Bennett v. Lynch

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 JABRIE BENNETT, Case No. 20-cv-05675-WHO 8 Plaintiff, ORDER DENYING WRIT OF HABEAS v. [9] Re: Dkt. No. 1 10 JEFF LYNCH, Defendant. [12] 13 Petitioner Jabrie Bennett seeks federal habeas relief from his state convictions for second14 degree murder and other crimes on the grounds that the prosecutor violated the Equal Protection 15 Clause by striking a potential juror because he was Black, in violation of Batson v. Kentucky, 476 16 U.S. 79 (1986). Bennett’s claim lacks merit and his petition is DENIED. 17 BACKGROUND 18 In 2014, an Alameda County jury convicted Bennett of second-degree murder, attempted 19 murder, and assault with a semiautomatic weapon, along with firearm enhancements. Pet. [Dkt. 20 No. 1] 1:15-24. He was sentenced to 72 years to life in state prison. Id. at 2:7-8. The convictions 21 stemmed from two shootings in January 2013: one in Oakland, California, that wounded a high 22 school student and another two days later in San Leandro, California, that killed a 50-year-old man 23 waiting for a bus. Answer [Dkt. No. 13] 2:1-3:21; see also Answer, Ex. H (“State Appellate Op.”) 24 at 2-4. Because Bennett’s appeal focuses on a Batson challenge made at his trial, rather than the 25 facts underlying his convictions, I focus my attention on the procedural history. 26 During jury selection, the prosecutor used peremptory challenges to strike four Black [27] 1 jurors. Pet. at 7:22-26 (citing Reporter’s Transcript (“RT”) V at 827)).1 One Black juror was 2 empaneled and another was an alternate. Id. at 7:24-25 (citing RT V at 827, 853). Bennett’s 3 counsel made a Batson motion to each of the four peremptory challenges. Id. at 7:26-27 (citing 4 ART II at 313, 337, 402; ART III at 462). Only one, involving prospective juror Domanique J., is 5 at issue in the present petition. See Pet. at 8:7-20. 6 The California Court of Appeal described the Batson challenge involving Domanique J. as 7 follows: [8] On his jury questionnaire, Domanique J.—a 22-year-old Black man 9 who had recently moved to California—indicated that he held a bachelor of fine arts degree in dance and had attended a high school 10 for the performing arts in New York City. Domanique J.’s questionnaire also disclosed that he had an aunt who had been arrested 11 for “drug trafficking”; that he had visited her in jail; and that he, himself, had been arrested for public intoxication. Domanique J. was [12] uninterested in reading material or video entertainment involving: 13 “Criminal, court, Law & Order, News.” And he stated that: “The Criminal Justice System works for the most part but there are cases 14 where I feel the system has not worked.” 15 During voir dire, the prosecutor asked Domanique J. more about his lack of interest in criminal justice-related entertainment, which [16] elicited the following response: “I just, I don't find crime or anything 17 dealing with the court interesting. I mean, if it was up to me, I would rather just not be here.” With respect to his arrest for public 18 intoxication, Domanique J. elaborated: “At the time, like the arrest, I guess you would say I didn't feel like I was treated fairly, but I 19 definitely got off very easy. So—.” When asked about his aunt’s arrest, Domanique J. stated that she was convicted of trafficking drugs [20] (marijuana) and spent four or five years in jail; he was close to her; 21 he “was living there at the time,” although he did not go to court with her; he visited her in jail three times; and, when she was released 22 earlier that year, he spoke with her about her case. The prosecutor challenged Domanique J. immediately after he was questioned. [23] Later, when asked to explain his reasons for the challenge, the [24] prosecutor highlighted the fact that Domanique J. questioned 25 “whether the criminal justice system works for the most part.” The [26] 1 Citations to “RT” and “ART” refer to the Reporter’s Transcript and Augmented Reporter’s 27 Transcript, respectively, of Bennett’s trial, and can be found at Docket No. 14 as Exhibits D and E. prosecutor also noted that “at a time when he was living with his [1] mother, she was arrested and charged and convicted of drug 2 trafficking.” The prosecutor felt that “he was living with her at the time, and then the fact that he has visited her in prison, certainly 3 suggests someone who might be prone to sympathy at the prospect of somebody going to prison for a crime.” [4] State Appellate Op. at 17-18. The trial court concluded that Domanique J., like the other [5] challenged jurors, were challenged for race-neutral reasons and denied Bennett’s Batson motions. [6] Pet. at 8:2-6 (citing RT V at 881). [7] Bennett appealed to the California Court of Appeal, arguing in part that the prosecutor [8] improperly used three of his peremptory challenges to excuse potential jurors, including [9] Domanique J., based on their race. State Appellate Op. at 2. The Court of Appeal determined that [10] there was no error and upheld Bennett’s conviction. See id. With respect to the Batson challenge [11] now at issue, the court found: [12] In ruling on the motions before it, the trial court made certain findings [13] applicable to all of the jurors in question. Preliminarily, it found that 14 appellants had made out a prima facie case that the prosecutor had improperly exercised peremptory challenges based on race. Next, the 15 trial judge detailed his own experiences as a lawyer and bench officer in the community, describing a career in Alameda County which 16 included being a superior court judge for almost five years; a municipal court judge for over 27 years; and, before that, a lawyer [17] with a criminal practice. Finally, with respect to numbers, one Black 18 prospective juror was successfully challenged for cause by the defense, four Black jurors were peremptorily challenged by the 19 prosecutor, one Black juror (Juror No. 2) was seated on the jury, and another Black juror was seated as an alternate. The trial court noted 20 that the prosecutor had ample opportunity to challenge both Juror No. 2 and the Black alternate juror and declined to do so, a factor he found [21] “powerful evidence” supporting the credibility of the prosecutor’s 22 proffered reasons for excusing jurors. 23 * * * 24 [T]he trial court found that the prosecutor’s challenge based on Domanique J.’s stated belief that the criminal justice system was [25] flawed was legitimate and race-neutral. As for the prosecutor’s other 26 articulated reason for challenging Domanique J., the trial court opined, correctly, that “caselaw has repeatedly held that negative 27 experience by the juror or a close relative of the juror [with the 44 Cal.4th 636, 655, fn.3 , [citing cases]; Wheeler, 22 Cal.3d at p. 277, [1] fn. 18 [stating that a “personal experience” with conviction and 2 incarceration “suffered either by the juror or a close relative, has often been deemed to give rise to a significant potential for bias against the 3 prosecution”].) The court noted that Domanique J. “indicated that his mother was arrested for drug trafficking, that he visited her in prison. 4 He was living with her when she was convicted of this crime.” Thereafter, the court went even further than the prosecutor on this [5] point, stressing Domanique J.’s own experience with the criminal 6 justice system: “[H]e, himself, had a contact with the criminal justice system, that he had a negative experience with that. He felt that he 7 was not treated fairly, although he seems to admit and acknowledge that what he was arrested for was public intoxication, and he served a 8 very lenient sentence, even by his own standards, which he admitted. But, nevertheless, he harbors the feeling which he expressed here in [9] court, that his experience was a negative one. He doesn't feel that he 10 was fairly treated by the criminal justice system.” 11 On appeal, appellants make much of the fact that both the court and the prosecutor got certain facts wrong during discussion of 12 the Batson/Wheeler motion involving Domanique J. Specifically, appellants point out that was Domanique J.’s aunt, not his mother, [13] who was arrested; claim that he was not living with his aunt at the 14 time; and stress that, contrary to the prosecutor’s justification, Domanique stated that the criminal justice system does “work for the 15 most part.” However, “[w]hile a prosecutor's credibility may be questioned if the prosecutor ‘mischaracterizes a juror’s testimony in 16 a manner completely contrary to the juror’s stated beliefs,’ a prosecutor’s ‘mistake in good faith, such as an innocent transposition [17] of juror information,’ does not support a finding that the prosecutor is 18 not credible.” (Sifuentes v. Brazelton (9th Cir. 2016) 815 F.3d 490, 512 ; see also People v. O'Malley (2016) 62 Cal.4th 944 , 19 980 [“prosecutor’s mistaken reference . . . alone does not establish that the prosecutor’s stated reasons were pretexts for 20 discrimination”]; People v. Williams (2013) 56 Cal.4th 630, 661 [no Batson/Wheeler violation when the prosecutor excused a [21] prospective juror for a factually erroneous but race-neutral 22 reason]; People v. Williams (1997) 16 Cal.4th 153, 189 [“a genuine ‘mistake’ is a race-neutral reason”].) [23] Here, while misstatements were certainly made, we do not find them [24] significant. As such, they do not supply a basis for finding the 25 prosecutor not credible. For example, it is true that Domanique J. did not, as the prosecutor stated, question “whether the criminal justice 26 system works for the most part.” Rather, he said: “The Criminal Justice System works for the most part but there are cases where I feel 27 the system has not worked.” Thus, while he misspoke, the prosecutor this proffered justification (flawed criminal justice system) to be [1] credible and race-neutral. Similarly, with respect to the incarcerated 2 relative, it was clearly Domanique J.’s aunt rather than his mother. Moreover, when asked whether they were close, Domanique 3 J. stated: “Yes. I was living there at the time, I didn't go [to] the court, but I was around her, the relatives when it was going on.” While this 4 was perhaps ambiguous as to whether the prospective juror lived in the same house or just in the same geographic area as his aunt, at [5] bottom, the record supports that Domanique J. had a close relative; 6 that he was around her while she went through the court process; that she was incarcerated for a significant period on drug trafficking 7 charges; and that he visited her multiple times during her incarceration. The trial court found this a valid and race-neutral 8 reason to challenge Domanique J. and we see no error in this regard, despite the minor misstatements that were made. [9] 10 Finally, we reject again appellants’ attempt to marshal comparable jurors, here arguably to show that they had experiences with 11 incarceration similar to Domanique J., but were not challenged by the prosecutor. Juror No. 3's questionnaire disclosed that, 30 years ago, 12 the juror had visited an inmate at Vacaville prison. The individual apparently was not a relative or close friend. Juror No. 12 indicated [13] that “years ago” she picked up her brother at the Santa Rita Jail after 14 he had been arrested on a domestic violence charge for which he was never prosecuted. And Juror No. 12 stated that he worked as a 15 counselor at a correctional facility for six months during graduate school. Obviously, none of these experiences compares with visiting 16 a close relative convicted of a serious crime on multiple occasions while she was incarcerated. Appellants also suggest the same [17] comparable jurors on the issue of the fairness of the criminal justice 18 system that they advanced in their challenge to Pierre M. But this attempt fails here for the same reason: None of those jurors had any 19 other serious disqualifying issue, such as Domanique J.’s experiences regarding his aunt's incarceration. . . . Thus, they were 20 not similarly situated. [21] In sum, the trial court here considered at length the prosecutor’s 22 reasons for challenging each of the three prospective jurors discussed above, concluded that all of the proffered reasons were valid and race23 neutral, and expressly found the prosecutor credible and his justifications genuine. We see no Batson/Wheeler error on this [24] record, and certainly no abuse of discretion. 25 Id. at 10, 18-21.2 [27] 2 The appellate court’s references to the “appellants” include Bennett’s co-defendant, Andre 1 In so deciding, the Court of Appeal rebuffed Bennett’s argument that de novo review was 2 warranted. See id. at 11 n.6. As it explained: [3] In reaching this conclusion, we reject appellants’ suggestion that de 4 novo review is appropriate on this record because the trial court applied an improper legal standard in denying their Batson/Wheeler 5 claims. Specifically, appellants argue that the trial court incorrectly relied on the fact that the prosecutor left one Black juror on the jury 6 to find no evidence of racial discrimination in this case. It is true that the fact that the prosecutor “passed” or accepted a jury containing a [7] Black juror is not the end of our inquiry. (People v. Snow (1987) 44 8 Cal.3d 216 , 225 (Snow).) Such a rule “would provide an easy means of justifying a pattern of unlawful discrimination which stops only 9 slightly short of total exclusion.” (Ibid.) However, our high court has repeatedly held that “[w]hile the fact that the jury included members 10 of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an [11] appropriate factor for the trial judge to consider.” (People v. Turner 12 (1994) 8 Cal.4th 137, 168 ; see also People v. Gutierrez (2017) 2 Cal.5th 1150, 1170-1171 ; People v. Blacksher (2011) 52 Cal.4th 769 , 13 802; Lenix, supra, 44 Cal.4th at p. 629 ; People v. Cornwell (2005) 37 Cal.4th 50, 70 , disapproved on other grounds as stated in People v. 14 Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ; Snow, at p. 225.) That is exactly what the trial court did here. Among many other factors, it [15] concluded that the retention of one Black juror and one Black 16 alternate supported a finding that the prosecutor’s race-neutral reasons for his peremptory challenges were credible. We see no legal 17 error. However, even were we to conclude that the trial court improperly inflated the importance of this factor by finding it 18 “powerful evidence” of the prosecutor’s lack of discriminatory intent—and even were we to assume that this amounted to legal error [19] sufficient to vitiate our otherwise deferential review of the trial court’s 20 Batson/Wheeler conclusions—we would reach the same result under a de novo standard of review. [21] Id. at 11 n.6. [22] On May 15, 2019, the California Supreme Court denied Bennett’s petition for review. Pet. [23] at 2:9-11. Having exhausted his remedies in state court, Bennett timely filed this petition for a [24] writ of habeas corpus. See Dkt. No. 1. [25] LEGAL STANDARD [26] I. AEDPA [27] A district court may consider a petition for writ of habeas corpus “in behalf of a person in 1 custody pursuant to the judgment of a state court only on the ground that he is in custody in 2 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (a). Under 3 the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a habeas petition “shall 4 not be granted with respect to any claim that was adjusted on the merits in state court proceedings 5 unless the adjudication of the claim— [6] (1) resulted in a decision that was contrary to, or involved an 7 unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or [8] (2) resulted in a decision that was based on an unreasonable 9 determination of the facts in light of the evidence presented in the state court proceeding. [10] Id. § 2254(d). “On federal habeas review, AEDPA imposes a highly deferential standard for [11] evaluating state-court rulings and demands that state-court decisions be given the benefit of the [12] doubt.” Felkner v. Jackson, 562 U.S. 594, 598 (2011) (citation and quotations omitted). [13] The “standard of ‘contrary to, or involving an unreasonable application of, clearly [14] established federal law’ is difficult to meet, because the purpose of AEDPA is to ensure that [15] federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice [16] systems, and not as a means of error correction.” Greene v. Fisher, 565 U.S. 34, 38 (2011) [17] (same). A state court decision is “contrary to” clearly established law “if the state court arrives at [18] a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state [19] court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” [20] Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision involves an [21] “unreasonable application of” clearly established federal law “if the state court identifies the [22] correct governing legal principle from [the] Court’s decisions but unreasonably applies that [23] principle to the facts of the prisoner’s case.” Id. at 413 . But the court may not grant relief just [24] because it independently concludes that the state court “applied clearly established federal law [25] erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411 . The [26] question is “whether the state court’s application of clearly established federal law was objectively [27] 1 Under AEDPA, the reviewing court evaluates “the last reasoned state-court decision,” 2 which in this case is from the California Court of Appeal. See Murray v. Schriro, 745 F.3d 984 , 3 996 (9th Cir. 2014) (citation omitted). The petitioner bears the burden of proof. Cullen v. 4 Pinholster, 563 U.S. 170, 181 (2011) (same). 5 II. BATSON 6 The Fourteenth Amendment’s Equal Protection Clause forbids prosecutors from using 7 peremptory challenges to exclude potential jurors solely because of their race. Batson, 476 U.S. at 8 89. A Batson challenge has three steps. First, the defendant must establish a prima facie case that 9 the challenge was based on race “by showing that the totality of the relevant facts gives rise to an 10 inference of discriminatory purpose.” Id. at 93-94. A pattern of excluding jurors of a particular 11 race may raise a plausible inference of discrimination, even if the prosecutor has not attempted to 12 remove all potential jurors of that race and a few remain on the jury. See Paulino v. Castro, 371 13 F.3d 1083 , 1090-92 (9th Cir. 2004). 14 Next, if the requisite showing is made, the burden shifts to the prosecutor to articulate a 15 race-neutral reason for striking the juror. Batson, 476 U.S. at 97. The explanation need not be 16 persuasive, or even plausible, it need only be “a reason that does not deny equal protection.” 17 Purkett v. Elem, 514 U.S. 765, 768-69 (1995) (finding that a prosecutor’s explanation that he 18 struck a black juror because he had “long, unkempt hair, a mustache and a beard” was race-neutral 19 and satisfied Batson’s second step). 20 The trial court then moves to the third and final step: determining whether the defendant 21 has shown purposeful discrimination based on race. Batson, 476 U.S. at 98. To do so, the court 22 “must evaluate the prosecutor’s proffered reasons and credibility under ‘the totality of the relevant 23 facts,’ using all the available tools, including its own observations and the assistance of counsel.” 24 Mitleider v. Hall, 391 F.3d 1039, 1047 (9th Cir. 2004) (citation omitted). 25 DISCUSSION 26 I. STANDARD OF REVIEW 27 As a threshold matter, the parties dispute which standard of review applies. Bennett argues 1 law by applying the wrong legal standard. Pet. at 10:18-11:26 (citing in part Castellanos v. Small, [2] 766 F.3d 1137, 1146 (9th Cir. 2014) (“If the state court applies a legal standard that contradicts 3 clearly established federal law, we review de novo the applicant’s claims, applying the correct 4 legal standard to determine whether the applicant is entitled to relief.”)). He contends that the trial 5 court erred when it considered the demographic of the jury—specifically, that it included one 6 Black juror and one Black alternate—at the third stage of the Batson inquiry rather than the first, 7 as indicated by the court’s comment that the presence of a Black juror and a Black alternate was 8 “powerful evidence” supporting the prosecutor’s credibility. Id. at 11:6-13:24. 9 Bennett’s argument slightly misses the mark. “Under AEDPA, when more than one state 10 court has adjudicated the applicant’s claim, [courts] must look to the last ‘reasoned’ decision” for 11 review. See Castellanos, 766 F.3d at 1145 (citation omitted). Although Bennett agrees that the 12 Court of Appeal’s decision is the last reasoned decision, and contends that its “wholesale 13 acceptance” of the trial court’s consideration of the jury demographic was “off the mark” because 14 it did not “distinguish at which Batson step it may be considered,” he primarily argues that de 15 novo review is appropriate because the trial court erred. See Pet. at 12:18-26, 13:19-24. In this 16 instance, that does not determine whether de novo review should apply. 17 The state first contends that the court’s findings at the third stage of the Batson review— 18 whether the prosecutor’s reasons for striking Domanique J. were credible—is a factual finding that 19 should be reviewed under section 2254(e)(1) and presumed correct. See Answer at 12:3-13:2. 20 However, it notes that the Ninth Circuit has held that federal habeas review of this question falls 21 under section 2254(d)(2), resulting in a “doubly deferential” standard of review where “unless the 22 state appellate court was objectively unreasonable in concluding that a trial court’s credibility 23 determination was supported by substantial evidence,” it must be upheld. See id. at 12:22-3:2 24 (citing in part McDaniels v. Kirkland, 813 F.3d 770, 778 (9th Cir. 2015) (en banc); Briggs v. 25 Grounds, 682 F.3d 1165, 1170 (9th Cir. 2012)). 26 I need not decide which standard of review applies, as Bennett’s petition fails under both. 27 II. DE NOVO REVIEW 1 prosecutor’s reasons for dismissing Domanique J.—his mother’s conviction and his beliefs about 2 the criminal justice system—were not supported by the record and mischaracterized the 3 prospective juror’s statements. See Pet. at 16:4-20:15. Bennett further contends that the 4 prosecutor’s justification for dismissing Domanique J. because of his potential sympathy for 5 criminal defendants was not race-neutral, as the prosecutor failed to dismiss similarly situated 6 jurors. Id. at 20:16-21:9. Taken together, Bennett argues, this shows that the prosecutor’s race7 neutral reasons for dismissing Domanique J. were not credible and instead “pretexts put forth to 8 cover up purposeful discrimination” in violation of the Equal Protection Clause. See id. at 8:7-20. 9 Courts have “drawn a fine distinction between a prosecutor’s false statement that creates a 10 new basis for a strike that otherwise would not exist and a prosecutor’s inaccurate statement that 11 does nothing to change the basis for the strike.” Jamerson v. Runnels, 713 F.3d 1218 , 1232 n.7 12 (9th Cir. 2013). When the prosecutor’s reasons are unsupported by the record, such as when a 13 prosecutor “mischaracterizes a juror’s testimony in a manner completely contrary to the juror’s 14 stated beliefs,” the prosecutor’s credibility is undermined. Aleman v. Uribe, 723 F.3d 976 , 982 15 (9th Cir. 2013); Sifuentes v. Brazelton, 825 F.3d 506, 516 (9th Cir. 2016). But a prosecutor’s 16 “mistake in good faith, such as an innocent transposition of juror information,” does not 17 undermine the prosecutor’s credibility and establish purposeful discrimination. Aleman, 723 F.3d 18 at 982 ; see also Rice v. Collins, 546 U.S. 333, 340 (2006). 19 The prosecutor proffered three reasons for striking Domanique J.: (1) because “at a time 20 when he was living with his mother, she was arrested and charged and convicted of drug 21 trafficking”; (2) because he visited her in prison and “might be prone to sympathy at the prospect 22 of somebody going to prison for a crime”; and (3) because he “question[ed] whether the criminal 23 justice system works for the most part.” RT V 859. 24 A. The Statements Regarding Domanique J.’s Mother 25 Bennett is correct that the prosecutor misstated Domanique J.’s testimony about his 26 relative by stating that it was his mother who was convicted and incarcerated when he was living 27 with her, rather than his aunt. Pet. at 16:21-24. The record shows that Domanique J. stated on his 1 727. During voir dire, when asked about his aunt, Domanique J. further stated that she “spent 2 about four or five years in jail,” that he visited her in jail three times, and that he spoke to her 3 about the case when she was released from jail earlier that year. ART III at 458. When asked if 4 he was close to his aunt, Domanique J. replied: “Yes. I was living there at the time, I didn’t go 5 [to] the court, but I was around her, the relatives when it was going on.” Id. 6 When explaining his strike to the court, the prosecutor stated that “at a time when 7 [Domanique J.] was living with his mother, she was arrested and charged and convicted of drug 8 trafficking.” RT V at 859. The prosecutor further stated: [9] Now, whether that raises the specter that he may have been aware of 10 that or seen evidence of that or certainly have no reason to suspect that he participated in it, but that he was living with her at the time, 11 and then the fact that he has visited her in prison, certainly suggests someone who might be prone to sympathy at the prospect of 12 somebody going to prison for a crime. [13] Id. 14 It is clear from the record that the prosecutor erred in referring to Domanique J.’s mother 15 instead of his aunt. Bennett argues that this was “no innocuous mistake.” Pet. at 17:5-7. He 16 contends that it is “more likely” that a person lives with his mother rather than his aunt, and that “a 17 person’s emotional attachment with their mother is usually greater than that with their aunt.” Id. at 18 17:7-9. He argues that the prosecutor “took advantage of his misstatement of Domanique J’s 19 testimony to argue that both the physical proximity and familial bond between his mother and him 20 disqualified Domanique J.” Id. at 17:9-14. According to Bennett, the prosecutor also summoned 21 a racially stereotyped image of “a mother sitting in the middle of her house packaging marijuana 22 in front of her children”—“a fabricated story that had absolutely no basis in the record to justify 23 his dismissal of Domanique J.” Id. at 17:15-21. By accepting the prosecutor’s justification, 24 Bennett argues, the court incorrectly deemed it credible. Id. at 17:23-25. 25 According to the state, it did not matter whether the prosecutor mentioned Domanique J.’s 26 mother or aunt, as “the thrust of the prosecutor’s statement was that Domanique J. was close to a 27 relative who was arrested and imprisoned for drug trafficking, that Domanique J. visited that 1 an individual who committed a serious crime.” Answer at 17:26-18:25. 2 I agree that the prosecutor’s misstatement was harmless and that this explanation for 3 striking Domanique J. was credible. Although a misstatement by a prosecutor “can be another 4 clue showing discriminatory intent,” it alone is not dispositive. See Flowers v. Mississippi, 139 S. 5 Ct. 2228, 2250 (2019). The record indicates that this misstatement amounted to an “innocent 6 transposition of juror information” that did not undermine the prosecutor’s credibility or otherwise 7 show purposeful discrimination. See Aleman, 723 F.3d at 982 . 8 The prosecutor’s concern with Domanique J.’s experience with his aunt (or with his 9 mother, as misstated) was that Domanique J. might sympathize with someone facing time in 10 prison for committing a crime. See RT V at 859. The prosecutor noted that Domanique J. had 11 visited his relative while she was incarcerated, which was true. Id. Although it was unclear 12 whether, as the prosecutor stated, Domanique J. actually lived with his aunt at the time of her 13 arrest and incarceration—Domanique J. stated only that he was “living there at the time,” without 14 elaborating where “there” was—this detail is not dispositive. See id.; see also ART III at 458. 15 The point is that Domanique J. described a close relationship with a relative—be it his mother or 16 his aunt—who had been convicted and incarcerated. It was credible, then, for the prosecutor to 17 strike him based on a race-neutral reason: that he “might be prone to sympathy at the prospect of 18 somebody going to prison for a crime.” RT V at 859. The basis of the strike was the risk of 19 sympathy arising from the close familial relationship, which remains intact regardless of the 20 specific relative involved. 21 These facts are also distinguishable from the cases that Bennett cites, where courts found 22 that a prosecutor’s mischaracterizations were substantial evidence of purposeful discrimination. 23 These cases demonstrate how the “prosecutor’s credibility is undermined when he or she offers an 24 explanation for a peremptory challenge that mischaracterizes a juror’s testimony in a manner 25 completely contrary to the juror’s stated beliefs.” Aleman, 723 F.3d at 982 (emphasis added). 26 In Cook v. LaMarque, 593 F.3d 810, 818 (9th Cir. 2010), the court found that a 27 prosecutor’s statement that he was “concerned that [the juror] did not believe police witnesses 1 statement: “I don’t believe police officers are always truthful, but I don’t believe the civilian 2 would be either.” This mischaracterization of the juror’s testimony did not conflate relationships, 3 but asserted a sentiment that the juror did not express. 4 In Castellanos, the prosecutor stated that he struck a juror because she did not have any 5 children when in fact she had testified as having two children. 766 F.3d at 1148 . This factual 6 error—whether a person is a parent—was more significant than a minor misstatement regarding a 7 juror’s familial relationship. See Jamerson, 713 F.3d at 1232 n.7 (finding that there was no proof 8 of discriminatory intent when a prosecutor misstated that a juror had brothers, rather than a single 9 brother, in prison). Again, the issue was not whether Domanique J.’s mother or aunt was 10 incarcerated, rather, it was that he was close to a relative who was. 11 Lastly, Bennett analogizes to Miller-El v. Dretke, 545 U.S. 231, 243 (2005), where the 12 prosecutor stated that he struck a juror because of the juror’s comment that he “could only give 13 death if he thought a person could not be rehabilitated.” The Supreme Court determined that the 14 prosecutor mischaracterized the juror’s testimony by representing that he “said he would not vote 15 for death if rehabilitation was possible” when in fact the juror “unequivocally stated that he could 16 impose the death penalty regardless of the possibility of rehabilitation.” Id. at 243-44 . Here again 17 is a situation where the prosecutor substantively mischaracterized a juror’s sentiment rather than 18 confused identities. 19 Unlike these cases, the prosecutor’s misstatement about Domanique J. did not 20 mischaracterize his testimony in a completely contrary way. The concern was that because 21 Domanique J. had a close relationship with a relative who had been convicted of a crime and 22 incarcerated, he might be “prone to sympathy at the prospect of somebody going to prison for a 23 crime.” RT V at 859. Whether that relative was Domanique J.’s mother or aunt does not change 24 the basis for the strike. Accordingly, the misstatement did not demonstrate discriminatory intent. 25 B. The Statement Regarding Domanique J.’s Beliefs About the Justice System 26 Bennett argues that the prosecutor’s additional explanation for striking Domanique J.— 27 because he “question[ed] whether the criminal justice system works for the most part”—was 1 at 19:3-14; see also RT V at 859. 2 The juror questionnaire asked potential jurors about their “general feelings about the 3 fairness and effectiveness of the criminal justice system.” SCT III at 726. Domanique J. wrote: 4 “The criminal justice system works for the most part but there are cases where I feel the system 5 has not worked.” Id. In explaining his rationale for striking Domanique J., the prosecutor said 6 that he also did so because Domanique J. “question[ed] whether the criminal justice system works 7 for the most part.” RT V at 859. In accepting this answer, the trial court stated that Domanique J. 8 considered the criminal justice system “inherently unfair.” Id. at 871. 9 A prosecutor’s mischaracterization signals purposeful discrimination when it changes the 10 basis for the strike. See Jamerson, 713 F.3d at 1232 n.7. While the prosecutor’s assertion may 11 have been an overstatement, it was not, as Bennett asserts, the “exact opposite” of what 12 Domanique J. stated in his questionnaire. See Pet. at 19:11. Nor did it change the basis for the 13 strike. Domanique J.’s statement was somewhat equivocal; he did not definitively say that the 14 system worked or did not. Rather, he provided a caveat: that there were certain cases where it did 15 not. Based on that caveat, the prosecutor’s summation of Domanique J.’s views, although not 16 entirely accurate, did not completely misrepresent or change his sentiment. Domanique J. did 17 question whether the system worked, as evidenced by the cases that he obliquely referenced. 18 Again, any misstatement by the prosecutor did not signal discriminatory intent.3 19 C. The Statements of Other Jurors 20 Bennett further argues that the prosecutor’s justifications for dismissing Domanique J. are 21 not valid because he failed to dismiss similarly situated jurors who were not Black. See id. at 22 19:15-20:15 (citing jurors’ statements about the criminal justice system); 20:16-21:9 (citing jurors’ [23] 3 Bennett also argues that by misconstruing Domanique J.’s statements, the prosecutor “shoe24 horned his testimony into categories that appear race-neutral but are in fact based on group bias” against people who are black. Pet. at 21:12-17. Bennett contends that the prosecutor assumed, [25] because Domanique J. is black, “that he did not trust the criminal justice system” and “that he knew people who had been affected by the criminal justice [system] and therefore would be [26] sympathetic to criminal defendants.” Id. at 21:24-22:1. I recognize the gravity and dangers of the type of bias described by Bennett, whether explicit or implicit. But the evidence supports the [27] prosecutor’s individualized reasons for dismissing Domanique J., including his close relationship 1 statements about their connections to people in prison). The court may use comparative juror 2 analysis to determine whether the prosecutor’s reason for striking a juror was pretextual and 3 instead constituted purposeful discrimination. See Snyder v. Louisiana, 552 U.S. 472 , 484-85 4 (2008). This is a side-by-side comparison of the challenged juror and non-challenged jurors to see 5 if the proffered reason would also apply to the latter. See Miller-El, 545 U.S. at 241 . 6 Bennett contends that the prosecutor’s credibility was undermined by a comparison of 7 Domanique J.’s statements about the justice system and four non-Black jurors’ statements about 8 the justice system that were “far more critical.” Pet. at 19:15-20:15. Bennett describes those 9 statements as: 10 Juror No. 1: Stated that the criminal justice system was “imperfect,” although it was better than other countries. [11] Juror No. 5: Stated that the criminal justice system had its 12 shortcomings, such as taking forever. His children were victims of a crime, and the judge “screwed that case up at first but we got it 13 straightened out two years later.” The juror nodded in agreement in response to the question “sounds like it was kind of involved and 14 there’s issues or problems?” 15 Juror No. 7: Wrote on his questionnaire that “The system incarcerates large numbers of Latinos and African Americans.” [16] Juror No. 12: Wrote in her questionnaire, “It can work sometimes the 17 innocent are required to pay for an attorney and fall between […] not eligible for a public defender but no $ for attorney (sad).” [19] Id. at 19:26-20:10 (citing SCT I at 6, 96, 171; ART II at 253). 20 The jurors are distinguishable from Domanique J. Juror No. 1 stated that the criminal 21 justice system was “imperfect.” SCT I at 6. However, she also stated that it was “way ahead of 22 most countries in the world” and that she was “grateful for it” after working in another country 23 “with no criminal justice system.” Id. As the Court of Appeal stated, the overall sentiment of her 24 statement was that she “actually felt positively about the system,” not that she was “far more 25 critical of the criminal justice system than Domanique J.,” as Bennett asserts. See State Appellate 26 Op. at 14 n.7; see also Pet. at 19:26-27. 27 When asked in the juror questionnaire about his general feelings about the fairness and 1 than most.” SCT I at 66. During voir dire, when asked if he saw any shortcomings of the system, 2 he said only that: “It takes forever.” ART II at 255. His most critical statement came when 3 discussing a criminal case in which his daughters were victims. See id. at 252-53 . Juror 5 said 4 that “[t]he judge screwed that case up at first but we got it straightened out two years later.” Id. at 5 253. Again, none of these statements are “far more critical of the criminal justice system” than 6 those made by Domanique J. See also Pet. at 19:26-27. If anything, Juror No. 5’s statements are 7 similar to Domanique J.’s, in that both acknowledged flaws with the system but generally believed 8 that it worked—or, in Juror No. 5’s words, was “better than most.” See SCT I at 66. 9 Juror No. 7 indicated on his questionnaire that he thought “the system incarcerates large 10 numbers of Latinos and African Americans.” SCT I at 96. This may be read as critical of the 11 criminal justice system, but it does not directly speak to whether the system “works for the most 12 part,” as Domanique J. asserted. 13 Juror No. 12 both questioned the criminal justice system and had a brother who was 14 incarcerated at Santa Rita Jail, which Bennett also argues was pretextual because “several” non15 Black jurors who worked or visited people in prison and were not challenged. Pet. at 20:19-27; 16 see also SCT I at 172. As for her critique of the criminal justice system, Juror No. 12 wrote in her 17 questionnaire that the system “can work sometimes the innocent are required to pay for an 18 attorney and . . . not eligible for a public defender but no $ for attorney (sad).” SCT I at 171. This 19 statement, while somewhat unclear, seems to identify only the specific situation where an innocent 20 person has to pay for their own defense. This is not akin to Domanique J.’s general statements 21 about the legal system. 22 Bennett’s argument regarding other jurors who had interactions with people who were 23 incarcerated fares no better. Unlike Domanique J., most of the allegedly similar jurors (including 24 Jurors Nos. 1, 5 and 7, discussed above) did not have a close relative who had been incarcerated. 25 Instead, he points to: Juror No. 3, who once visited a person in prison; Juror No. 9, who worked as 26 a counselor in prison; and Juror No. 12, who posted bail and picked up her brother from jail. See 27 Pet. at 20:25-28. 1 ago. SCT I at 37. As the Court of Appeal noted, “[t]he individual apparently was not a relative or 2 close friend”—neither the questionnaire nor voir dire reveals that person’s relationship to Juror 3 No. 3. See State Appellate Op. at 20; see also SCT I at 37; ART II at 377-82. This stands in stark 4 contrast to Domanique J., who visited his aunt in jail three times over four to five years until she 5 was released the same year as Bennett’s trial. See ART III at 458. Juror No. 9 worked as a 6 counselor in a juvenile correctional facility for six months while in graduate school a few years 7 prior. See ART III at 491-92; SCT I at 122, 127. This is not the same kind of personal, familial 8 contact with the system that Domanique J. had. And Juror No. 12 stated that she once posted bail 9 for her brother and picked him up at the Santa Rita Jail after he had been arrested (not at San 10 Quentin, as Bennett asserts). ART II at 226-28; SCT I at 172; see also Pet. at 20:26-27. But the 11 brother was not prosecuted, nor sent to prison, and the arrest occurred 10 to 12 years before. ART 12 II at 226-27. A relative’s brief contact with the justice system does not reflect the same depth as 13 Domanique J.’s experience. In contrast, Domanique J.’s aunt went to jail for multiple years. He 14 was close to her, visited her multiple times while incarcerated, and she had only recently been 15 released. 16 In short, the record shows that the prosecutor’s justifications for dismissing Domanique J. 17 were credible and did not indicate purposeful discrimination based on his race. 18 D. The Trial Court’s Sua Sponte Justification 19 Finally, Bennett argues that the trial court improperly relied on another reason for striking 20 Domanique J.: because he “had a contact with the criminal justice system, and that he had a 21 negative experience with that,” specifically that “[h]e felt he was not treated fairly.” Pet. at 23:4-7 22 (citing RT V at 874). He contends that not only was it improper for the court to proffer its own 23 reason supporting the prosecutor’s challenge, but that the trial court also misstated the record in 24 doing so. Id. at 23:7-20. 25 Bennett is correct that this statement is not accurate. When asked if he was treated fairly 26 following his arrest, Domanique J. stated: “I was definitely. At the time, like the arrest, I guess 27 you would say I didn’t feel like I was treated fairly, but I definitely got off very easy.” ART III at 1 consideration of the prosecutor’s credibility unreasonable. A sua sponte explanation of strikes 2 offered by the court is not sufficient to rebut discriminatory purpose. See Paulino, 371 F.3d at 3 1089-90. This is because “it does not matter that the prosecutor might have had good reasons to 4 strike the prospective jurors. What matters is the real reason they were stricken.” Id. at 1090. 5 It is clear from the record that, rather than rely on its own reason for striking Domanique 6 J., the trial court considered the reasons proffered by the prosecutor for doing so. The judge noted 7 that “caselaw has repeatedly held that negative experience by the juror or a close relative of the 8 juror, that is a bona fide and genuine and race neutral reason to excuse the juror.” RT V at 873-74. 9 The judge then listed 11 case citations supporting this proposition. Id. at 871. Additionally, the 10 judge stated that “[t]he fact that a juror is skeptical about the fairness of the criminal justice system 11 had been repeatedly held . . . as a race neutral justification to excuse the juror.” Id. Both of these 12 statements indicate that the trial judge accepted the prosecutor’s two proffered reasons for striking 13 Domanique J., rather than relying solely on his own sua sponte justification. Even if the court did 14 err in proffering its own reason for striking Domanique J., any such error was harmless because 15 that was not the sole reason that the court found the prosecutor credible. 16 In sum, a de novo review shows that the prosecutor’s reasons for striking Domanique J. 17 were credible and not based upon race, meaning there was no violation of the Equal Protection 18 Clause. Bennett is not entitled to habeas relief. 19 III. DEFERENTIAL REVIEW 20 “Courts can . . . deny writs of habeas corpus under section 2254 by engaging in de novo 21 review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not 22 be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.” Berghuis 23 v. Thompkins, 560 U.S. 370, 390 (2010). Obviously, in light of the reasoning in the last section, a 24 deferential review of the appellate court’s decision shows that Bennett is not entitled to relief. 25 For a deferential review, “[t]he pertinent question is not whether the prosecutor was 26 credible, or even whether the trial court’s conclusion to that effect was clearly erroneous.” 27 Sifuentes, 825 F.3d at 518 . “Rather, the pertinent question is whether the state appellate court was 1 a different conclusion regarding the prosecutor’s credibility” (which I did not), I “must give the 2 state appellate court the benefit of the doubt, and may not grant the habeas petition unless the state 3 court’s decision was not merely wrong, but actually unreasonable.” Id. (citations omitted). 4 The Court of Appeal was not objectively unreasonable in upholding the trial court’s 5 determination that no Batson error occurred. The appellate court’s decision laid out the relevant 6 facts in detail, including the prosecutor’s misstatements about Domanique J.’s mother and his 7 characterization of the criminal justice system, and the trial court’s consideration of the 8 prosecutor’s credibility. See State Appellate Op. at 17-21. It also considered Bennett’s 9 comparison of Domanique J. to other jurors. See id. at 20-21. Taking this into account, the 10 appellate court determined that the trial court “considered at length the prosecutor’s reasons for 11 challenging each of the three prospective jurors discussed above, concluded that all of the 12 proffered reasons were valid and race-neutral, and expressly found the prosecutor credible and his 13 justifications genuine.” Id. at 21. “We see no Batson/Wheeler error on this record,” the court 14 wrote, “and certainly no abuse of discretion.” Id. There is nothing that indicates to me that this 15 conclusion was in error, let alone unreasonable. 16 The Court of Appeal also considered Bennett’s argument that the trial court applied an 17 improper legal standard and that de novo review was thus warranted. Id. at 11 n.6. Relying on 18 California Supreme Court cases, it noted that “the fact that the jury included members of a group 19 allegedly discriminated against is not conclusive, it is an indication of good faith in exercising 20 peremptories, and an appropriate factor for the trial judge to consider.” See id. (citing cases). The 21 appellate court concluded that this was “exactly what the trial court did here,” and concluded, 22 “[a]mong many other factors . . . that the retention of one Black juror and one Black alternate 23 supported a finding that the prosecutor’s race-neutral reasons for his peremptory challenges were 24 credible.” Id. Even if the trial court did err by “improperly inflat[ing] the importance of this 25 factor by finding it ‘powerful evidence’ of the prosecutor’s lack of discriminatory intent,” the 26 appellate court wrote that it would “reach the same result under a de novo standard of review.” Id. 27 Even if the retention of the Black juror and alternate was more appropriately considered at 1 review, the appellate court clearly determined that the trial court considered the prosecutor’s many 2 || individual reasons for striking Domanique J., as required at the third and final step. I see nothing 3 objectively unreasonable about the appellate court’s determination. 4 CONCLUSION 5 Bennett’s petition is DENIED. 6 IT IS SO ORDERED. 7 Dated: August 9, 2023 8 . [9] Ifam H. Orrick 10 United States District Judge [16] = 17 Z 18