CLEMON YOUNG, JR., Petitioner, v. THE SUPERIOR COURT OF SOLANO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
A162850 (Solano County Super. Ct.
In the Court of Appeal of the State of California, First Appellate District, Division Four
Filed 5/26/22
CERTIFIED FOR PUBLICATION
Under the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1) (the Racial Justice Act or the Act), “[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” (
Based on evidence presented at his preliminary hearing, Young argued below that racial profiling in a traffic stop led to his arrest for the offense of possession of Ecstasy for sale. He also pointed to publicly available statistics showing that, statewide, blacks are more likely to be searched during the course of traffic stops than other citizens. On this showing, he brought a motion under the Racial Justice Act seeking discovery relating to charging decisions in cases he claims are comparable to his. For the past five years, he sought the names and case numbers of others who were charged with or could have been charged with possession of Ecstasy for sale; the same information for a broad range of related drug offenses; the police
Proceeding cautiously and noting the lack of available appellate precedent to guide its application of section 745, subdivision (d), the trial court denied the motion. The court‘s only articulated reason for the denial was that Young‘s good cause showing appeared to rest on nothing more than his race. Before us, on writ review, the Attorney General reiterates this rationale, though in slightly different form. He argues that, as a matter of statutory interpretation, since Young‘s race is the only “logical link” between, on the one hand, the allegation of racial profiling (a charge he claims is pertinent to whether there was a violation of section 745, subdivision (a)(1)), and on the other hand, the allegation of racially biased prosecution (a charge he claims is pertinent to whether there was a violation of section 745, subdivision (a)(3)), good cause for discovery relating to prosecutorial bias is lacking.
We will disagree, vacate the denial order, and remand with directions. The trial court‘s reason for denying Young‘s motion was incorrect as a factual matter. The grounds for the motion went beyond “simply” Young‘s race, and the Attorney General‘s reformulation of that mistaken premise, to the extent his “logical link” argument has any bearing on good cause, goes to the breadth and scope of allowable discovery, not to whether discovery should be allowed at all. Borrowing from the minimal threshold showing that is required to trigger an obligation to provide so-called Pitchess discovery (
But a showing of plausible justification is merely a threshold consideration. “The trial court, in deciding whether the defendant shall be permitted to obtain discovery of the requested material, must consider and balance a number of [other] factors” (City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134 (Alhambra)), “[s]pecifically . . . (1) whether the material requested is adequately described, (2) whether the requested material is reasonably available to the governmental entity from which it is sought (and not readily available to the defendant from other sources), (3) whether production of the records containing the requested information would violate (i) third party confidentiality or privacy rights or
Whether Young can satisfy this multifactor test of good cause remains to be seen. We decline his invitation to reverse outright and issue a writ directing the entry of an order granting his discovery requests as framed. Instead, we vacate the order denying discovery and direct the trial court to give Young‘s motion further consideration. While we provide some general guidance, we leave to the trial court the specific application of the plausible justification standard we adopt here, taking other pertinent factors into account. Described broadly, the court‘s task will be to engage in a discretionary weighing of the strength of Young‘s factual showing, the potential probative value of the information he seeks, and the burdens of gathering the requested “records or information” for disclosure. (
II. BACKGROUND
A. Young‘s Discovery Request
In August 2019, the People filed a felony complaint charging Young with possession of a controlled substance (Ecstasy) for sale (
In May 2021, Young filed a motion to “compel disclosure of relevant data” pursuant to the Racial Justice Act. The motion sought disclosures relevant to whether the People‘s decision to charge him with felony possession of a controlled substance was based on his race in violation of section 745, subdivision (a)(3) of the Racial Justice Act. Specifically, it requested the following categories of information:
“1. The name and case number of every individual against whom charges for a violation of
Health and Safety Code 11378 ,11379 ,11377 , and11350 have been filed in the last five years from January 1, 2016 to March 17, 2021 or the date of receipt of this request, whichever is later.“2. The police reports that form the basis of all of the charges in all of those cases.
“3. The disposition if any of all of the cases. “4. The name and case number of every individual against whom the district attorney declined to prosecute for any of the above-listed Health and Safety Code violations.
“5. The name and case number of every sentencing that occurred for a violation of one of the above-listed Health and Safety Codes, whether or not joined with other charges, from the period between January 1, 2016 and March 17, 2017, or the date of receipt of this request, whichever is later.
“6. The criminal history of every defendant for whom the district attorney provides the above-requested data.”
In order to establish good cause for this information, Young cited statewide data showing that black drivers are more likely than drivers of other races to be subject to a police traffic stop and vehicle search. Young also pointed to the circumstances of the traffic stop leading to his arrest, which, according to him, had the hallmarks of racial profiling—a pretextual traffic stop for an infraction, the use of excessive, unprovoked force, and a search of his entire car.
Centering his discovery motion on alleged racial profiling in connection with his arrest, Young argued that his subsequent prosecution was likely tainted by racial discrimination as well. The Solano County District Attorney opposed the motion, arguing there was no showing of good cause for the requested disclosures. The district attorney claimed that the treatment of black motorists in general by law enforcement has no bearing on the charging decision in Young‘s case. According to the district attorney, Young bore the burden of showing that prosecutorial discretion was exercised with intentional and invidious discrimination in his particular case, and no such showing was made.
The trial court denied Young‘s motion. The court explained it was “not comfortable with making this requirement in this situation because there‘s so little guidance, and it‘s unclear whether or not there needs to be any other information other than simply the race of your client to require it. [¶] I‘m doing that in part because maybe we‘ll get some, maybe this case will lead to us getting some, if you want to appeal my decision in some way. I‘m happy to get further guidance because it is not clear to me what simply indicates, where you have the race of the defendants being the only reason we get into a consideration request under
Young filed a petition for writ of prohibition asking us to vacate the order denying discovery and restrain the court from proceeding further until it
B. The Racial Justice Act
Effective January 1, 2021, the Racial Justice Act, which is codified in a scheme of interrelated statutes in the Penal Code (
The Act sets forth four categories of conduct, any of which, if proved, is enough to “establish” a violation of section 745, subdivision (a). Two of these categories of conduct are most pertinent here. They occur when “[t]he judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant‘s race, ethnicity, or national origin” (
Procedurally, the Act authorizes defendants to seek relief for a violation of section 745, subdivision (a), prior to imposition of judgment, by “motion . . . in the trial court.” (
findings on the record.” (Ibid.) And if a violation of section 745, subdivision (a) is proved, “the court shall impose a remedy specific to the violation found from the following list” (
Specifically at issue here is the discovery provision of the Racial Justice Act,
1. Legislative Rejection of Prevailing Law
Accompanying the Racial Justice Act is a set of uncodified findings that comment extensively on the state of the law at the time the Act was passed. Without endorsing the accuracy of these findings to the extent they set forth and are premised on a particular reading of the law, we summarize them here, for they provide an illuminating guide to the legislative objectives in passing the Act.
The findings explain that “[e]ven though racial bias is widely acknowledged as intolerable in our criminal justice system, it nevertheless persists because courts generally only address racial bias in its most extreme and blatant forms. . . . Even when racism clearly infects a criminal proceeding, under current legal precedent, proof of purposeful discrimination is often required, but nearly impossible to establish.” (Assem. Bill No. 2542 (2019-2020 Reg. Sess.) § 2, subd. (c) (Assembly Bill 2542).) “Implicit bias, although often unintentional and unconscious, may inject racism and unfairness into proceedings similar to intentional bias. The intent of the Legislature is not to punish this type of bias, but rather to remedy the harm to the defendant‘s case and to the integrity of the judicial system.” (Assem. Bill 2542, § 2, subd. (i).)
Even when presented with direct evidence of racial animus, the Legislature finds, courts sometimes do not recognize conduct as racially discriminatory despite tell-tale signs that it rests on stereotypical or derogatory thinking. (Assem. Bill 2542 (2019-2020 Reg. Sess.) § 2, subd. (d).) Citing various examples drawn from case law to illustrate what it perceives as judicial reticence in dealing with claimed race discrimination (Assem. Bill 2542, § 2, subds. (d )-(f )),5 the Legislature concludes that “[c]urrent law, as
interpreted
Stating its intent to depart from the discriminatory purpose paradigm in federal equal protection law (e.g., McCleskey v. Kemp (1987) 481 U.S. 279, 292 (McCleskey) [statistical showing that race likely influenced imposition of death penalty held insufficient to warrant reversal because “to prevail under the Equal Protection Clause, [the defendant] must prove that the decisionmakers in his case acted with discriminatory purpose“]; Batson v. Kentucky (1986) 476 U.S. 79, 93 [“the ‘invidious quality’ of governmental action claimed to be racially discriminatory ‘must ultimately be traced to a racially discriminatory purpose’ “]; see Washington v. Davis (1976) 426 U.S. 229, 240), the Legislature declares an objective “to reject the conclusion that racial disparities within our criminal justice system are inevitable, and to actively work to eradicate them.” (Assem. Bill 2542 (2019-2020 Reg. Sess.) § 2, subd. (i).)
the defendant‘s racial group” (citing Mayfield v. Woodford (9th Cir. 2001) 270 F.3d 915, 924-925 (en banc)); (3) “Existing precedent holds that appellate courts must defer to the rulings of judges who make racially biased comments during jury selection” (citing People v. Williams (2013) 56 Cal.4th 630, 652); and (4) “Existing precedent tolerates the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials” (citing Duncan v. Ornoski (9th Cir. 2008) 286 Fed.Appx. 361, 363 and People v. Powell (2018) 6 Cal.5th 136, 182-183). (Assem. Bill 2542 (2019-2020 Reg. Sess.) § 2, subds. (d)-(e).)
On these foundational findings, the Legislature states an intent to purge racial discrimination from our criminal justice system by taking proactive steps designed to “ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.” (Assem. Bill 2542 (2019-2020 Reg. Sess.) § 2, subd. (i).) Toward that end, the Racial Justice Act provides a set of remedies designed to “eliminate racially discriminatory practices in the criminal justice system.” (Assem. Bill 2542, § 2, subd. (j).) What the Legislature has to say about the specific feature of the Act that is at issue here—the discovery provision—is, of course, particularly notable. The Legislature explains that it wishes to “ensure” that defendants claiming a violation of section 745, subdivision (a), have “access to all relevant evidence, including statistical evidence, regarding potential discrimination in seeking or obtaining convictions or imposing sentences.” (Assem. Bill 2542, § 2, subd. (j).)
2. McCleskey v. Kemp
The legislative findings cite McCleskey, supra, 481 U.S. 279, as the prime example that “[e]xisting [judicial] precedent . . . accepts racial disparities in our criminal justice system as inevitable.” (Assem. Bill 2542 (2019-2020 Reg. Sess.) § 2, subd. (f).) Because the findings highlight McCleskey as an emblem of perceived judicial indifference to racial bias, a review of that case
In McCleskey, a death penalty case, habeas petitioner Warren McCleskey challenged his conviction and sentence on Eighth and Fourteenth Amendment grounds, arguing that statistical evidence showed defendants in Georgia who killed white victims were 4.3 times more likely to receive the death penalty than defendants charged with killing blacks. (McCleskey,
supra, 481 U.S. at p. 287.) He relied on the findings of a statistics expert, Professor David Baldus, who examined 2,000 murder cases throughout the state of Georgia and performed a multiple regression analysis that excluded 230 nonracial explanations for the discriminatory pattern his study confirmed. (Id. at pp. 286-288.) The Baldus study showed that prosecutors were most likely to seek the death penalty in a case involving a white victim. Specifically, Georgia prosecutors requested the death penalty in 70 percent of cases involving black defendants and white victims; 32 percent of cases involving white defendants and white victims; 15 percent of cases involving black defendants and black victims; and 19 percent of cases involving white defendants and black victims. (Id. at p. 287.) And racial factors were most likely to play a role in capital sentencing in cases that presented the greatest degree of jury discretion. (Id. at p. 287, fn. 5.)
The high court accepted the validity of Baldus‘s findings (McCleskey, supra, 481 U.S. at p. 291, fn. 7), but characterized them as evidencing nothing more than a “discrepancy that appears to correlate with race” (id. at p. 312). Pointing to the absence of evidence that the State of Georgia enacted its death penalty statute with a racially discriminatory purpose, the court, by a 5-4 vote, declined to find a constitutional defect. (Id. at pp. 292-296, 298-299.) The court observed that discretion—as exercised by prosecutors as well as by juries—can work in a defendant‘s favor as well as against him (id. at p. 312 [” ‘the power to be lenient [also] is the power to discriminate’ “]), and explained that the jury is a criminal defendant‘s fundamental bulwark against ” ‘race or color prejudice’ ” (id. at p. 310). The court also pointed to Batson v. Kentucky, supra, 476 U.S. 79—notably, another focus of our
Legislature‘s criticism in passing the Racial Justice Act6—to show its own ” ‘unceasing efforts’ to eradicate racial prejudice from our criminal justice
Justice Brennan, in dissent, opined that “[t]he statistical evidence in this case . . . relentlessly documents the risk that McCleskey‘s sentence was influenced by racial considerations.” (McCleskey, supra, 481 U.S. at p. 328 (dis. opn.).) As Justice Brennan saw it, “This evidence shows that there is a better than even chance in Georgia that race will influence the decision to impose the death penalty: a majority of defendants in white-victim crimes would not have been sentenced to die if their victims had been black.” (Ibid.) Given the history of officially sanctioned racial bias in Georgia‘s criminal justice system, Justice Brennan argued that McCleskey‘s statistics could not be ignored. (Id. at pp. 332-334 (dis. opn.).) What the majority characterized as ” ‘unceasing efforts’ ” to “eradicate” racial discrimination in the criminal justice system (McCleskey, at p. 309), Justice Brennan saw as “honorable
steps” but merely evidence of the persistence of the underlying problem (id. at pp. 333, 344 (dis. opn.)). In a rejoinder quoted by the Legislature in its findings accompanying the Racial Justice Act, Justice Brennan observed that the majority‘s “fear . . . McCleskey‘s claim would open the door to widespread challenges to all aspects of criminal sentencing” suggested a “fear of too much justice.” (Id. at p. 339 (dis. opn.).)7
There is little doubt which side of the McCleskey debate our Legislature has aligned California with by statute. More than three decades after McCleskey was decided, the Legislature took up the high court‘s invitation to
permits violations of the Act to be established based on statistics (
3. United States v. Armstrong
While any number of statutory interpretation questions may arise in the future as to the reach and application of the Racial Justice Act, in this case we address only a question of discovery procedure: What showing must a defendant make in order to be entitled to discovery upon an allegation of racially discriminatory charging? A similar question no doubt arose early in Warren McCleskey‘s habeas proceedings, given the presence in the extensive record assembled there of information that could only have been obtained from prosecutors through compelled discovery. (See, e.g., McCleskey, supra, 481 U.S. at p. 360, fn. 13 (dis. opn. of Blackman, J.) [“As a result of McCleskey‘s discovery efforts, the record . . . contains relevant testimonial evidence by two state officials.“].)
It turns out that, even before McCleskey was decided, there were cases addressing this very question in federal law.8 Synthesizing the threshold standard defendants must meet in order to be entitled to discovery in cases alleging selective prosecution, United States v. Armstrong (1996) 517 U.S.
456 (Armstrong) was the leading case at the time the Racial Justice Act was passed and remains the leading case today. Because the discovery question Armstrong addresses is identical to the question we address in this case, albeit where discrimination is claimed under the equal protection clause, Armstrong‘s holding and its reasoning establish a specific point of departure—just as McCleskey is a point of departure more generally—when we consider what the Legislature likely intended when it enacted the “good cause” standard in
In Armstrong, five black defendants were federally charged with conspiracy to distribute crack cocaine, exposing them to mandatory minimum
Reversing, the high court held that no discovery was warranted. (Armstrong, supra, 517 U.S. at p. 458.) It first addressed
But the Armstrong court laid down an important caveat. Where an application for discovery is made under Berrios, the court held it must be subjected to rigorous evidentiary scrutiny, and may be denied outright, because of the presumption of regularity accorded to prosecutorial decisionmaking. “Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one,” the court explained. (Armstrong, supra, 517 U.S. at p. 463.) “These cases afford a ‘background presumption[]’ . . . that the showing necessary
Race-based selective prosecution (Griffin v. Municipal Court (1977) 20 Cal.3d 300) is the equal protection analogue to a statutory theory of racially disparate treatment under section 745, subdivision (a)(3). Prior to Armstrong, the threshold showing for discovery in selective prosecution cases in California—at least until 1990, when the Legislature codified the rules of discovery in criminal cases, as we explain in more detail below—was governed by Griffin and Murgia v. Municipal Court (1975) 15 Cal.3d 286. Griffin and Murgia, taken together, enunciated a “plausible justification” standard that served as the California counterpart to the federal Berrios line of cases. (See People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1188.)9 While the requisite showing to secure discovery under Griffin and Murgia was less stringent than ultimately came to be the case under Armstrong, those cases, too, like Armstrong, required sufficient proof to make out a prima facie case of selective prosecution. (Griffin, at p. 302; Murgia, at p. 301.) And like Armstrong, Griffin and Murgia are founded on the discriminatory purpose paradigm in equal protection jurisprudence. (Griffin, at p. 306; Murgia, at p. 300.) When discovery in criminal cases was codified in 1990, Armstrong superseded Griffin and Murgia in
As we explain below, we conclude that, in section 745, subdivision (d), the good cause standard set by the Legislature is significantly lower than the rigorous standard announced in Armstrong, and is in some respects lower than the standard that preceded it under Griffin and Murgia.
III. DISCUSSION
A. General Principles Guiding Our Analysis
“Writ review is appropriate in discovery matters where, as here, it is necessary to address ‘questions of first impression that are of general importance to the trial courts and to the [legal] profession, and where general
guidelines can be laid down for future cases.” [Citation.] The standard of review for a discovery order is abuse of discretion, because management of discovery lies within the sound discretion of the trial court.” (People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 987.) We review the factual underpinnings of a discretionary determination for substantial evidence (ibid.), but where such a determination rests on “incorrect legal premises,” our review is de novo (People v. Landers (2019) 31 Cal.App.5th 288, 304; see Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 [discretion “must be exercised within the confines of the applicable legal principles“]).
To our knowledge, we are the first appellate court to address the discovery provision of the Racial Justice Act, including its good cause requirement. ” ’ ” ‘As in any case involving statutory interpretation, our fundamental task . . . is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. [Citation.] We begin by examining the statute‘s words, giving them a plain and commonsense meaning.’ ” ’ [Citation.] ‘[W]e consider the language of the entire scheme and related statutes, harmonizing the terms when possible.’ ” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
“If the language of a statutory provision remains unclear after we consider its terms, structure, and related statutory provisions, we may take account of extrinsic sources—such as legislative history—to assist us in discerning the relevant legislative purpose.” ( Gund v. County of Trinity (2020) 10 Cal.5th 503, 511People v. Flores (2020) 44 Cal.App.5th 985, 995.)
Because uncodified findings of legislative intent are voted upon by the entire legislative body, enrolled and signed by the Governor, they may be entitled to somewhat greater weight than traditional legislative history materials (e.g., draft language of bills, committee reports, bill analyses). (See California Housing Financial Agency v. Elliott (1976) 17 Cal.3d 575, 583 [legislative findings, while not binding on the courts, “are given great weight and will be upheld unless they are found to be unreasonable and arbitrary“].) Findings of this type are sometimes so general that they provide little value in resolving a particular issue of statutory construction, but not always. Given the specificity of the findings accompanying the Racial Justice Act, we give the detailed statement of intent we have here considerable weight.
We begin our analysis with the recognition that discovery in criminal cases is governed by a statutory scheme that, with certain specified exceptions, is designed to be reciprocal and exclusive. (See
The legislative history shows that the involvement of the court as a gatekeeper under
B. The Analogy to Pitchess Discovery
But what does “good cause” mean here? “It has long been recognized that ‘[t]he term “good cause” is not susceptible of precise definition.’ ” (In re Lucas (2012) 53 Cal.4th 839, 849.) This chameleon-like phrase takes on different meanings in different contexts. The parties and amici agree that the closest analogy is the good cause standard governing disclosure of law enforcement personnel records—Pitchess discovery.11 Similar to the disclosure regime under the Racial Justice Act, a defendant seeking Pitchess discovery must file a motion supported by affidavits showing “good cause” for it. (
Included in the Pitchess “good cause” calculus is the requirement for a defendant to establish a “plausible factual foundation” for officer misconduct. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025 (Warrick).) To satisfy this requirement, “a defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred.” (Id. at p. 1016.) Critically, a defendant need not show that the alleged misconduct was “probable” or “apparently credible.” (Id. at pp. 1025–1026.) “To require a criminal defendant to present a credible or believable factual account of, or a motive for, police misconduct suggests that the trial court‘s task in assessing a Pitchess motion is to weigh or assess the evidence. It is not. A trial court hearing a Pitchess motion normally has before it only those documents submitted by the parties, plus whatever factual representations counsel may make in arguing the motion. The trial court does not determine whether a defendant‘s version of events, with or without corroborating collateral evidence, is persuasive—a task that in many cases would be tantamount to determining whether the defendant is probably innocent or probably guilty.” (Id. at p. 1026, italics omitted.)
We agree that a discovery-triggering standard similar to the standard applicable to Pitchess discovery motions under
While the plausible justification standard we announce here is similar to the threshold showing that must be made for Pitchess discovery, it is in some respects even more relaxed than the “relatively relaxed standard[]” under
The Racial Justice Act counterpart to Pitchess materiality is “relevan[ce] to a potential violation of
Our interpretation is harmonious not just with the text of section 745, but its structure as well, given the escalating burdens of proof that are evident within the statutory scheme. To claim entitlement to discovery, only plausible justification is required, at least as a threshold matter. Then
C. The Trial Court‘s Mistaken View That Young Relied Solely on His Race
Even if we read
The allegations of a racially motivated stop appear to be specific. Young contends he was stopped for traffic infractions, but he was never cited for any such infractions. He claims the stop was a pretext to order him out of his vehicle and conduct a search exceeding the scope of any genuine suspicion of illegal activity. He also alleges the use of excessive force. When, out of fear, Young questioned the need for him to leave his vehicle, he says he was forcibly removed, beaten, and thrown to the ground, even though he spoke courteously and offered no resistance. All of this took place, Young claims, in retaliation for his conduct in watching officers stopping and searching the vehicle of another motorist (i.e., “rubbernecking,” which is both legal and common). And unlike a typical traffic stop in which an officer approaches a motorist from behind, seeing only the pattern of driving behavior—making it implausible that the race of the driver could be a motivating factor—Young alleges the officer who stopped him had ample opportunity to observe him and take note of his skin color. Suffice it to say that these circumstances, if true, may amount to what is commonly known as racial profiling.13 While
Demurring to Young‘s factual claims about the circumstances of his arrest, the Attorney General contends that Young should be required to make “some showing of charging disparity” in order to obtain discovery relating to the prosecution‘s charging decision under
Nor are we persuaded, as the Armstrong Court was, that “[t]he justifications for a rigorous standard for the elements of a selective prosecution claim . . . require a correspondingly rigorous standard for discovery in aid of such a claim.” (Armstrong, supra, 517 U.S. at p. 468.) While the Armstrong court
D. The Attorney General‘s Argument That Evidence Pertinent to Section 745, Subdivision (a)(1) Cannot Justify Discovery Founded on an Alleged “Violation” of Section 745, Subdivision (a)(3)
Undoubtedly recognizing the likely unsustainability of the trial court‘s premise that Young relies solely on his race, the Attorney General offers a statutory interpretation argument in defense of the court‘s ruling. He contends that we should affirm because evidence of racial bias in traffic stops is relevant only to an alleged “violation” of
We reject this line of argument as well. The four numbered subparts within
In arguing that evidence pertaining to a theory under
A good illustration of the theory Young pursues is Yick Wo v. Hopkins (1886) 118 U.S. 356, a 19th century equal protection landmark and the font of modern selective prosecution law. In Yick Wo, the petitioners, two Chinese nationals, were fined and jailed for operating laundries without a permit. Seeking habeas corpus relief, they argued that the San Francisco Board of Supervisors exercised arbitrary discretionary power to deny them and 200 others of Chinese descent permission to operate laundries in wooden buildings due to the risk of fire, while granting permits to 80 others of non-Chinese descent who were operating laundries “under similar conditions.” (Id. at p. 374.) The effect of this discriminatory pattern of granting permits was to expose only laundry operators of Chinese descent to criminal prosecution. Granting habeas relief, the high court found that, “[t]hough the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is . . . within the prohibition of the constitution.” (Id. at pp. 373–374.) McCleskey treated Yick Wo as a “rare” artifact of a previous era of equal protection law.16 By endorsing statistics as an appropriate mode of proof and eliminating any requirement of showing discriminatory purpose, the Racial Justice Act revitalizes the venerable principle, recognized 135 years ago in Yick Wo, that we must offer a remedy where a facially neutral law is applied with discriminatory effect.
It seems fitting that this principle has been revivified by statute here in California, where it was born, but what is most significant about Yick Wo, as pertinent here, is its recognition that discretionary decisionmaking by the Board of Supervisors had the effect of exposing only Chinese nationals to subsequent criminal enforcement. Justice Blackmun, dissenting in McCleskey, employed similar logic in rebutting what he saw as the flawed equal protection analysis by his colleagues in the majority. Justice Blackmun pointed out that ”McCleskey produced evidence concerning the role of racial factors at the various steps in the decisionmaking process, focusing on the prosecutor‘s decision as to which cases merit the death sentence.” (McCleskey, supra, 481 U.S. at p. 356 (dis. opn.).)17
While the McCleskey majority saw the various stages of discretion at issue in death penalty cases as so atomized and discrete that the weight to be given to McCleskey‘s evidence of prosecutorial discretion, particularly in the one county he focused on, was “limited” (McCleskey, supra, 481 U.S. at p. 295, fn. 15), Justice Blackmun recognized that each element of discretionary decisionmaking must be taken into account in interpreting the aggregate statistics. Applying that logic to this case, if—as Young alleges—there is racial discrimination by Solano County police officers in arresting people for possession of Ecstasy for sale, that may be reflected in downstream decisions by the District Attorney concerning whom to charge. Though no California courts have directly addressed this issue, in New Jersey allegations of racial profiling—supported by a colorable basis to substantiate them—have been
To be sure, we agree with the Attorney General that the statistical proof Young puts forward does not make out a particularly strong case of racial profiling. Young‘s argument based on statewide data and data from another county not only fails to focus directly on Solano County, but lacks any of the statistical controls that persuaded the courts in Kennedy and State v. Ballard to credit the profiling claims made in those cases. From that unimpressive foundation, he draws the inference that the Solano County District Attorney‘s charging practices are tainted with racial bias. The flaws in Young‘s statistical proof, however, serve to illustrate how the good cause standard works. At this stage, he need not make a strong case but only a plausible one. Here, his claim that he was closely observed before being pulled over and subjected to excessive force in the course of his arrest arguably tips the scale from a situation in which he is speculating about possible racial profiling to one in which, in his case, specific facts arguably provide circumstantial proof of the substance of the allegation.18 Statistical discovery could bolster this claim and rationally tie it to prosecutorial decisionmaking, at least as a prima facie matter.
In the end, however, whether the allegations underscoring Young‘s racial profiling theory are enough to support a plausible justification that a violation of
The good cause standard applicable to Pitchess discovery motions supplies a useful analogy here, but in some respects the analogy is incomplete. It is incomplete because, as noted above, the concept of discovery relevance in the Pitchess context (which is defined by subject matter “materiality” to the defendant‘s defense or proposed defense) is narrower than under
Upon a comparison of the treatment of defendants of different races “who have committed similar offenses and are similarly situated,” a “significant difference in seeking or obtaining convictions or in imposing sentences” will prove a violation of
But how far beyond relevance to the merits of the defendant‘s case does discovery under
We need not reinvent the proverbial wheel when it comes to listing all considerations that may bear upon the proper exercise of discretion in this particular context. A vein of common law precedent, predating the codification of criminal discovery in California, supplies some general guidance. Distilling common law discovery principles that were developed in criminal cases before the enactment of Chapter 10, a Second District panel in Alhambra, supra, 205 Cal.App.3d 1118, enunciated a list of seven discretionary considerations trial courts should “consider and balance” in evaluating pretrial discovery requests from the defense. (Id. at p. 1134; see Facebook, Inc. v. Superior Court (Touchstone), supra, 10 Cal.5th at pp. 345–347 [denoting these considerations “the Alhambra factors“]). Notably, only one of the Alhambra factors is whether there is plausible justification for discovery. (Alhambra, at p. 1136 [“the trial court is required to balance a number of factors in addition to the showing of plausible justification“]).
The full list of seven Alhambra factors is as follows: “(1) whether the material requested is adequately described, (2) whether the requested material is reasonably available to the governmental entity from which it is sought (and not readily available to the defendant from other sources), (3) whether production of the records containing the requested information would violate (i) third party confidentiality or privacy rights or (ii) any protected governmental interest, (4) whether the defendant has acted in a timely manner, (5) whether the time required to produce the requested information will necessitate an unreasonable delay of defendant‘s trial, (6) whether the production of the records containing the requested information would place an unreasonable burden on the governmental entity involved and (7) whether the defendant has shown a sufficient plausible justification for the information sought.” (Alhambra, supra, 205 Cal.App.3d at p. 1134, fns. omitted.)
No hard and fast rules can be laid down for the application of this multifactor test on facts presented here, or in any other case, since it is designed to be flexible. But starting with Alhambra factor 7 as a threshold consideration, we can say this much: Where the defendant makes a showing of plausible justification that there was or could have been a violation of the Racial Justice Act, thus triggering access to “all relevant evidence” (Assem.
IV. CONCLUSION
“Because the standard we announce is new, the proper course is to remand to the trial court for application of the . . . test formulated above to the facts of this case.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 824; see Guerrero v. Hestrin (2020) 56 Cal.App.5th 172, 190 [remanding to trial court to apply correct standard in deciding litigant‘s application to inspect a wiretap order and related materials].)
If, on remand, Young persuades the trial court that he has a plausible justification for alleging racial bias in connection with his arrest, the Attorney General‘s argument that that is insufficient to warrant discovery concerning prosecutorial charging, at the end of the day, will go to the form, scope, and timing of discovery, not to whether discovery should be ordered at all. Young seeks disclosure of five years’ worth of data, and data concerning not just the drug offense at issue in this case, but drug offenses under many related statutes, together with a wide range of associated information. Even if he meets the threshold standard for entitlement to discovery that we set forth in this opinion, how much of this requested data may be ordered disclosed, when, and in what form, is for the trial court to consider, in an exercise of its discretion, weighing probative value against burden.
Accordingly, we will direct the trial court to reconsider Young‘s discovery motion under the standard discussed in this opinion, bearing in mind that “[t]here are few claims as serious as the charge put forth by the defendant[] here—that the government has selected [him] for prosecution because of [his] race. Such claims deserve the most careful examination by the courts so that the prosecutorial power does not become a license to discriminate based on race. Discovery is the crucial means by which defendants may provide a trial judge with the information needed in order to determine whether a claim of
V. DISPOSITION
Let a peremptory writ of mandate issue directing respondent superior court to vacate its June 4, 2021 order denying Young‘s motion for discovery under the Racial Justice Act, and to conduct a new hearing to reconsider Young‘s discovery motion in a manner consistent with this opinion.
STREETER, Acting P. J.
WE CONCUR:
BROWN, J.
DESAUTELS, J.*
* Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Young v. Superior Court – A162850
Trial Court: Superior Court of California, County of Solano
Trial Judge: Hon. Jeffrey C. Kauffman
Counsel: Courtney Reed, Deputy Alternate Public Defender, Solano County Office of the Alternate Defender, for Petitioner.
Cooley and Randall R. Lee for Ash Kalra, California State Assemblymember, as Amicus Curiae on behalf of Petitioner.
Mary K. McComb, State Public Defender, Elizabeth Eng, Deputy State Public Defender, as Amicus Curiae on behalf of Petitioner.
Emi MacLean, Grayce Zelphin, and Shilpi Agarwal, for American Civil Liberties Union Foundation of Northern California and Equal Justice Society, as Amici Curiae on behalf of Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit and Bridget Billeter, Deputy Attorneys General, for Real Party in Interest.