Judge Errs by Not Allowing CRJA Evidentiary Hearing

For a defendant to demonstrate that the prosecution violated the California Racial Justice Act, or CRJA (codified at Penal Code § 745), defendant must first make a prima facie showing that there is a substantial likelihood of a violation. Substantial likelihood means more than a mere possibility, but less than more likely than not.

In making such a prima facie showing under Penal Code § 745(c), defendant must show that he is being charged more harshly because of his race, ethnicity or national origin and second, statistical evidence showing historic patterns of racial inequality in seeking convictions or obtaining convictions of people sharing defendant’s race, ethnicity or national origin within the county where defendant is being charged. In other words, such a showing is akin to the threshold showing in a claim for a violation of equal protection.

Michael Earl Mosby III was charged by the Riverside County District Attorney’s Office 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.

After Mr. Mosby killed Mr. King-Divens, he was convicted in Los Angeles County of two additional murders and attempted murder.

The District Attorney in Riverside County chose to seek the death penalty in Mr. Mosby’s case.

Mr. Mosby is African American.

Based on the District Attorney seeking the death penalty, Mr. Mosby filed a “Motion for a Hearing & Relief Pursuant to the Racial Justice Act.” He argued that the District Attorney’s Office could not seek the death penalty because defendants of other races or ethnicities have engaged in similar conduct and were thus similarly situated, but the death penalty was not sought in such cases in violation of Penal Code § 745(a)(3) of the CRJA.

Mr. Mosby’s motion argued it would be nearly impossible to find comparable cases to show a prima facie case, but included as an exhibit studies by Dr. Nick Peterson of the University of Miami and Dr Frank Baumgartner of the University of North Carolina, Chapel Hill that addressed racial disparities in charging, sentencing and imposition of the death penalty in Riverside County between January 2007 and July 2019. The information included every case in which murder was charged, every case in which a special circumstance was filed, every case in which the District Attorney sought the death penalty and every case in which the judge or jury impost the death penalty. The list included eight hundred cases.

The finding showed that although 20 percent of all murder defendants were African American, they comprised 26 percent of those charged with special circumstances, 39 percent of those who received the death penalty notice and 36 percent of those who received death sentences.

In contrast, 25 percent of all murder defendants were Caucasian, but only 18 percent received special circumstance charges, 9 percent received the death penalty notices and 4 percent received death sentences.

Mr. Mosby also included studies by Marisa Omori, Ph.D., a statistic professor, showing African Americans received the harshest punishment of any racial or ethnic group in Riverside County.

Judge Bernard Schwartz denied the first motion with prejudice. He acknowledged that Mr. Mosby had produced statistics of racial disparity in charging and convicting African Americans, but that Mr. Mosby had failed to show he was being charged more harshly because of his race.

Mr. Mosby then filed a second motion providing additional evidence and argument, but while a decision was pending, the CRJA was amended to provide the two-part prima facie showing requirement stated above.

Judge Schwartz then denied the second motion as well on the same grounds.

On appeal to the Fourth Appellate District in Riverside, the Fourth District reversed and ordered an evidentiary hearing, noting there is nothing in the statute or the legislative history of the CRJA that provides guidance as to what evidence must be presented to determine similar conduct in order to establish a prima facie case.

In the evidentiary hearing, the Fourth District explained, the District Attorney can 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 Mr. Mosby. The District Attorney can also provide any race-neutral reasons that it considered in deciding to charge Mr. Mosby with the death penalty in this case.