Tino Pese v. D. Runnels

551 F. App'x 434

Opinions

MEMORANDUM

*

Because the California Court of Appeal applied a standard of review subsequently rejected by the Supreme Court in Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) as too burdensome to a defendant, we review de novo Pese’s Batson claim. Cooperwood v. Cambra, 245 F.3d 1042, 1047-48 (9th Cir.2001).

In so doing, we conclude from the trial record and all relevant circumstances that the challenges of which Pese complains were not exercised in such a manner that established a prima facie case of racial discrimination, i.e., done with a motive to exclude either Ms. Cooper, Ms. Mills, or Mr. Lewis because of their race.

Trial counsel’s Batson objection lacked any substantive content. When asked to respond to the prosecutor’s defense of his challenges, counsel’s response was, “I don’t have anything to say at this point.” He followed up this statement by merely arguing that the exclusion for racial reasons of one prospective juror was enough to support his challenge. Moreover, the prosecutor used only three of his fourteen strikes to challenge African Americans and, because Pese only challenges two of those strikes, the prosecutor only challenged 40% of the African American prospective jurors.

The trial judge, upon whom we rely in the first instance to police this issue, Johnson, 545 U.S. at 170, 125 S.Ct. 2410, concluded based upon Cooper’s and Lewis’s questionnaires and voir dire that “adequate reasons” other than race did exist to exclude them from service. We note in this connection Lewis’s assertive “you figure it out” answer. Cooper’s son was in prison, and she articulated her belief that the criminal justice system was unfair. Pese concedes that there were race-neutral reasons for striking her. Mills’s misinformed answer regarding a defendant’s right to present no evidence speaks for itself.

Finally, the district court conducted a comparative juror analysis and found nothing to support Pese’s claim. We agree. Accordingly, Pese has not satisfied his never-shifting burden of persuasion. Rice v. Collins, 546 U.S. 338, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.