Filed 4/16/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Petitioner, E086779
v. (Super.Ct.No. RIF1800692)
THE SUPERIOR COURT OF OPINION RIVERSIDE COUNTY,
Respondent;
RUSSELL AUSTIN,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Jeffrey B. Jones,
Judge. Petition granted.
Michael A. Hestrin, District Attorney, Emily R. Hanks and W. Matthew Murray,
Deputy District Attorneys for Petitioner.
No appearance for Respondent.
1 Steven L. Harmon, Public Defender, Brian G. Cosgrove and Allison Lowe,
Deputy Public Defenders for Real Party in Interest.
Petitioner, the People of the State of California, in the person of Michael A.
Hestrin, District Attorney for the County of Riverside, file a petition for writ of mandate
seeking to vacate the order issued on August 12, 2025, denying their request to
disqualify the Honorable Samah Shouka from further action in the case of real party in
interest Russell Austin, case No. RIF1800692. Austin was charged in 2018 with first
degree murder and the People sought the death penalty. Austin filed a claim under the
California Racial Justice Act of 2020 (RJA), a prima facie case had been found and
discovery on the RJA was exchanged. Judge Shouka was assigned to Austin’s case and
was to conduct the evidentiary hearing. Judge Shouka was a former deputy district
attorney employed by the Riverside County District Attorney’s Office (DAO) in the
homicide unit. The People sought to disqualify Judge Shouka from presiding over
Austin’s case based on several provisions in Code of Civil Procedure section 170.1.
The People insist that Judge Shouka had personal knowledge of disputed evidentiary
facts; she served as a lawyer for a party in a proceeding that involved the same issues as
in the present proceeding; and facts and circumstances exist that would lead a person to
reasonably entertain a doubt that Judge Shouka would be impartial in these proceedings.
The Honorable Jeffrey B. Jones was assigned to decide the request for disqualification
and entered an order on August 12, 2025, denying the request.
The People filed a petition for writ of mandate (Petition) asking this court to
reverse the order denying the request to disqualify Judge Shouka and issue a peremptory
2 writ of mandate directing the trial court to vacate its August 12, 2025, order. The
People requested a stay of the proceedings until the issue has been resolved by this
court. This court granted the requested stay and issued an order to show cause why
relief should not be granted. We grant the Petition finding that, based on the facts in
this case, Judge Shouka’s previous employment with the DAO might cause a person
aware of the facts and circumstances related to Judge Shouka to reasonably entertain a
doubt that she would be able to be impartial at the RJA evidentiary hearing within the
meaning of Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii).
FACTUAL AND PROCEDURAL HISTORY
In 2008, Austin had been dating Erica Johnson and she was pregnant with his
baby. Johnson also had a son with a prior boyfriend. Johnson’s mother had not heard
from Johnson for several days, and on August 30, 2018, she went to Johnson’s
apartment to check on her. Johnson was found lying in her own blood with her throat
torn out. Her son was alive but sitting next to her dead body. The unborn baby did not
survive. Austin was charged with special-circumstance murder, and the People filed
notice of an intent to seek the death penalty.
Austin’s case is currently pending an evidentiary hearing pursuant to the RJA,
specifically Penal Code section 745, subdivision (a)(3). Austin is seeking to show that
the DAO seeks the death penalty and files special circumstances charges more
frequently against Black defendants than against White defendants who are similarly
situated, with similar conduct. Austin has provided statistical information, specifically
homicide filings by the DAO for the years between 2006 and 2019.
3 A. AMENDED STATEMENT OF DISQUALIFICATION FILED BY THE
PEOPLE AGAINST JUDGE SHOUKA
The People filed an amended statement of disqualification (ASD) on July 1,
2025. 1 In the ASD, W. Matthew Murray declared that he was the deputy district
attorney assigned to the case against Austin. He declared that Judge Shouka had
personal knowledge of the disputed evidentiary facts in the case within the meaning of
Code of Civil Procedure section 170.1, subdivision (a)(1)(A). He also declared that
Judge Shouka was a lawyer for a party in a proceeding that involved the same issues as
the present proceeding within the meaning of Code of Civil Procedure section 170.1,
subdivision (a)(2)(A). Further, a person aware of the facts and circumstances related to
Judge Shouka might reasonably entertain a doubt that Judge Shouka would be able to be
impartial within the meaning of Code of Civil Procedure section 170.1, subdivision
(a)(6)(A)(iii). Murray signed the ASD under penalty of perjury.
The People provided that Judge Shouka, while at the DAO, handled all aspects of
homicide cases including the prefiling stage, preliminary hearing, trial, and sentencing.
In addition, she offered advice in homicide investigations, made filing
recommendations, and provided advice to her colleagues on cases she did not handle
herself. Judge Shouka possessed “deep knowledge” of how the DAO decided to file
1 The People did not provide all of the attached exhibits to the ASD. This court is reviewing this same issue in People v. Michael Mosby, case No. E086782. We will take judicial notice of the records in that case, which include the declaration of Jared A. Haringsma. They also include the exhibit that lists the 28 defendants whose cases the People allege Judge Shouka was involved in. It is clear these records were reviewed by Judge Jones in denying the ASD filed by Austin.{Exhs 94-95)
4 homicide cases. The People insisted the evidence showed that Judge Shouka had been
the reviewing prosecutor in 28 cases. The People argued that the primary concern was
not that Judge Shouka was actually biased, but rather, there was an appearance of
impropriety. The People also claimed the standard for disqualification pursuant to Code
of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), was relatively low. It was
only needed to show that a person “might” reasonably entertain a doubt as to the judge’s
partiality. (Underscore in original.)
The People argued that a person “might” doubt Judge Shouka’s impartiality
based on the RJA motion filed by Austin claiming that the DAO’s decisions in filing
special circumstances cases and seeking the death penalty was the result of either
explicit or implicit bias, which resulted in racial discrimination. Judge Shouka was
involved in many of these decisions while employed at the DAO. A critical issue that
Judge Shouka had to resolve in the instant case was whether the prior cases in which she
was involved were the result of unbiased case analysis or racial bias. “[A] reasonable,
objective third party might legitimately doubt that Judge Shouka could fairly adjudicate
the issue.”
The People also noted that it was not entirely clear how the evidentiary hearing
pursuant to Penal Code section 745, subdivision (a)(3), would be conducted based on
the statute being recently enacted. An evidentiary hearing could potentially involve a
detailed examination of the facts of prior homicide cases in which Judge Shouka was
involved. It was possible several current and former employees of the DAO would
testify and Judge Shouka may have personal relationships with these persons. The
5 People believed that Judge Shouka, a former prosecutor who handled cases that were
the subject of the RJA statistical analysis, should recuse herself in order to avoid any
appearance of impropriety.
The People argued also that, although Judge Shouka had not worked on Austin’s
case while at the DAO, she did have personal knowledge of the facts of cases that were
relevant as comparable cases in the RJA motion. Further, Judge Shouka previously
served as an attorney for a party in another proceeding with the same issue as Austin’s
case. Judge Shouka had advised the DAO in the relevant prior cases warranting her
being disqualified. The People concluded, “Judge Shouka’s personal knowledge about
and active participation in the types of decisions at issue in this case are grounds for
disqualification not only because an objective observer might question her impartiality,
but because the law specifically bars judges from hearing cases under these
circumstances.”
The People provided the declaration of deputy district attorney Jared A.
Haringsma. He was a deputy district attorney employed by the DAO. He was a
supervisor at the DAO and had been Judge Shouka’s supervisor from 2015 until 2018.
He explained that in the DAO, cases that were assigned to deputy district attorneys were
handled by the deputy throughout the life of the case. As such, the deputy district
attorney assisted with advice during investigations, made recommendations as to
whether to file a case, litigated motions, and handled trial matters. All charging
decisions were presented to the homicide management team for approval. This
involved detailed discussions of legal theories, strategy and tactics. The homicide unit
6 was “highly collaborative.” Judge Shouka was involved in the collaborative decisions
on filing charges in cases. Another document presented was a list of 28 cases that Judge
Shouka was involved in during her time with the DAO. In that list, 19 defendants were
Hispanic, five were Black, and four were White.
B. JUDGE SHOUKA’S RESPONSE TO THE ASD
Judge Shouka filed her answer to the ASD. She expressly denied any claim that
her service as a deputy district attorney for the DAO precluded her from being impartial
and fair in the case or any other case, including any issues raised under the RJA. Judge
Shouka stated she had worked for the homicide unit at the DAO from 2015 until 2018.
She noted that the People claimed she had some involvement in the 28 cases that were
included in the data supporting Austin’s RJA claims. However, no details were
provided as to the level of any alleged involvement in the 28 cases, and there is no
explanation how the 28 cases were relevant to Austin’s RJA claims in the instant case.
Austin’s RJA claims were based on Black defendants being charged more severely than
White defendants by the DAO. Of the 28 cases identified by the People, 20 2 of those
cases involved Hispanic defendants, and “none of the 28 cases is numbered among the
21 comparison cases identified in” Austin’s RJA motion. There was no allegation by
the People that the identified cases were statistically significant or relevant to the
analysis of Austin’s RJA motion.
2 In her declaration, Judge Shouka states 20 of the defendants on the list were Hispanic{Exh 89}; the list itself contains 19 defendants identified as Hispanic.{Mosby Exh 94}
7 Judge Shouka denied that her service as a deputy district attorney disqualified her
from presiding over the case. Her knowledge of the procedures and processes of the
DAO did not affect her ability to fairly and impartially address the issues in the RJA
motion. She had no personal knowledge of the evidentiary facts in the Austin case and
was not a material witness. She further denied that she served as an attorney for a party
in another proceeding with the same issues as the instant case within the meaning of
Code of Civil Procedure section 170.1, subdivision (a)(1)(C). She had not advised on
Austin’s case. Further, she had not advised the DAO on RJA motions as the RJA was
not adopted until two years after she was appointed to the bench. Her recusal would not
serve the interests of justice.
C. DENIAL OF THE ASD
The ASD was assigned to Judge Jones and he entered his order on August 12,
2025. Judge Jones had reviewed the ASD, the points and authorities, the declaration of
Haringsma “(including Exhibit 1)” and the verified answer filed by Judge Shouka.
Judge Jones first noted that the ASD was not a motion. It was a pleading that must
allege facts supporting disqualification; conclusions on information or belief were not
sufficient to support disqualification.
Judge Jones found that the ASD contained conclusory statements that Judge
Shouka should be disqualified. Judge Jones expressed concern that the points and
authorities had been verified by Murray. Judge Jones declined to treat the points and
authorities as an evidentiary declaration. Instead, he would limit the analysis to the
8 facts contained in the declaration from Haringsma. The record established that Judge
Shouka did not participate in the charging of Austin.
Judge Jones noted that the People had the burden of proving facts requiring
disqualification and “[t]he People do not identify any facts in dispute.” He noted that
Austin had performed a statistical analysis showing racially disparate charging
decisions. The People alleged that they dispute his contentions but did not “indicate
what facts are disputed.” (Italics in original.) The People may dispute the underlying
facts of Austin’s statistical analysis but fail to allege what those underlying facts are,
and whether Judge Shouka has personal knowledge of the facts. The People failed to
show that Judge Shouka had personal knowledge of disputed evidentiary facts.
Judge Jones also rejected the claim pursuant to Code of Civil Procedure section
170.1, subdivision (a)(2)(A), which disqualifies a lawyer who represented a party or
gave advice to a party upon a matter involved in the present proceeding. Judge Shouka
was not employed with the DAO when the RJA was adopted. She could not have
advised on the impact of the RJA. Further, factual issues raised by Austin’s challenge
had not been identified.
Judge Jones also rejected disqualification based on Code of Civil Procedure
section 170.1, subdivision (a)(6)(A)(iii), that a person aware of the facts “might”
entertain a doubt as to whether the judge may be able to be impartial. Judge Jones
concluded, “Accepted as true, none of the contentions of the People appear logically
related to the impartiality of Judge Shouka, and thus would not cause a reasonable
(logical) member of the public to suspect bias or prejudice.”
9 Judge Jones acknowledged that “future developments” in the case may require
the matter to be revisited but that was true in every case. Judge Jones concluded that the
People had “failed to meet their burden to show facts requiring disqualification.”
DISCUSSION
The People seek reversal of the finding by Judge Jones denying the ASD and
issuance of a new order granting the People’s request to disqualify Judge Shouka. The
People state that the primary assertion by Austin in the RJA motion is that the DAO
seeks the death penalty and charges special circumstances more frequently against
Black defendants than against White defendants who are similarly situated and who
commit similar conduct. The People insist that Judge Shouka was involved in the
decision to file murder cases in at least 28 cases that were relevant to the time period in
the instant case. The issue to be addressed in the evidentiary hearing is whether the
filings were based on unbiased case analysis or explicit or implicit bias. Further, an
evidentiary hearing may involve a detailed examination of facts of prior homicide cases
including those filed by Judge Shouka. The People further contend that Judge Shouka
has personal knowledge of disputed evidentiary facts concerning the proceeding and
previously served as an attorney for a party in another proceeding with the same issue as
the instant case.
In this case, Austin seeks to prove an RJA violation by proving that “[t]he
defendant was charged . . . of a more serious offense than defendants of other races,
ethnicities, or national origins who have engaged in similar conduct and are similarly
situated, and the evidence establishes that the prosecution more frequently sought or
10 obtained convictions for more serious offenses against people who share the defendant’s
race, ethnicity, or national origin in the county where the convictions were sought or
obtained.” (Pen. Code, § 745, subd. (a)(3).) “[P]roof of a [Penal Code] section 745,
subdivision (a)(3) violation—e.g., differences in seeking or obtaining convictions and
differences in imposing sentences—calls for systemic or institutional analyses that are
most likely demonstrated at least in part through statistical evidence.” (McDaniel v.
Superior Court (2025) 111 Cal.App.5th 228, 242-243.) The policy and practice of the
DAO in charging different defendants, specifically the disparity of the charging of the
death penalty, may suggest patterns of institutional bias, explicit bias, historical patterns
of bias and systematic bias within the DAO. These policies and practices will be
addressed at the evidentiary hearing over which Judge Shouka would be presiding.
Code of Civil Procedure section 170.1 provides for several ways that a judge can
be disqualified. Under Code of Civil Procedure section 170.1, subdivision (a)(2)(A), a
judge shall be disqualified if they “served as a lawyer in the proceeding, or in any other
proceeding involving the same issues he or she served as a lawyer for a party in the
present proceeding or gave advice to a party in the present proceeding upon a matter
involved in the action or proceeding.” Code of Civil Procedure section 170.1,
subdivision (a)(1)(A), provides that a judge shall be disqualified if they have “personal
knowledge of disputed evidentiary facts concerning the proceeding.” Under Code of
Civil Procedure section 170.1, subdivision (a)(6)(C)(iii), a judge shall be disqualified if,
for any reason, “A person aware of the facts might reasonably entertain a doubt that the
judge would be able to be impartial.”
11 Code of Civil Procedure section 170.3, subdivision (d), provides: “The
determination of the question of the disqualification of a judge is not an appealable
order and may be reviewed only by a writ of mandate from the appropriate court of
appeal sought only by the parties to the proceeding.” The facts and circumstances
prompting the challenge to a particular judge must be analyzed as of the time the
challenge is brought. (United Farm Workers of America v. Superior Court (1985) 170
Cal.App.3d 97, 105.) “A party asserting disqualification has a ‘heavy burden’ and
‘must “ ‘clearly’ ” establish the appearance of bias.’ ” (Bassett Unified School Dist. v.
Superior Court (2023) 89 Cal.App.5th 273, 286.)
“The weight of authority supports that where, as here, the relevant facts are
undisputed, a de novo review standard applies to a [Code of Civil Procedure] section
170.1(a)(6)(A)(iii) challenge to a claimed appearance of partiality.” (Wechsler v.
Superior Court (2014) 224 Cal.App.4th 384, 391-392; see also Sincavage v. Superior
Court (1996) 42 Cal.App.4th 224, 230.)
Under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), “ ‘[I]f a
reasonable man would entertain doubts concerning the judge’s impartiality,
disqualification is mandated. “To ensure that the proceedings appear to the public to be
impartial and hence worthy of their confidence, the situation must be viewed through
the eyes of the objective person.” [Citations.] While this objective standard clearly
indicates that the decision on disqualification not be based on the judge’s personal view
of his own impartiality, it also suggests that the litigants’ necessarily partisan views not
provide the applicable frame of reference. [Citations.] Rather, “a judge faced with a
12 potential ground for disqualification ought to consider how his participation in a given
case looks to the average person on the street.” ’ ” (Jolie v. Superior Court (2021) 66
Cal.App.5th 1025, 1039-1040.)
Based on the RJA being recently adopted, there is little case law discussing
whether a former employee of a district attorney’s office can serve as a judge on a case
involving an RJA motion. The People refer to the opinion by the California Supreme
Court Committee on Judicial Ethics Opinions (CJEO) on disqualification of former
prosecutors in RJA motions, which was issued on August 7, 2025 3 (CJEO Opinion).
The CJEO was asked by the requesting judge to address the ethical issues regarding
disqualification and disclosure requirements in cases involving RJA claims. The
requesting judge worked in the county district attorney’s office from 1998 through
2010. During his time at the district attorney’s office, he handled cases involving
firearm enhancements. The requesting judge did not serve in an administrative or
management capacity while at the district attorney’s office. In a case before the now-
requesting judge, a defendant was being charged with a firearm enhancement that had a
potential exposure of 25 years to life. Defendant’s counsel brought an RJA motion
seeking discovery back to the year 2000 from the district attorney’s office of all cases
where firearm enhancements were charged. (CJEO Opinion, at pp. 1-2.) The CJEO
3 CJEO Formal Opinion 2025-028 California Supreme Court Committee on Judicial Ethics Opinions, Disqualification and Disclosure Requirements Under the Racial Justice Act (August 7, 2025) http://www.judicialethicsopinions.ca.gov/wp- content/uploads/CJEO-Formal-Opinion-2025-028-Final.pdf (as of April 16, 2026).
13 was asked whether the requesting judge was required to disqualify from the case, and if
not, what must the judge disclose. (CJEO Opinion at p. 2.)
The CJEO noted that a judge need not recuse “merely because the judge, while
working as a deputy district attorney, handled cases involving elements that may be
subject to discovery under a motion pursuant to the Racial Justice Act.” It further
noted, “Nevertheless, disqualification is required if the judge’s prior prosecutorial
involvement was such that a reasonable person, aware of the circumstances, could
justifiably doubt the judge’s ability to remain impartial.” (CJEO Opinion at pp. 2-3.)
The CJEO reviewed the applicable laws including the California Code of Judicial
Ethics, the RJA, and Code of Civil Procedure section 170.1. (CJEO Opinion 3-7.)
The CJEO reviewed Code of Civil Procedure section 170.1, subdivision
(a)(6)(A)(i)-(iii), specifically, subsection (iii), noting, “A judge must also consider
whether a person aware of the fact that the judge, as a prosecutor, actively participated
in cases involving firearm enhancement allegations might reasonably entertain a doubt
that the judge would be able to be impartial in the present proceeding involving a
defense request for discovery under the [RJA], which may include cases handled by the
judge as a prosecutor, and which may be used to establish a violation of the [RJA] in the
current case.” It rejected that the requesting judge was required to recuse himself. It
considered that the requesting judge as a deputy district attorney did not participate in
the cases more than any other deputy in the office. Further, “any overlap between the
current case before the judge and previous cases handled by the judge as a prosecutor is
that they involve similar enhancement charges. The risk of bias or the appearance of
14 bias is low.” (CJEO Opinion at pp. 13-14.) The CJEO did note, “[T]he result may be
different if the requesting judge, as a former prosecutor, participated in developing or
directing the district attorney’s policy regarding charging firearm enhancements, or was
directly involved in making charging decisions, as opposed to following office policy.
These facts, not present here, may increase the likelihood that a person aware of the
facts could reasonably entertain a doubt as to the judge’s ability to remain impartial.”
(CJEO Opinion at p. 14.)
Here, Haringsma declared that Judge Shouka was present at staffing meetings
where the decision whether to charge a defendant with murder was being discussed.
Judge Shouka, if she were handling a case, would make a recommendation whether to
file charges. The decision whether to file the recommended charges was made at an
internal meeting called “a staffing.” The recommendation to file would be considered
and then approved by a manager. Haringsma also declared that there was a
collaborative process in which all the homicide prosecutors would discuss their cases
and seek advice. Judge Shouka admitted she was present in these staffing meetings
where homicide cases were discussed in detail, “including charges, legal theories and
strategies.” The decisions on charges for homicide cases were being made by the DAO
while Judge Shouka was present. Judge Shouka also admits that she made charging
decisions while at the DAO. As stated by the People, “. . . her actions as a filing and
trial homicide prosecutor are intertwined with the institutions as a whole.” Judge
Shouka insists in her answer that none of the cases she was involved with were listed as
cases that Austin intended to use to compare his charges. However, the issue raised by
15 Austin is how the DAO chooses to file murder charges and seek the death penalty, and
whether there is implicit or explicit bias. Judge Shouka was present at staffing meetings
where these decisions were being discussed, and she regularly recommended charges
that should be brought in homicide cases. Her role was more than just following “office
policy”; she was directly involved in making charging decisions.
The People only had to show in the ASD that a person “might” reasonably
entertain a doubt that Judge Shouka would be able to be impartial. Here, Judge Shouka
made recommendations as to filing charges in homicide cases during the relevant period
of time involved in the RJA motion, and was present at staffing meetings where
decisions were made in other cases as to the charges to be filed. While we do not find
that Judge Shouka was actually biased in this case, a person aware of these facts might
reasonably entertain a doubt as to whether Judge Shouka could be impartial in
determining if the DAO had a pattern of institutional bias, explicit bias, or historical and
systematic bias in filing homicide charges, when she was personally involved in these
decisions while at the DAO.
Our conclusion does not mean that Judge Shouka, or any other judge who is a
former prosecutor, must be recused in every case involving the RJA. Here, the record
was sufficiently developed to show that Judge Shouka may have been personally
involved in the cases that will be examined during the evidentiary hearing. Further, she
was involved in filing decisions made by the DAO in death penalty cases, which may be
a part of the evidentiary hearing in relation to a pattern of institutional bias. Each RJA
case involving a former prosecutor should be determined based on the facts and
16 circumstances involved. We will direct the superior court to vacate its August 12, 2025,
order denying the People’s ASD against Judge Shouka and enter a new and different
order granting the People’s ASD. 4
DISPOSITION
The petition for writ of mandate is granted. We direct the Riverside County
Superior Court to vacate its order issued by Judge Jones on August 12, 2025, denying
the People’s amended statement of disqualification and enter a new and different order
disqualifying Judge Shouka. The stay order issued October 6, 2025, is dissolved.
MILLER Acting P. J.
We concur:
CODRINGTON J.
MENETREZ J.
4 Having found that the ASD should have been granted pursuant to Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), we need not address the additional grounds of disqualification pursuant to Code of Civil Procedure section 170.1, subdivisions (a)(1)(A) and (a)(2)(A).