiae briefs were submitted in support of Petitioner by (a) the Fred T. Korematsu Center for Law and Equity and several other centers for race, inequality, and the law; and (b) Dean Erwin Chemerinsky and 10 law professors and legal scholars. They contend this court should determine that in order to establish a prima facie case entitling Petitioner to an evidentiary hearing in the trial court, a defendant need only show statistical and aggregate evidence under the CRJA and the Amended CRJA.

We agree in part with the trial court that based on the plain language of section 745, Petitioner was required to present not only statistical evidence of racial disparity in the charging of the death penalty by the District Attorney but also evidence of non-minority defendants who were engaged in similar conduct and were similarly situated but charged with lesser offenses, to establish a prima facie case. The plain language of section 745, subdivision (a)(3), requires evidence of similar conduct and similarly situated defendants, and the legislative history sheds no light on what is required to establish a prima facie case. There is nothing in the statute or the legislative history that provides guidance as to what evidence must be presented to determine similar conduct in order to establish a prima facie case.

However, as we explain post, based on the evidence presented in this case, which included (1) factual examples of nonminority defendants who committed murder but were not charged with the death penalty in cases involving similar conduct and who were similarly situated, e.g. had prior records or committed multiple murders, and (2) statistical evidence that there was a history of racial disparity in charging the death penalty by the District Attorney, met his burden of establishing a prima facie case under section 745, subdivision (a)(3). We need not determine based on the evidence presented whether only statistical evidence of similar conduct and similarly situated defendants would be sufficient to support a prima facie case. As such, the trial court should have ordered an evidentiary hearing at which the District Attorney could produce evidence of the relevant factors that were used to determine the charges against the nonminority defendants who were involved in similar conduct, and who were similarly situated to Petitioner; and to provide any race-neutral reasons that it considered in deciding to charge Petitioner with the death penalty in this case. We grant the writ petition and direct the trial court to conduct an evidentiary hearing.

FACTUAL AND PROCEDURAL HISTORY

A. FACTS, CHARGES AND PRIOR CONVICTIONS

The parties presented the following facts in the Petition and return: On April 8, 2014, at approximately 2:30 p.m., Darryl King-Divens was riding his bicycle on Hemlock Avenue in Riverside. Petitioner drove by King-Divens, shot at him three times, and then drove away. King-Divens was declared deceased at the scene.

The District Attorney contended the following facts in the return as to the Los Angeles murders and attempted murder: Prior to being apprehended, Petitioner was involved in killing two other persons and attempting to kill one person in Los Angeles. On April 17, 2014, at approximately 11:30 p.m., Pedro Rodriguez was shot by Petitioner over a dispute regarding a friend of Petitioner’s. On April 23, 2014, Petitioner killed victim Quezada² by shooting him from Petitioner’s vehicle while Quezada ran down the street. On April 1, 2014, Petitioner attempted to kill Leon Merritt by shooting him while he was seated in his vehicle. Merritt was shot in the arm and leg, but he survived. Petitioner was convicted of both murders and the attempted murder on January 24, 2017.³

Petitioner was charged by the District Attorney in a first amended information with murder (Pen. Code, § 187) with the special allegation that he personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). In addition, he was charged with the special circumstances that he discharged a firearm from a motor vehicle at another person outside the vehicle (§ 190.2, subd. (a)(21)), and two allegations that he had two previous convictions of murder in the first or second degree (§ 190.2, subd. (a)(2)). On March 15, 2019, the District Attorney provided notice to Petitioner that it intended "after review of all facts and circumstances underlying the charges" to seek the death penalty in the case.

B. FIRST MOTION FOR RELIEF UNDER CRJA

Petitioner filed the Motion on July 26, 2022, seeking an evidentiary hearing pursuant to the CRJA. Petitioner contended that denial of the Motion would violate Petitioner’s rights guaranteed by section 745, his right to equal protection of the law, and cause a miscarriage of justice. Petitioner provided an extensive history of racism in California. Petitioner provided statistics regarding the charging of African-American defendants in Riverside County from January 2016 through De- cember 2021,⁴ 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. African-American defendants are charged with special circumstances in their murder cases at a rate of 64.86 per 100,000 of the adult population; Caucasians are charged at a rate of 5.00 per 100,000 of the adult population; and Hispanics are charged at a rate of 16.84 per 100,000 of the adult population. In addition, Riverside County filed a notice of intent to seek the death penalty against 22 defendants between 2016 through 2021. Per 100,000 of...