1

Filed 2/9/24 Austin v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for 

publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

RUSSELL LYNWOOD AUSTIN,

Petitioner,

v.

THE SUPERIOR COURT OF 

RIVERSIDE COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

E080939

(Super.Ct.No. RIF1800692)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

On the Court’s own motion, the opinion filed on January 25, 2024, is modified as 

follows:

In the second paragraph on page 27 the sentence “The senate amendment to 

Assem. Bill 256 provided the following language” is replaced with “The Legislative 

Counsel’s Digest of Assembly Bill No. 256 (2021-2022 (Reg. Sess.) Summary Dig., 

pp. 93-94) provided the following language.”
2

Except for this modification, the opinion remains unchanged. The modification

does not effect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

I concur:

CODRINGTON

J.
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Filed 1/25/24 Austin v. Superior Court CA4/2 (unmodified opinion)

See concurring opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for 

publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

RUSSELL LYNWOOD AUSTIN,

Petitioner,

v.

THE SUPERIOR COURT OF 

RIVERSIDE COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

E080939

(Super.Ct.No. RIF1800692)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of mandate. Bernard J. Schwartz, 

Judge. Petition granted.
2

Steven L. Harmon, Public Defender, Brian G. Cosgrove, Allison Lowe, Deputy 

Public Defenders; American Civil Liberties Union Capital Punishment Project, Claudia 

Van Wyk, Robert Ponce; American Civil Liberties Union Foundation of Southern 

California and Summer Lacey, for Petitioner.

Complex Appellate Litigation Group, Kirstin M. Ault, Anna-Rose Mathieson; 

Boston University Center for Antiracist Research, Caitlin Glass, Asees Bhasin; Fred T. 

Korematsu Center for Law and Equality and Robert S. Chang, as Amici Curiae for 

Petitioner.

Cooley, Randall R. Lee; Reed Smith, Katelyn Kang; Robby L.R. Saldana and 

Elizabeth Reinhardt, for Amici Curiae Dean Chemerinsky and Law Professors and 

Legal Scholars, as Amici Curiae for Petitioner.

No appearance for Respondent.

Michael A. Hestrin, W. Matthew Murray and Kristen Allison, for Real Party in 

Interest.

Petitioner Russell Lynwood Austin (Petitioner) was charged by the Riverside 

County District Attorney’s Office (the District Attorney) with two counts of murder for 

killing his girlfriend who was 12 weeks pregnant. It was further alleged that he used a 

deadly and dangerous weapon, a knife, and was charged with the special circumstance 

that he committed multiple murders. The District Attorney was seeking the death 

penalty.

Petitioner filed a motion claiming the District Attorney’s decision to seek the 

death penalty violated the California Racial Justice Act of 2020 (CRJA) (Assem. Bill 
3

No. 2542 (2019-2020 Reg. Sess.) Stats. 2020, ch. 317, § 1) (Assem. Bill 2542), which 

added section 745 to the Penal Code (first Motion).

1 Section 745 was enacted to 

prohibit the state from seeking or obtaining a criminal conviction on the basis of race. 

This included that a defendant could not be charged with a more serious offense than 

defendants of other races who have engaged in similar conduct and were similarly 

situated. (§ 745, subd. (a)(3).) 

The trial court denied the first motion without prejudice. Petitioner filed a 

second motion providing additional evidence and argument. While a decision was 

pending, the CRJA was amended by the Racial Justice for All Act of 2022 (Assem. Bill 

No. 256 (2021-2022 Reg. Sess.) Stats. 2022, ch. 739, § 2) (Amended CRJA) (Assem. 

Bill 256). The trial court ruled that Petitioner had failed to make a prima facie showing

of a violation as required under section 745, subdivision (c), and denied an evidentiary 

hearing. 

The trial court denied Petitioner’s motions finding that in order to make a prima 

facie case of racial discrimination under the CRJA and Amended CRJA, Petitioner must 

satisfy the following two-prong test: (1) Petitioner personally was being charged more 

harshly than similarly situated defendants of other races or ethnicities; and (2) statistical 

evidence shows a historic pattern of racial inequality in Riverside County’s capital 

charging practice. The trial court found that Petitioner had satisfied the second prong, 

but statistics alone were not enough to establish the first prong, and therefore, he failed 

1 All further statutory references are to the Penal Code unless otherwise 

indicated.
4

to establish a prima facie case entitling Petitioner to an evidentiary hearing under the 

CRJA and Amended CRJA.

Petitioner petitions this court for a writ of mandate directing the superior court to 

(1) vacate its order denying Petitioner’s request for a hearing on his CRJA claim, and 

(2) enter a new order granting an evidentiary hearing. Amici curiae briefs were 

submitted in support of Petitioner by (1) the Fred T. Korematsu Center for Law and 

Equity and several other centers for race, inequality and the law; and (2) Dean Erwin 

Chemerinsky and 10 law professors and legal scholars. They contend that this court 

should determine that in order to establish a prima facie case entitling Petitioner to an 

evidentiary hearing in the trial court, a defendant need only show statistical and 

aggregate evidence under the CRJA and Amended CRJA. 

We agree in part with the trial court that based on the plain language of section 

745, Petitioner was required to present not only statistical evidence of racial disparity in 

the charging of the death penalty by the District Attorney but also evidence of 

nonminority defendants who were engaged in similar conduct and were similarly 

situated but charged with lesser offenses, to establish a prima facie case. The plain 

language of section 745, subdivision (a)(3), requires evidence of similar conduct and 

similarly situated defendants, and the legislative history sheds no light on what is

required to establish a prima facie case. There is nothing in the statute or the legislative 

history that provides guidance as to what evidence must be presented to determine 

similar conduct in order to establish a prima facie case. Let peremptory
5

However, as we explain post, based on the evidence presented in this case, which 

included factual evidence of nonminority defendants who committed murder but were 

not charged with the death penalty in cases involving similar conduct and who were 

similarly situated, e.g. had stabbed their victims or committed multiple murders, and 

statistical evidence that there was a history of racial disparity in charging the death 

penalty by the District Attorney, Petitioner met his burden of establishing a prima facie

case under section 745, subdivision (a)(3). We need not determine based on the 

evidence presented whether only statistical evidence of similar conduct and similarly 

situated defendants would be sufficient to support a prima facie case. As such, the trial 

court should have ordered an evidentiary hearing at which the People could produce 

evidence of the relevant factors that were used to determine the charges against the

nonminority defendants who were involved in similar conduct and who were similarly 

situated to petitioner, and provide any race-neutral reasons that it considered in deciding 

to charge petitioner with the death penalty in this case. We grant the writ petition

ordering the trial court to conduct an evidentiary hearing.

FACTUAL AND PROCEDURAL HISTORY

A. FACTS AND CHARGES

The parties presented the following facts in the Petition and return: On August 

29, 2008, Petitioner killed his ex-girlfriend in her apartment. At the time of her death, 

the victim was 11 to 12 weeks pregnant with Petitioner’s baby. When law enforcement 

arrived at the apartment, they found the victim with her throat cut. The victim’s twoyear-old son, K.C., was at the apartment during the murder but was unharmed.
6

Petitioner additionally provides in the Petition that during a counseling session 

years after the victim’s murder, K.C. advised the therapist that his father, R.C., was 

present in the apartment the night the victim was murdered. Petitioner was arrested on 

February 6, 2018, based on DNA analysis completed on an unknown substance found 

on the victim’s thigh. Petitioner had no prior criminal history and was 24 years old at 

the time of the offense.

Real party in interest provides that K.C. was found naked next to the victim’s 

body, covered in blood. It was clear he had been with her dead body for some time. 

The victim’s throat had been cut nearly to the point of decapitation.

Petitioner was charged by the District Attorney in an information with one count 

of murder (§ 187) of the victim, and with the special allegation that he personally used a 

deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). In addition, he was 

charged with one count of murder (§ 187) of a fetus. He was charged with the special 

circumstances that he committed first degree murder and one or more additional 

murders in the first or second degree (§ 190.2, subd. (a)(3)). On May 15, 2019, the 

District Attorney provided notice to Petitioner that it intended “after review of all facts 

and circumstances underlying the charges” and his background, to seek the death 

penalty in the case.

B. FIRST MOTION FOR RELIEF UNDER CRJA

Petitioner filed his Motion on July 26, 2022, seeking an evidentiary hearing 

pursuant to the CJRA. Petitioner contended that denial of the Motion would violate 

Petitioner’s rights guaranteed by section 745, his right to equal protection of the law, 
7

and be a miscarriage of justice. Petitioner provided an extensive history of racism in 

California. Petitioner provided statistics regarding the charging of African-American

defendants in Riverside County from January 2016 through December 2021,2 which 

were analyzed by Marisa Omori, Ph.D., a statistics professor. Petitioner argued this 

evidence, along with Omori’s analysis, showed that African-American defendants 

received the harshest punishment of any racial or ethnic group in Riverside County. 

African-American defendants are charged with special circumstances in their murder 

cases at a rate of 64.86 per 100,000 of the adult population; Caucasians are charged at a 

rate of 5.00 per 100,000 of the adult population; and Hispanics are charged at a rate of 

16.84 per 100,000 of the adult population. In addition, Riverside County filed a notice 

of intent to seek the death penalty against 22 defendants between 2016 through 2021. 

Per 100,000 of the adult population, 6.05 involved African-American offenders, 1.45 for 

Hispanic offenders, and .29 for Caucasian offenders. Petitioner argued that this 

statistical evidence was more than sufficient to make out a prima facie case under the 

CRJA. Petitioner contended that African-Americans are charged with more murders, 

special circumstances, and notices of intent to seek the death penalty than Caucasian

offenders, which showed a violation of section 745, subdivision (a)(3).

The District Attorney filed a response to the Motion. They contended that 

Petitioner failed to show he was charged more seriously than defendants of other races, 

ethnicities, or national origins who are similarly situated. Petitioner had not shown the 

2 The data was collected by the Riverside County Public Defender’s Office. 
8

various variables that were considered in charging a defendant. The District Attorney

argued that Petitioner had to compare the facts of cases involving nonminority 

defendants to the instant case. It was impossible for the trial court to consider whether 

petitioner was similarly situated based just on the statistics. Petitioner was charged with 

a multiple-murder special circumstance and one of the victims was an unborn child,

which was a particularly heinous offense. The cases relied on by Petitioner did not 

involve this combination of charging. Further, the Omori study was flawed as she 

conceded no statistically significant difference in Caucasian and African-American

groups based on the small sample size, and involved juvenile cases, which are not 

eligible for the death penalty.

Petitioner filed a reply to the People’s opposition to the Motion. Petitioner stated 

that the history of racism provided in the Motion was relevant to whether he had met his 

burden of making a prima facie case. Further, the studies provided by Petitioner were 

sufficient to support he made out a prima facie case; they had met their similarly 

situated requirement.

Petitioner filed supplemental evidence in support of the Motion on September 28, 

2022. He submitted two further statistical studies performed by Dr. Nick Peterson of 

the University of Miami and Dr. Frank Baumgartner of the University of North 

Carolina, Chapel Hill. Both addressed the racial disparities in charging, sentencing, and 

imposing the death penalty in Riverside County. Peterson’s study relied on information 

on charging of cases in Riverside County between January 2007 and July 2019. The 

information included every case in which murder was charged, every case that a special 
9

circumstance was filed, every case in which the District Attorney sought the death 

penalty, and every case in which the judge or jury imposed the death penalty. The list 

included 800 cases. 

Petersen concluded that although only 20 percent of all murder defendants were

African-American, they comprised 26 percent of those charged with special 

circumstances, 39 percent of those who received death notices, and 36 percent of those 

who received death sentences. In contrast, 25 percent of all murder defendants were 

Caucasian, but only 18 percent received special circumstance charges, 9 percent 

received death penalty notices, and 4 percent received death sentences. Petersen also 

took into account whether legitimate case characteristics or other nonracial factors, such 

as prior convictions, could account for the disparity.

Petersen controlled for defendant race/ethnicity and prior criminal history, victim 

race/ethnicity, age, and gender, and other characteristics, such as multiple victims, use 

of a firearm, and crime location. Even taking into account these variables, AfricanAmerican defendants were 1.71 times more likely to be charged with a special 

circumstance, 9.06 times more likely to receive a death penalty notice, and 14.09 times 

more likely to receive a death sentence than Caucasian defendants. This proved that 

African-American defendants received special circumstances and death penalty notices 

between 2007 and 2019 at significantly higher rates relative to their proportion of the 

population. The death penalty was more frequently sought in cases involving multiple 

victims and prior felony convictions in all cases. Cases involving non-Caucasian
10

victims were less likely to receive the death penalty than those cases involving a 

Caucasian victim.

A further study was submitted that was prepared by Baumgartner. He found that 

since 1972, minority defendants comprised 66 percent of older defendants sentenced to 

death in Riverside County while Caucasian defendants comprised only 25 percent.

Petitioner argued that he had a low burden to make a prima facie showing under 

section 745. All of the studies submitted supported that African-American defendants

in Riverside County were more likely to be charged with murder and the death penalty 

to be sought than nonminority defendants. Riverside County’s capital system operated 

in a racially disparate manner. The trial court should order an evidentiary hearing as 

Petitioner had satisfied his burden under section 745, subdivision (c).

Petitioner included as exhibits the studies completed by Petersen and 

Baumgartner. In addition, a Riverside County racial history timeline was included as an 

exhibit. 

Petitioner also filed a supplemental reply in support of motion for a hearing and 

relief pursuant to the racial justice act. Petitioner was relying on the studies from 

Omori, Baumgartner, and Petersen. Petitioner also noted that Governor Newsom had 

signed the Amended CRJA. The changes made clarified that Petitioner was entitled to 

an evidentiary hearing. The supplemental evidence presented by Petitioner on 

September 28, 2022, established the existence of racial disparities even taking into 

account “similarly situated” cases. Petitioner also argued that section 745, subdivision 

(a)(4)(A), which involved longer and more severe sentences, was ripe for consideration.
11

Petitioner argued he had a low burden to make a prima facie case of a violation 

of section 745, subdivision (a). Omori’s study alone met the prima facie showing. She 

had looked at 689 cases in Riverside County from January 1, 2016, through January 1, 

2022, for racial disparities. In 246 of those cases, at least one special circumstance was 

charged, and in 22 the death penalty was sought. Overall, African-American defendants 

were charged with murder and special circumstances more than Caucasian defendants,

relative to their population in Riverside County. As for the death penalty, of the 22 

cases, African-American defendants consisted of seven of the defendants and Caucasian 

defendants numbered two. This was statistically important based on their relative 

population.

Moreover, the Amended CRJA had defined “similarly situated” to mean that 

factors that are relevant in charging and sentencing are similar and do not require that 

all individuals in the comparison group are identical. Petersen’s analysis included 

controls for variables on capital charging and sentencing decisions, such as multiple 

victims and prior felony convictions.

The District Attorney filed a response to the supplemental reply filed by 

Petitioner after the Amended CRJA had been passed. Based on the changes to the 

CRJA, the District Attorney argued it was clear that Petitioner must show in making out 

a prima facie case more than just statistics. The trial court must look to all of the 

relevant factors in charging and sentencing.

The matter was heard on October 28, 2022. Petitioner’s counsel argued that in 

order to show a violation of section 745, a showing of intentional discrimination was 
12

unnecessary. Moreover, Petitioner was not required to find identical cases to meet the 

similarly situated burden. The evidence presented in the Motion was more than enough 

to make out a prima facie case. According to Omori’s study, African-American 

defendants were overrepresented in charging and seriousness of the charges in relation 

to their representation in a population. Based on Omori’s study, there was such a great 

disparity that “there’s more than a mere possibility that similarly situated defendants are 

being treated differently.” Moreover, Petersen’s study had isolated criminal history, 

racial variables, and severity of the case in his analysis.

The trial court inquired, “So you have to look at, certainly, the charges that . . . 

Mr. Austin [is] facing, the facts and circumstances that are alleged in the crime, any 

prior records that they may have, and all the other factors that I just discussed [such as 

victim characteristics, completion of parole and probation, and facts of the case]. And 

then somehow compare that to a nonminority defendant similarly situated with a similar 

record and similar facts. . . . [¶] It’s not just a simple matter of looking at statistics. 

We’re looking at the individual, the facts in that case.”

Petitioner argued that the above evidence was more properly considered at the 

evidentiary hearing. The study by Petersen was sufficient for a prima facie showing. 

Petitioner also argued the trial court was required to give the law a liberal interpretation 

because it was an ameliorative law. The District Attorney argued that more than 

statistics were required to make out a prima facie case. The trial court must look at the 

specifics of the cases. The statistics could not capture the decisions made in charging 

the death penalty.
13

The trial court first ruled that in order to obtain a hearing, a defendant was 

required to show the similarly situated prong; Petitioner must show that he was being 

discriminated against as shown by nonminority defendants who are similarly situated

but charged with lesser crimes. The trial court reviewed the wording of section 745. 

The trial court found that a prima facie case had not been established. There was 

no doubt that the second prong—a historical pattern of racism—had been shown. 

However, Petitioner had failed to “offer any evidence to show that any systematic bias 

has manifested in they themselves being more harshly charged than similarly situated 

defendants of other races.” Petitioner “offered no evidence that a defendant of a 

different race alleged to have committed domestic violence-related multiple murders of 

a pregnant woman and her fetus would be treated less harshly.” Petitioner had failed to 

make a prima facie case for a violation of section 745. The Motion was denied without 

prejudice to allow Petitioner an opportunity to present additional evidence.

C. SECOND MOTION FOR RELIEF UNDER CRJA

On December 6, 2022, Petitioner filed his Motion for a Hearing and Relief 

Pursuant to the Racial Justice Act (Second Motion). Petitioner sought an evidentiary 

hearing and an ultimate ruling barring the death penalty in his case. The Second Motion 

incorporated the evidence and arguments previously presented and provided further 

evidence. Petitioner argued that he need only show statistical proof in making a prima 

facie case and was not required to identify factually similar cases. The trial court’s 

creation of a two-prong test contravened both the plain language of section 745 but also 

the Legislature’s intent. Petitioner argued that the only showing that was required to be 
14

made was through statistical and aggregate evidence that African-American defendants

who are accused of special-circumstance murder are similarly situated to Caucasian 

people accused of murder but not charged with a special circumstance or the death 

penalty.

Petitioner further argued it would be nearly impossible to find comparable cases 

in order to show a prima facie case. Petitioner again relied on the studies from Omori, 

Petersen, and Baumgartner. These studies showed a prima facie case. Petitioner also 

argued that he had made a prima facie showing under both section 745, subdivision 

(a)(3) and (a)(4)(A). Petitioner concluded that the studies were sufficient. Those 

studies showed, “As a group, [Caucasian] people charged with murder, charged with 

special circumstances, and subject to death notices are similarly situated to [AfricanAmerican] people who face each of these same charges. [Petitioner’s] evidence shows

that at each stage, [African-American] people are more likely to progress to the next 

stage than similarly situated [Caucasian] people.”

Petitioner then provided evidence (although he disagreed it was necessary) of 

similar cases charged by the District Attorney involving nonminority defendants

between 2016 and 2022. Petitioner recounted the facts of his own case.

Petitioner provided the background of several cases involving Caucasian persons 

charged with special circumstance multiple murder but in which the District Attorney

did not seek the death penalty: Robert Lars Pape killed and burned three people. The 

District Attorney did not seek the death penalty against Pape and he was serving a life 

without possibility of parole (LWOP) sentence. Jared Bischoff killed a man who was 
15

flirting with his girlfriend and then killed his girlfriend. Bischoff stabbed his girlfriend 

six times until she bled to death. Bischoff was scheduled for trial, but the District 

Attorney chose not to seek the death penalty. Andrew Burke stabbed to death his 

adopted parents/grandparents and the District Attorney chose not to seek the death 

penalty. 

Petitioner also provided cases involving young Caucasian adult defendants: 

James Coon, who was 26 years old at the time of his offense, robbed a clerk at a store at 

gunpoint and then shot the clerk because he tried to take his photograph. The District 

Attorney did not seek the death penalty against Coon. Melissa Unger, who was 23

years old at the time, was involved in a gang murder that involved the kidnapping and 

torture of a victim. She pled guilty to voluntary manslaughter. Owen Skyler Shover,

who was accused of killing his 16-year-old girlfriend when he was 18 years old, and 

was facing charges but the District Attorney did not seek the death penalty. He also 

noted that Pape, Burke, and Bischoff were all young adults when they committed the 

above murders. Petitioner was 24 years old when the alleged offense took place but he 

was facing the death penalty.

Petitioner presented the “highly aggravated” murders by Caucasian defendants 

for whom the District Attorney did not seek the death penalty. Maxamillion Eagle 

raped and strangled a woman, throwing her body in a trash can. Eagle had a prior 

conviction of assault with a deadly weapon. He was sentenced to LWOP. Noy Boukes 

had a prior conviction of murder in 2016. Boukes drove his car to a location in Hemet 
16

and shot and killed a fellow member of a White supremacist group. Boukes was given 

an LWOP sentence in 2019. He had several other prior convictions.

Petitioner also referenced Caucasian defendants who stabbed their victims but 

were not charged with the death penalty. In 2017, Mark Brierley allegedly killed a 

woman by stabbing her multiple times in the chest, neck, and face. He was sentenced to 

LWOP. Burke and Bischoff both stabbed their victims.

Finally, Petitioner provided cases involving Caucasian defendants who 

committed murders and had prior convictions. Ronald Ricks was a Caucasian man with 

a previous conviction of murder in Riverside County in 2017. He drove up to a house 

and fired multiple shots at persons standing in front of the house, killing one man. Trial 

was set for 2023 and the District Attorney did not seek the death penalty. Ricks had 

several other prior convictions. Boukes and Eagle both had prior convictions. 

Petitioner had no prior criminal history but these Caucasian men received lesser 

charges.

Based on the foregoing, Petitioner argued that the factual comparisons illustrated 

that the District Attorney’s decision to seek the death penalty against him meant that he 

faced significantly harsher punishment than other similarly situated Caucasian 

defendants. Petitioner presented numerous exhibits, which included the studies by 

Omori, Baumgartner, and Petersen, and an exhibit outlining facts and charges in other 

cases filed in Riverside County, including the cases outlined in the Second Motion. The 

list was prepared by the Riverside County Public Defenders Office.
17

A hearing was held on January 20, 2023. The trial court noted that the CRJA 

originally provided that racial bias could be shown by statistical evidence and that a 

defendant need not show that he or she was prejudiced. The trial court acknowledged 

this language, but noted that after this, section 745 was amended to include the similarly

situated language. It was again amended to require similar offenses and similarly 

situated defendants in order to show a violation of section 745, subdivision (a)(3). In 

the final, approved version, the language included that a defendant must be both 

similarly situated and engage in similar conduct as nonminority defendants. The trial 

court inquired of Petitioner’s counsel, “How else can I read that but the plain language 

that it would require a comparison from individuals who commit similar conduct and

have similar offenses that they’re looking at?”

The trial court stated there were several reasons why the District Attorney would 

charge the death penalty, including the severity of the case, the criminal history, and 

whether the victim’s family wanted the death penalty. Something more than statistical 

evidence was required in order to show similar conduct. Petitioner argued that the casespecific evidence provided was sufficient to support a prima facie showing. The trial 

court questioned whether the list took into account the wishes of the victim’s family in 

seeking the death penalty. The trial court again reiterated the statistical evidence 

showed the racial disparity necessary for the first prong. The matter was continued in 

order for the District Attorney to file a response to the Second Motion.

The District Attorney filed their opposition to the Second Motion. They argued 

the trial court should not rely on statistics alone as it would incentivize charging 
18

Caucasian defendants with the death penalty. The People argued that 10 defendants 

mentioned in the Second Motion were not similarly situated to Petitioner. The District 

Attorney then provided reasons why the cases were different from Petitioner’s case: 

(1) Brierly, who stabbed his wife 25 times when he intended to kill her new boyfriend 

but “lost” it when he saw her, was given a lesser sentence based on the plea bargaining 

by his counsel, the Riverside County Public Defender’s Office; (2) Burke had a welldocumented history of mental illness and Petitioner did not; (3) Unger’s case should be 

reviewed in chambers with just the parties; (4) Pape had to be refiled because of the 

strength of the evidence and it was not clear what acts were committed by Pape and 

those by his codefendant who was under 18 years of age and could not be charged with 

the death penalty; (5) Bischoff’s case involved a romantic relationship and several other 

participants and Petitioner’s case differed in that it was a more vicious attack and a 

toddler was present; (6) Coon had no criminal history, he suffered from mental health 

issues and he only robbed the store for gas money; (6) Shover killed a man with whom 

he was involved in committing crimes, his motive was unclear and the body was never 

found so it could not be determined how the victim died; (7) Eagle was involved in a 

killing with several other transients and there were evidentiary issues; (8) Boukes killed 

a fellow gang member over a drug debt and only killed one person while Petitioner

killed the pregnant victim and her son was found in her pool of blood; and (9) Ricks 

killed the victim in a drive-by shooting based on revenge but had no criminal history of 

committing violent crimes or murder. The People concluded that Petitioner had failed 
19

to provide evidence that he was similarly situated to a defendant of another race who 

was charged with less serious crimes than in this case.

Petitioner filed a reply. Petitioner once again argued that he only needed to

present statistical evidence to show that he was being charged with more serious crimes

than other similarly situated nonminority defendants. Petersen’s study was sufficient 

for a prima facie case. Petitioner also encouraged the trial court to look to other 

antidiscrimination statutes in California for guidance. This included discrimination in 

employment and housing cases. These cases did not require a showing of intent to 

discriminate or individual prejudice. Further, Petitioner had provided more than 

adequate examples of similarly situated nonminority defendants for whom the District 

Attorney chose not to seek the death penalty. He was entitled to a hearing on the merits 

of his case.

The Second Motion was heard again on February 24, 2023. Petitioner argued 

that aggregate evidence was sufficient if it took into account the similarly situated 

requirement. The evidence presented took into account this requirement. The wishes of 

the victim’s family and strength of the evidence were irrelevant to explain racial 

differences in charging.

The trial court stated again that it was clear that pursuant to section 745, there 

was a twofold analysis that needed to take place. First was a statistical showing. “The 

other is viewing persons who are in a similar situation, having committed similar 

conduct, as to whether or not there’s a disparity in their treatment.” Clearly, the first 

element had been met by Petitioner. The trial court believed that factors such as 
20

strength of the case, the victim’s family’s wishes, and the criminal history of the 

defendant were all relevant factors in finding similarly situated defendants.

The trial court found, “It appears sufficiently clear to me that the final language 

of the bill was intended to prevent the approach that was suggested by the defense, 

which is to simply permit relief based merely on population-wide charging disparities. 

Therefore, a statistical analysis by itself is not sufficient.” It further stated that 

Petitioner had provided specific evidence to establish that he was being treated more 

harshly compared to defendants of other races. “And this is precisely the type of 

evidence that I believe is necessary and that the original motions lacked.” However, 

Petitioner had still not met his burden. 

The trial court noted the different factors that distinguished the proffered cases 

from Petitioner. Petitioner did not have a prior record but his crime was vicious, nearly 

decapitating his victim. Her young child was found near her body and her fetus did not 

survive. The trial court found, “So in a comparison analysis, which the Court needs to 

do to some degree to look at defendants that are similarly situated, it appears to the 

Court that there were explanations given separate and apart from the pure issue of race 

which distinguished those cases from the case[] of [Petitioner].” The Second Motion 

was denied and Petitioner filed this petition for writ of mandate seeking an order from 

this court that he had established a prima facie case of a violation of section 745 and 

order an evidentiary hearing. 
21

DISCUSSION

Petitioner and amici curiae contend the trial court erred by employing a twoprong test for making a prima facie case of racial discrimination pursuant to section 

745, subdivision (a)(3) and (a)(4). Petitioner insists the trial court misinterpreted the 

plain language, the legislative intent, and policy aims of section 745, subdivision (a)(3) 

and (a)(4). The plain language supports only aggregate and statistical evidence is 

required to make a prima facie case. 

Real party in interest urges this court to uphold the superior court’s interpretation 

of section 745, subdivision (a)(3). Real party in interest argues that holding as 

requested by Petitioner, every defendant in Riverside County could file the same 

motion, citing the same statistics, and be entitled to an evidentiary hearing. Real party 

in interest insists that based on the plain language of the statute, a court in evaluating a 

CRJA claim must consider factors relevant in charging and sentencing, including raceneutral reasons proffered by the prosecution. Further, in looking at the legislative 

history, the Legislature included a similarly situated requirement after the first draft. In 

the Amended CRJA, the Legislature added a similarly situated definition, emphasizing 

the importance of the factor. At a minimum, a defendant must prove under section 745, 

subdivision (a)(3), that another defendant who is similarly situated received more 

lenient treatment because of their race. Relying on statistics alone, the District Attorney

would have an incentive to seek more death penalty sentences on Caucasian defendants, 

an inappropriate racial determination.
22

The parties agree that review in this case is de novo. “We review statutory 

interpretation questions de novo.” (Ventura County Deputy Sheriffs’ Association v. 

County of Ventura (2021) 61 Cal.App.5th 585, 590.)

A. SECTION 745

The CRJA, effective January 1, 2021, added section 745 to the Penal Code. The 

Legislature enacted the CRJA with the express intent “to eliminate racial bias from 

California’s criminal justice system” and “to ensure that race plays no role at all in 

seeking or obtaining convictions or in sentencing.” (Assem. Bill 2542; Stats. 2020, 

ch. 317, § 2, subd. (i); see Young v. Superior Court (2022) 79 Cal.App.5th 138, 149-

150.) Its goal is “to provide remedies that will eliminate racially discriminatory 

practices in the criminal justice system, in addition to intentional discrimination.” 

(Stats. 2020, § 2 subd. (j).) In 2023 the Governor signed into law the Amended CRJA, 

which made several changes to section 745, effective January 1, 2023. Among the 

changes to the statute the Amended CRJA included several definitions of terms used 

and extended relief to any person whose case was final. 

Section 745 was enacted, in part, to address McCleskey v. Kemp (1987) 481 U.S. 

279, 295-299, 312, which found that there was “a discrepancy that appears to correlate 

with race” in death penalty cases in Georgia, but the court would not intervene without 

proof of a discriminatory purpose, concluding that we must simply accept these 

disparities as “an inevitable part of our criminal justice system.” 

A detailed outline of the language of section 745 and the legislative history is 

necessary. Section 745, subdivision (a), provides that “[t]he state shall not seek or 
23

obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, 

ethnicity, or national origin.” A defendant may establish a violation of the CRJA in 

various ways. This case concerns the charging stage of the prosecutorial process.3 

Subdivision (a)(3) of section 745, provides in full, “The defendant was charged or 

convicted 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 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.” (Italics added.)4 

The Legislature defined “similarly situated” in section 745, subdivision (h)(6), as 

follows: “ ‘Similarly situated’ means that factors that are relevant in charging and 

sentencing are similar and do not require that all individuals in the comparison group 

3

 Petitioner and amici curiae also refer to subdivision (a)(4)(A) of section 745. 

It provides, “A longer or more severe sentence was imposed on the defendant than was 

imposed on other similarly situated individuals convicted of the same offense, and 

longer or more severe sentences were more frequently imposed for that offense on 

people that share the defendant’s race, ethnicity, or national origin than on defendants of 

other races, ethnicities, or national origins in the county where the sentence was 

imposed.” This provision only applies to persons who have been sentenced. This is 

further evidenced by the remedy for a violation of section 745, subdivision (a). 

Subdivision (e) of section 745 distinguishes between the remedies prior to judgment and 

those after the judgment. Petitioner has only been charged in this case. Accordingly, the 

proper provision entitling Petitioner to relief is section 745, subdivision (a)(3). We 

further decline to interpret section 745, subdivision (a)(4)(A), for future courts as 

requested by Petitioner as the issue is not properly before this court.

4

 We highlight those terms that are defined in section 745. 
24

are identical. A defendant’s conviction history may be a relevant factor to the severity 

of the charges, convictions, or sentences. If it is a relevant factor and the defense 

produces evidence that the conviction history may have been impacted by racial 

profiling or historical patterns of racially biased policing, the court shall consider the 

evidence.”

Section 745, subdivision (h)(1), provides a definition of “More frequently sought 

or obtained” as that term appears in section 745, subdivision (a)(3). It provides, “ ‘More 

frequently sought or obtained’ or ‘more frequently imposed’ means that the totality of 

the evidence demonstrates a significant difference in seeking or obtaining convictions or 

in imposing sentences comparing individuals who have engaged in similar conduct and 

are similarly situated, and the prosecution cannot establish race-neutral reasons for the 

disparity. The evidence may include statistical evidence, aggregate data, or 

nonstatistical evidence. Statistical significance is a factor the court may consider, but is 

not necessary to establish a significant difference. In evaluating the totality of the 

evidence, the court shall consider whether systemic and institutional racial bias, racial 

profiling, and historical patterns of racially biased policing and prosecution may have 

contributed to, or caused differences observed in, the data or impacted the availability of 

data overall. Race-neutral reasons shall be relevant factors to charges, convictions, and 

sentences that are not influenced by implicit, systemic, or institutional bias based on 

race, ethnicity, or national origin.” 

“If a motion is filed in the trial court and the defendant makes a prima facie 

showing of a violation . . . the trial court shall hold a hearing.” (§ 745, subd. (c).) A 
25

prima facie showing means “that the defendant produces facts that, if true, establish that 

there is a substantial likelihood that a violation of subdivision (a) occurred. For 

purposes of this section, a ‘substantial likelihood’ requires more than a mere possibility,

but less than a standard of more likely than not.” (§ 745, subd. (h)(2).) If an evidentiary 

hearing is ordered, “evidence may be presented by either party, including, but not 

limited to, statistical evidence, aggregate data, expert testimony, and the sworn 

testimony of witnesses.” (§ 745, subd. (c)(1).) “The defendant shall have the burden of 

proving a violation of subdivision (a) by a preponderance of the evidence. The 

defendant does not need to prove intentional discrimination.” (§ 745, subd. (c)(2).) 

B. LEGISLATIVE HISTORY

As amended in the Senate on July 1, 2020, the draft of section 745 provided in 

subdivision (b)(4), that a violation of section 745 occurred if, “The prosecution sought 

or obtained a conviction for an offense for which convictions are more frequently 

sought or obtained against people who share the defendant’s race, ethnicity, or national 

origin than for defendants of other races, ethnicities, or national origins in the county 

where the convictions were sought or obtained.” (Sen. Amend. to Assem. Bill 2542 

(2019-2020 Reg. Sess.) Aug. 1, 2020.) There was no requirement that a prima facie 

showing must be made prior to the holding of a hearing. There were not similarly 

situated or similar conduct requirements as appears in the current section 745, 

subdivision (a)(3). 

On August 1, 2020, Assembly Bill 2542 was further amended to add a prima 

facie requirement. The proposed section 745, subdivision (a)(4), provision was 
26

amended to read, “The defendant was charged or convicted of a more serious offense 

than defendants of other races, ethnicities, or national origins who commit similar 

offenses and the evidence establishes that the prosecution more frequently sought or 

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.” A definition of “prima facie” was included. (Sen. Amend. to Assem. Bill 

2542 (2019-2020 Reg. Sess.) Aug. 1, 2020, italics added.) 

A Senate Committee on Public Safety history of the August 1, 2020 version, 

referred to McCleskey. In addition, it provided, “This bill allows racial bias to be shown 

by, among other things, statistical evidence that convictions for an offense were more 

frequently sought or obtained against people who share the defendant’s race, ethnicity 

or national origin in the county where the convictions were sought or obtained; . . . This 

bill does not require the discrimination to have been purposeful or to have had 

prejudicial impact on the defendant’s case.” (Sen. Com. on Public Safety, Analysis of 

Assem. Bill 2542 (2019-2020 Reg. Sess.) Aug. 7, 2020.)

Further amendments were proposed on August 20, 2020. Proposed section 745, 

subdivision (d)(4) now provided, “The defendant was charged or convicted of a more 

serious offense than defendants of other races, ethnicities, or national origins who 

commit similar offenses and are similarly situated, and the evidence establishes that the 

prosecution more frequently sought or 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.” The definition of “prima facie 
27

showing” was amended. (Sen. Amend. to Assem. Bill 2542 (2019-2020 Reg. Sess.) 

Aug. 20, 2020, italics added.) Nothing in the legislative history provides the reason for 

the addition of the “similarly situated” language or its impact on the prima facie 

showing. 

Assembly Bill No. 256 was introduced to amend section 745 on January 14, 

2021. It initially just sought to expand relief to those whose cases were final prior to 

2021. (Assem. Bill 256, Introduction of Bill.) The Senate amendment to Assembly Bill 

256 provided the following language: “Under existing law, a conviction or sentence is 

unlawfully imposed on the basis of race, ethnicity, or national origin if the defendant 

proves, among other things, that the defendant was charged or convicted of a more 

serious offense than defendants of other races, ethnicities, or national origins, or 

received a longer or more severe sentence, and the evidence establishes that the 

prosecution more frequently sought or obtained convictions for more serious offenses 

against people who share the defendant’s race, ethnicity, or national origin, as specified, 

or if a longer or more severe sentence was more frequently imposed on defendants of a 

particular race, ethnicity, or national origin, as specified. Existing law requires this 

determination to be made pursuant to statistical evidence or aggregate data, as specified. 

[¶] This bill would allow that evidence to include nonstatistical evidence and would 

require the court to consider the totality of the evidence in determining whether a 

significant difference in seeking or obtaining convictions or in imposing sentences has 

been established.” The current provision of section 745, subdivision (a)(3), was 

proposed and the further definitions of relevant factors and changes to the definition of 
28

“more frequently” obtained were proposed. (Sen. Amend. to Assem. Bill 256 (2021-

2022 Reg. Sess.) Aug. 11, 2022.) 

Further amendments were proposed on August 24, 2022, which included the 

current version of section 745, subdivision (a)(3), and all of the definitions outlined 

ante. The “Assembly Floor Analysis” showed that the amendments were intended to 

clarify that “more serious charges or longer or more severe sentences were ‘more 

frequently sought or obtained’ or ‘more frequently imposed’ is based on the totality of

the evidence, which may include statistical evidence, aggregate data, or nonstatistical 

evidence.” (Assembly Floor Analysis – Concurrence in Sen. Amend to Assem. Bill 256 

(2021-2022 Reg. Sess.) August 30, 2022.) There was no further explanation of the 

reason for the changes, and how this language impacted the prima facie showing or the 

evidentiary hearing phase. 

C. ANALYSIS 

When interpreting a statute, we look to its words to “ascertain the intent of the 

Legislature.” (People v. Overstreet (1986) 42 Cal.3d 891, 895-896.) “When statutory 

language is clear and unambiguous, there is no need for construction and courts should 

not indulge in it. (Ibid.) “Because statutory language generally provides the most 

reliable indicator of that intent [citation], we turn to the words themselves, giving them 

their ‘usual and ordinary meanings’ and construing them in context. [Citation.] ‘ “If 

there is no ambiguity in the language of the statute, ‘. . . the Legislature is presumed to 

have meant what it said, and the plain meaning of the statute governs.’ ” ’ ” (People v. 

Lawrence (2000) 24 Cal.4th 219, 230-231.) “If the language of a statutory provision 
29

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, 511.)

1. PRIMA FACIE CASE REQUIREMENTS

Section 745, subdivision (c)(1), makes it clear that at an evidentiary hearing, 

evidence may include “statistical evidence, aggregate data, expert testimony, and the 

sworn testimony of witnesses.” However, it is not clear what type of evidence is 

necessary to prove a prima facie case of a violation of section 745, subdivision (a)(3). 

The plain language of section 745, subdivision (a)(3), clearly provides that in order to 

show a violation, a defendant must show that he was charged with a more serious 

offense than defendants of other races “who have engaged in similar conduct and are 

similarly situated,” and “that the prosecution more frequently sought or 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.” As stated, “ ‘More frequently sought or obtained,’ ” “means that the totality 

of the evidence demonstrates a significant difference in seeking . . . convictions . . . 

comparing individuals who have engaged in similar conduct and are similarly situated, 

and the prosecution cannot establish race-neutral reasons for the disparity.” (§ 745, 

subd. (h)(1).) Despite these definitions, there is nothing in the plain meaning of the 

statute that provides what evidence is necessary to establish a prima facie case of a 

violation of section 745, subdivision (a)(3).
30

The legislative history does not give any insight into the required proof to make a 

prima facie showing. In its original proposed form, there was no similarly situated nor 

similar conduct requirement as appears in section 745, subdivision (a)(3), nor a 

requirement that a prima facie showing was required prior to a hearing. However, the 

statute evolved to include these requirements and we must give meaning both to these 

changes made by the Legislature and the plain meaning of the statute. 

Petitioner and amici curiae focus on the “similarly situated” language in section 

745, subdivision (a)(3). Petitioner claims that the plain language of section 745, 

subdivision (a)(3), permits a defendant to establish a CRJA violation by making one 

evidentiary showing based on statistical proof. Petitioner insists that in order to prevail 

in showing a prima facie case under the CRJA, a defendant “would have to show—and 

could make the showing with statistical or aggregate evidence—that [AfricanAmerican] people accused of special-circumstance murder are similarly situated to 

[Caucasian] people accused of murder but not charged with a special circumstance.” 

Aggregate evidence can be used to show both the greater frequency of punitive 

treatment and similar situations of comparators. However, Petitioner does not explain 

in either the Petition or traverse the importance of the language that Petitioner must 

show that he was “engaged in similar conduct” as other nonminority defendants in 

addition to showing he was similarly situated.

In the amici brief filed by Dean Erwin Chemerinsky and other law professors, 

they also focus on the similarly situated language. They contend Petitioner was not 

required to provide exact comparators to establish a prima facie case. They do not 
31

address the “similar conduct” language. The Korematsu Center for Law and Equality 

contends that the statistical studies presented by Petitioner were sufficient to establish a 

prima facie case. Korematsu argues that the trial court “ignored this legislative 

directive” and imposed a nearly insurmountable barrier to making a prima facie 

showing of a CRJA violation. They insist that statistical analysis of racial disparities 

alone can show more than a “mere possibility” of disparate treatment based on race, and 

that statistical analysis is enough without knowing the individual circumstances. The 

studies by Omori, Petersen, and Baumgartner were sufficient to show more than a 

“mere possibility” of a violation of subdivision (a) of section 745. However, the brief 

also does not address the “similar conduct” language.

At oral argument, Petitioner’s counsel did acknowledge that there is a 

requirement that the evidence must establish similar conduct. Petitioner’s counsel also 

stated that similar conduct could be shown by statistics alone, factual evidence or a 

combination of both types of evidence. 

The plain language of the statute supports that as part of the prima facie showing, 

a defendant must show that nonminority defendants are engaged in similar conduct. 

“Conduct” is defined as “a mode or standard of personal behavior especially as based on 

moral principles.” (Merriam–Webster’s Online Dict. (2023) < http://www.merriamwebster.com/dictionary> [as of Jan. 8, 2024] definition noun.) In criminal cases, 

Evidence Code sections 1108 and 1109 allow for admission of uncharged “conduct” 

that is similar to the current charged offense to prove that the person did in fact commit 

the current charged acts. This involves the admission of the facts of the uncharged 
32

similar conduct. (See Evid. Code, §§ 1108, 1109; People v. Nguyen (2010) 184 

Cal.App.4th 1096, 1115-1118.) The Legislature, prior to using the term “similar 

conduct,” used the term “similar offenses,” in addition to the similarly situated 

language. Similar “offense” language has been used in the discussion of admission of 

other crimes to help show motive, intent, premeditation, or presence of a common 

design or plan. (See People v. Balcom (1994) 7 Cal.4th 414, [“evidence that defendant 

committed uncharged similar offenses would have some relevance regarding 

defendant’s intent in the present case.”].) “With particular regard to the determination 

of relevance, ‘. . . the trial court must look behind the label describing the kind of 

similarity or relation between the other offense and the charged offense; it must 

examine the precise elements of similarity between the offenses with respect to the issue 

for which the evidence is proffered and satisfy itself that each link of the chain of 

inference between the former and the latter is reasonably strong.’ “ (People v. Enos

(1973) 34 Cal.App.3d 25, 35.) While it is unclear as to why the Legislature changed the 

term “similar offense” to “similar conduct,” both traditionally have referred to the 

underlying facts of the crimes and not simply the charged crimes. Since the Legislature 

did not provide a definition of “similar conduct” we rely on the plain meaning, which 

refers to “behavior” of a person on a particular occasion that logically refers to the 

underlying facts of the crimes rather than just a recitation of the charged crime, and as 

the term has traditionally been used in other criminal cases. 

While we may agree with Petitioner that only relying on the word “similarly 

situated” and the definition in the Amended CRJA, it may be sufficient to look only at 
33

similar crimes, such as murder, to show how an African-American person may be 

charged more harshly than a nonminority defendant on these cases and that this could be 

shown by only statistical evidence. It seems clear to this court that “similar conduct” 

requires some sort of review of the underlying facts of the other cases. While there may 

be a situation in which statistics could somehow show similar conduct and similarly 

situated amongst defendants, in this case, Petitioner presented the underlying facts of 

several cases in which the District Attorney did not seek the death penalty for nonminority defendants. As such, we need not determine if statistics alone could meet the 

prima facie burden as factual evidence here was presented to establish similar conduct. 

As stated, the language of section 745 does not clarify what must be shown at the 

prima facie stage and what should be decided at the evidentiary hearing. However, it is 

clear from the language that to prove a prima facie case of a violation under section 745, 

subdivision (a)(3), the evidence must establish that Petitioner was similarly situated and 

engaged in similar conduct with other nonminority defendants who were charged with 

lesser crimes, and that there was racial disparity in the District Attorney’s capital 

charging system. Petitioner’s counsel conceded at oral argument that factual evidence 

of similar conduct could support a prima facie case. The evidence presented by 

Petitioner in the Second Motion of other current cases involving nonminority 

defendants was proper evidence of similar conduct. Based on this factual evidence, we 

need not determine if mere statistical evidence that compares groups who are engaged 

in similar conduct and similar situations may be enough to make a prima facie showing 

under section 745.
34

2. BURDEN OF SHOWING A PRIMA FACIE CASE

The question then remains whether the trial court erred by finding that this 

evidence was insufficient to establish a prima facie case by requiring that Petitioner 

provide an explanation of other relevant factors in sentencing at the prima facie stage, 

such as whether the victim’s family supported seeking the death penalty, to explain the 

racial disparity in seeking the death penalty. It is not clear from either the plain 

language of the statute or the legislative history at what stage the trial court considers 

this evidence and what type of evidence is relevant to showing a prima facie case or

proving a violation at an evidentiary hearing. 

Amici curiae argue that placing the burden on the section 745 movant to address 

the nondiscriminatory reasons for charging as part of a prima facie case is inconsistent 

with existing antidiscrimination law and the process in section 745. Further, the plain 

language of the statute places the burden of producing race-neutral reasons on the 

prosecution. They further argue that many of the variables cannot be attained by a 

defendant at the prima facie stage of litigation. But the briefs provide little assistance in 

helping this court determine what must be shown in order to establish a prima facie 

case. While the briefs argue statistics showing that Petitioner was similarly situated to 

nonminority defendants who were charged with less serious crimes is sufficient, as set 

forth ante this ignores the plain language of the statute that requires not only a showing 

of similarly situated defendants but also those engaged in similar conduct. Further, it 

ignores that the definition of similarly situated provides that “factors that are relevant in 

charging and sentencing are similar.” (§ 745, subd. (h)(6).)
35

A recent Court of Appeal case from San Francisco looked to habeas corpus law 

to determine the standard for making a prima facie case. In Finley v. Superior Court

(2023) 95 Cal.App.5th 12 (Finley), an African-American defendant brought a motion in 

the trial court alleging a violation of the CRJA based on his vehicle being searched 

while he was parked in a known high-crime area. He provided evidence that the officer 

had no logical nonracial reason for stopping and searching him and provided statistical 

evidence that African-American persons in San Francisco are far more likely to be 

stopped by police than other groups. (Id. at pp. 17-18.)5 The trial court denied the 

motion finding that a prima facie case had not been met. On appeal, the defendant 

argued that the trial court improperly weighed the evidence in concluding that he did not 

make a prima facie case. (Id. at p. 20.)

On appeal, the court looked to the prima facie standard applicable to a petition 

for a writ of habeas corpus, noting that there were no cases interpreting section 745. It 

noted in the habeas context, “[t]o establish a prima facie showing for habeas corpus 

relief, a petitioner ‘should both (i) state fully and with particularity the facts on which 

relief is sought [citations], as well as (ii) include copies of reasonably available 

documentary evidence supporting the claim, including pertinent portions of trial 

transcripts and affidavits or declarations.’ ” (Finley, supra, 95 Cal.App.5th at p. 21.) It 

5

 The defendant in Finley brought his claim pursuant to section 745, 

subdivision (a)(1), which provides, “[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.”
36

concluded that in order to show a prima case under the CRJA, a defendant “must state 

fully and with particularity the facts on which relief is sought, and include copies of 

reasonably available documentary evidence supporting the claim. The court should 

accept the truth of the defendant’s allegations, including expert evidence and statistics, 

unless the allegations are conclusory, unsupported by the evidence presented in support 

of the claim, or demonstrably contradicted by the court’s own records. [Citation.] And 

again, the court should not make credibility determinations at the prima facie stage.” 

(Id. at p. 23, fn. omitted.) 

As we have stated, the Legislature did not provide a standard for making a prima 

facie case. However, while it is not possible for this court to know the intended 

standard under section 745, Finley’s analysis provides a reasonable standard based on 

long-standing habeas corpus law. 

Here, it is clear to this court that the statistical evidence of racial disparity 

presented by way of the studies by Omori, Petersen, and Baumgartner was sufficient to 

show a prima facie case of racial disparity in the charging of the death penalty in 

Riverside County. Moreover, Petitioner provided evidence to show nonminority 

defendants in Riverside County were charged with lesser crimes despite being engaged 

in similar conduct as Petitioner, e.g. stabbings or multiple murders. The trial court 

found that Petitioner had failed to provide cases that were similarly situated based on 

other factors in the cases involving nonminority defendants. It concluded there could be 

other reasons that the death penalty may not have been sought in those cases. This 

included whether the victim’s family wanted the District Attorney to pursue the death 
37

penalty. Hence, it placed the burden on Petitioner at the prima facie stage to prove that 

the factors relevant in charging the nonminority defendants were similar to his case, and 

arguably, prove there were no race-neutral reasons for the differences in the charges. 

The language of the statute and the legislative history give this court no guidance 

as to how or when a defendant must prove that “factors that are relevant in charging . . . 

are similar. . . .” (§ 745, subd. (h)(6).) However, section 745, subdivision (h)(1), 

provides that the District Attorney is responsible for providing race-neutral reasons for 

the disparity in charging Petitioner with the death penalty. As stated, the definition in 

section 745, subdivision (h)(1), provides that, “ ‘More frequently sought or obtained’ ” 

means “the totality of the evidence demonstrates a significant difference in seeking or 

obtaining convictions . . . comparing individuals who have engaged in similar conduct 

and are similarly situated, and the prosecution cannot establish race-neutral reasons for 

the disparity.” 

The statute provides that evidence of race-neutral reasons for racial disparity is to 

be presented by the District Attorney, not Petitioner. As such, it follows that the 

presentation of evidence of race-neutral reasons is a defense after the prima facie case 

has been shown. It is not entirely clear if the burden also falls on the District Attorney 

to show the relevant factors that were used in deciding to charge both the nonminority 

defendants and Petitioner. As defined, race-neutral reasons “shall be relevant factors to 

charges . . . that are not influenced by implicit, systemic, or institutional bias based on 

race, ethnicity, or national origin.” (§ 745, subd. (h)(1).)
38

Based on the foregoing, if the defendant provides statistical evidence showing a 

racial disparity in the charging of nonminority defendants and African-American

defendants, and provides evidence of nonminority defendants who engage in similar 

conduct and are similarly situated but were charged with lesser crimes than the charged 

African-American defendant, that this is sufficient to show there was more than a mere 

possibility that a violation of section 745, subdivision (a), has occurred. As such, a 

defendant has met his burden of establishing a prima facie case. An evidentiary hearing 

should be ordered at that point to consider all of the relevant factors in charging and 

allow the District Attorney to present race-neutral reasons for the disparity in seeking 

the death penalty.

While we cannot establish a bright-line rule of what constitutes sufficient 

evidence of “similar conduct” in all cases, here, Petitioner in the Second Motion 

provided the facts of several cases that shared many of the same characteristics as this 

case, including other stabbings and multiple murders committed by nonminority 

defendants who were not charged with the death penalty. In addition, Petitioner 

presented ample evidence that the District Attorney’s capital system more frequently 

sought convictions for more serious offenses against African-American defendants. 

This was enough to provide more than a “mere possibility” that a violation of section 

745, subdivision (a)(3), had occurred. The trial court erred by finding Petitioner did not 

establish a prima facie showing of a violation. Once Petitioner presented this evidence, 

the trial court should have ordered an evidentiary hearing at which the burden shifted to 

the District Attorney to show the race-neutral reasons for the disparity in seeking the 
39

death penalty against Petitioner, which include the relevant factors to charges that were 

not influenced by implicit or systemic racial bias. The trial court, after receiving such 

evidence, could then make a decision based on the totality of the evidence. 

DISPOSITION

Let a writ of mandate issue directing the Superior Court of Riverside County to 

vacate its order denying Petitioner’s request for a hearing, and to conduct an evidentiary 

hearing as set forth in this opinion. The stay ordered on May 4, 2023, is LIFTED.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

MILLER

Acting P. J.

I concur:

CODRINGTON

J.
1

[Austin v. Superior Court, E080939]

MENETREZ, J., Concurring.

Defendant Russell Lynwood Austin was charged in Riverside County Superior 

Court with murder with special circumstances, and the prosecution gave notice that it 

intended to seek the death penalty. Austin filed a motion for a hearing under the 

California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1) (RJA). Austin, who is 

Black, presented statistical evidence showing significant racial disparities concerning the 

death penalty in Riverside County. The evidence showed that Black defendants are 

charged with murder, charged with special circumstances, and subject to death notices at 

rates far higher than their proportion of the adult population in Riverside County, and that 

the corresponding rates for White defendants are far lower than their proportion of the 

adult population. Austin’s statistical evidence also included regression analyses showing 

that (1) “[e]ven after controlling for important legally relevant factors like the presence of 

multiple victims or a felony, logistic regression results indicate that murders with Black 

and Hispanic defendants are more likely to involve a special circumstance, a death notice, 

and a death verdict,” (2) similar disparities occur with respect to Black victims and White 

victims, and (3) the disparities “are especially pronounced in cases involving White 

victims and minority defendants.”

The trial court denied Austin’s motion without prejudice, ruling that more than 

statistical evidence is required to make a prima facie case under the RJA. Austin then 

filed a second motion seeking the same relief, supported both by the statistical evidence 

proffered in support of the first motion and by additional, nonstatistical evidence, in an 
2

effort to meet the standard set by the court when it denied the first motion. The court 

denied the second motion, concluding that Austin’s evidence was still not sufficient to 

make a prima facie case.

In his petition for writ review of the trial court’s rulings, Austin argues that 

statistical evidence can be sufficient on its own to make a prima facie case of a violation 

of the RJA, and he argues that his statistical evidence was in fact sufficient. I agree, and I 

would grant the petition on that basis.

A. Statutory Background

The RJA provides that “[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.” 

(Pen. Code, § 745, subd. (a); unlabeled statutory citations are to this code.) The statute 

further “sets forth four categories of conduct, any of which, if proved, is enough to 

‘establish’ a violation of section 745, subdivision (a).” (Young v. Superior Court (2022) 

79 Cal.App.5th 138, 147 (Young).) One of the categories under which Austin seeks relief 

is subdivision (a)(3) of section 745: “The defendant was charged or convicted of a more 

serious offense than defendants of other races, ethnicities, or national origins who commit 

similar offenses and are similarly situated, and the evidence establishes that the 

prosecution more frequently sought or 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.” The statute also explains that “‘[m]ore 

frequently sought or obtained’ or ‘more frequently imposed’ means that the totality of the 

evidence demonstrates a significant difference in seeking or obtaining convictions or in 
3

imposing sentences comparing individuals who have engaged in similar conduct and are 

similarly situated, and the prosecution cannot establish race-neutral reasons for the 

disparity.” (§ 745, subd. (h)(1).)

If a defendant files a motion alleging a violation of subdivision (a) of section 745, 

and the defendant “makes a prima facie showing” of such a violation, then “the trial court 

shall hold a hearing.” (§ 745, subd. (c).) The statute defines “prima facie showing” as 

follows: It “means that the defendant produces facts that, if true, establish that there is a 

substantial likelihood that a violation of subdivision (a) occurred. For purposes of this 

section, a ‘substantial likelihood’ requires more than a mere possibility, but less than a 

standard of more likely than not.” (§ 745, subd. (h)(2).)

At the subsequent hearing conducted if the defendant makes a prima facie 

showing, “evidence may be presented by either party, including, but not limited to, 

statistical evidence, aggregate data, expert testimony, and the sworn testimony of 

witnesses. The court may also appoint an independent expert. For the purpose of a 

motion and hearing under this section, out-of-court statements that the court finds 

trustworthy and reliable, statistical evidence, and aggregated data are admissible for the 

limited purpose of determining whether a violation of subdivision (a) has occurred.” 

(§ 745, subd. (c)(1).) At the hearing, the defendant bears the burden of proof by a 

preponderance of the evidence, but “[t]he defendant does not need to prove intentional 

discrimination” in order to prevail. (§ 745, subd. (c)(2).)
4

B. McCleskey, the RJA, and Statistical Evidence

In my view, the relationship between the RJA and McCleskey v. Kemp (1987) 481 

U.S. 279 (McCleskey) shows that the trial court’s ruling—that statistical evidence cannot 

be sufficient to make a prima facie case—cannot be correct.

In McCleskey, a defendant who had been sentenced to death in Georgia argued 

that his conviction and sentence were unconstitutional because statistical evidence 

“show[ed] a disparity in the imposition of the death sentence in Georgia based on the race 

of the murder victim and, to a lesser extent, the race of the defendant,” a disparity that 

persisted “even after taking account of 39 nonracial variables.” (McCleskey, supra, 481 

U.S. at pp. 286-287.) The Supreme Court rejected the defendant’s constitutional claim, 

concluding that the statistical evidence “[a]t most . . . indicates a discrepancy that appears 

to correlate with race.” (Id. at p. 312.) The court reaffirmed “the basic principle that a 

defendant who alleges an equal protection violation has the burden of proving ‘the 

existence of purposeful discrimination.’” (Id. at p. 292.) And the court concluded that 

the statistical evidence before it was “clearly insufficient to support an inference that any 

of the decisionmakers in McCleskey’s case acted with discriminatory purpose.” (Id. at 

p. 297.) Four justices dissented, with Justice Brennan observing that the majority’s 

concern “that recognition of McCleskey’s claim would open the door to widespread 

challenges to all aspects of criminal sentencing . . . seems to suggest a fear of too much 

justice.” (Id. at p. 339 (dis. opn. of Brennan, J.).)

“There is little doubt which side of the McCleskey debate our Legislature has 

aligned California with by statute.” (Young, supra, 79 Cal.App.5th at p. 152.) The RJA’s 
5

legislative findings cite McCleskey for the proposition that “[e]xisting precedent . . . 

accepts racial disparities in our criminal justice system as inevitable” (Assem. Bill No. 

2542 (2019-2020 Reg. Sess.) § 2, subd. (f) (Assembly Bill 2542)), and the findings then 

state that “[i]t is the intent of the Legislature to reject the conclusion that racial disparities 

within our criminal justice are inevitable, and to actively work to eradicate them” (id., 

subd. (i)). Directly contrary to McCleskey’s requirement that an equal protection 

claimant prove “purposeful discrimination” (McCleskey, supra, 481 U.S. at p. 292), the 

findings acknowledge the existence of “implicit bias,” which is “often unintentional and 

unconscious,” and the findings express the Legislature’s intent “to remedy the harm to 

the defendant’s case and to the integrity of the judicial system” caused by such bias 

(Assem. Bill 2542, § 2, subd. (i)). Accordingly, the RJA provides that “[t]he defendant 

does not need to prove intentional discrimination.” (§ 745, subd. (c)(2).)

Considered in light of that background, the trial court’s conclusion that statistical 

evidence cannot be sufficient to make a prima facie case under the RJA must be 

mistaken. McCleskey held that statistical evidence cannot be sufficient to prove 

purposeful discrimination and hence cannot be sufficient to prevail on an equal protection 

claim. In enacting the RJA, the Legislature expressly rejected McCleskey and the 

requirement to prove intentional discrimination, expressly seeking to provide remedies 

for implicit bias even though it is “often unintentional and unconscious” (Assem. Bill 

2542 (2019-2020 Reg. Sess.) § 2, subd. (i)). Thus, it cannot reasonably be denied that the 

Legislature intended that relief be more broadly available under the RJA than under 

McCleskey. But if the trial court were right that statistical evidence cannot be sufficient 
6

even for a prima facie case under the RJA, then the RJA would be narrower than 

McCleskey, which held only that statistical evidence cannot be sufficient to prevail.

Other aspects of the statutory language further support that conclusion. First, the 

Legislature set a low standard for a prima facie case under the RJA: The defendant need 

only show that there is “more than a mere possibility” that subdivision (a) of section 745 

has been violated. (§ 745, subd. (h)(2); see also Finley v. Superior Court (2023) 95 

Cal.App.5th 12, 21-22 [discussing the standard for a prima facie case under the RJA, 

which is lower than the prima facie standard for writs of habeas corpus].) It is hard to see 

how the following three propositions can be reconciled: (1) McCleskey held that 

statistical evidence by itself is not sufficient to prevail; (2) the Legislature intended to 

create a broader remedial scheme than McCleskey; but (3) the Legislature provided that 

statistical evidence by itself is not sufficient even to show more than a mere possibility of 

prevailing. The reasonable inference is that statistical evidence can be sufficient to make 

a prima facie case.

Second, the RJA provides that for purposes of a claim of disparate treatment under 

subdivision (a)(3) of section 745, the burden is on the prosecution to “establish raceneutral reasons for the disparity.” (§ 745, subd. (h)(1); see § 745, subd. (a)(3).) It 

follows that in order to prevail on a claim under subdivision (a)(3) of section 745 a 

defendant is not required to negate every possible race-neutral reason for the disparate 

treatment. Rather, the burden is on the prosecution to prove such reasons. A fortiori, the 

defendant need not negate every possible race-neutral reason for the disparate treatment 
7

in order to make a prima facie case. Showing the disparate treatment itself—which can 

be done through statistical evidence—is enough.

Nothing in the statutory language requires a contrary conclusion. The trial court 

focused on the requirement in subdivision (a)(3) of section 745 that “[t]he defendant was 

charged or convicted of a more serious offense than defendants of other races, ethnicities, 

or national origins who have engaged in similar conduct and are similarly situated.” 

(Italics added.) The court concluded “that there has to be some showing more than 

statistical analysis that individually these defendants . . . are being discriminated against, 

vis-a-vis, nonminority defendants that are similarly situated, with similar cases, charges, 

and all of the other factors that go into it.” The court thus appears to have inferred from 

the statutory language that Austin needed to produce evidence that there was another 

defendant who was similar to Austin in all material respects (“all of the other factors that 

go into it”) but as to whom the prosecution did not seek the death penalty.

No such inference is warranted. Again, if statistical evidence cannot be sufficient 

for a prima facie case under the RJA, then the RJA is narrower than McCleskey despite 

the Legislature’s expressed intent to make it broader. The RJA’s inclusion of the words 

“similarly situated” does not compel such an incongruous interpretation, because an 

alternative interpretation is readily available: Statistical techniques such as regression 

analysis can show that racial disparities exist even when one controls for various relevant 

characteristics, meaning that racial disparities exist among defendants who are similarly 

situated (i.e., defendants who share those relevant characteristics). The statute’s 

reference to defendants who are “similarly situated” thus does not mean that a defendant 
8

must prove, at the prima facie stage, that there is at least one other defendant who is 

identical except for race and has an identical case except for race but who was treated 

less harshly. Moreover, the effect of the trial court’s interpretation would be to put the 

burden on the defendant, at the prima facie stage, to negate every possible race-neutral 

reason for the racial disparities shown by the statistical evidence. That conflicts with the 

statutory language, which puts the burden on the prosecution to “establish race-neutral 

reasons for the disparity.” (§ 745, subd. (h)(1).)

For all of the foregoing reasons, I conclude that the trial court erred by ruling that 

more than statistical evidence is required to make a prima facie case under the RJA. 

Moreover, the district attorney does not otherwise challenge the sufficiency of Austin’s 

statistical evidence, and the evidence is clearly sufficient to make a prima facie case. 

Austin’s statistical evidence appears to be at least as strong as the statistical evidence at 

issue in McCleskey, and given that statistical evidence can be sufficient to make a prima 

facie case, I see no basis to conclude that Austin’s evidence fails to show more than a 

mere possibility of proving a violation of section 745, subdivision (a).

Finally, there is an aspect of the People’s argument that I believe should be briefly 

addressed. In their return to Austin’s writ petition, the People claim that Austin is 

“accus[ing] the District Attorney of racism.” The People made the same claim in the trial 

court: “And let’s be very clear. The defense here is calling all of us racist.” The People 

do not elaborate or attempt to defend the claim, and I believe that the claim is mistaken. 

Austin is bringing a claim under the RJA. Such a claim does not require proof of 

“intentional discrimination.” (§ 745, subd. (c)(2).) Moreover, the RJA was expressly 
9

intended to provide remedies for harms caused by implicit bias, which is “often 

unintentional and unconscious” (Assem. Bill 2542 (2019-2020 Reg. Sess.) § 2, subd. (i)), 

and “[t]he Legislature has acknowledged that all persons possess implicit biases” (id., 

subd. (g)). Nothing in the legislative findings or elsewhere in the RJA suggests that the 

Legislature was accusing all persons of racism. Austin’s motion for relief under the RJA 

is similar. He contends that he has introduced sufficient evidence to make a prima facie 

case under that statute. The statute does not require—either for a prima facie case or to 

prevail at a subsequent hearing—that Austin allege or prove that the prosecutors are 

racist, and nothing in the record suggests that he is attempting to do so.

The trial court erred by concluding that statistical evidence cannot be sufficient to 

make a prima facie case under the RJA. Austin’s statistical evidence was sufficient. I 

therefore concur in the judgment granting the petition and directing the trial court to 

conduct a hearing under subdivision (c) of section 745.

MENETREZ

J.