IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

V.

FRANCISCO MIGUEL URREA,

Appellant.

No. CR-17-0261-PR

Filed July 11, 2018

Appeal from the Superior Court in Pinal County

The Honorable Dwight P. Callahan, Judge Pro Tempore

No. CR201402545

AFFIRMED

Opinion of the Court of Appeals, Division Two

242 Ariz. 518 (App. 2017)

AFFIRMED IN PART; VACATED IN PART

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor 

General, Joseph T. Maziarz, Chief Counsel, Phoenix, Amy Pignatella Cain 

(argued), Assistant Attorney General, Criminal Appeals Section, Tucson, 

Attorneys for State of Arizona

Rafael F. Gallego (argued), Gallego Law Firm, P.C., Tucson, Attorney for 

Francisco Miguel Urrea

Amy Kalman, Brian Thredgold, Arizona Attorneys for Criminal Justice, 

Phoenix; Jared G. Keenan (argued), Kathleen E. Brody, American Civil 

Liberties Union Foundation of Arizona, Phoenix, Attorneys for Amici

Curiae
STATE V. URREA

Opinion of the Court

2

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF

JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES

PELANDER, TIMMER, GOULD, and LOPEZ joined.

JUSTICE BOLICK, opinion of the Court:

¶1 During a trial on narcotics charges, the prosecutor violated 

Defendant’s equal protection rights by using peremptory strikes to remove 

Hispanic jurors from the venire in violation of Batson v. Kentucky, 476 U.S. 

79 (1986). We hold that the trial court’s remedy reinstating the wrongfully 

excluded jurors to the venire was proper.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Defendant Francisco Miguel Urrea was charged with and 

found guilty of transportation of a narcotic drug for sale. During jury 

selection, Urrea raised a Batson challenge, contending that five of the 

prosecutor’s six peremptory strikes targeted potential jurors with 

“Hispanic ethnic background[s].”

¶3 The trial court conducted a Batson analysis and concluded 

that the prosecutor could not establish a race-neutral justification for

striking three of the challenged jurors. Although it found a Batson violation, 

the court found no misconduct on the prosecutor’s part. The court ruled 

that the prosecutor forfeited those three strikes and restored the three jurors 

to the venire. Urrea moved for a mistrial and dismissal of the entire venire. 

The court denied the motion and empaneled the first nine jurors who had 

not been struck, including two of the reinstated jurors.

¶4 A divided panel of the court of appeals affirmed. State v. 

Urrea, 242 Ariz. 518 (App. 2017). The court held that reinstatement of the 

wrongfully excluded jurors to the venire was permissible under Batson and 

proper under the circumstances. Id. at 525–26 ¶¶ 21–25. The dissenting 

judge stated that restoring improperly challenged jurors to the venire was 

permissible but an “incomplete” remedy, id. at 529 ¶ 39 (Miller, J., 

dissenting), and expressed that the court should have restored defense 

counsel’s peremptory challenges or started the jury selection process anew,

id. at 530 ¶ 42.
STATE V. URREA

Opinion of the Court

3

¶5 We granted review because the appropriate remedies for a 

Batson violation present an issue of statewide concern and first impression 

in Arizona. We have jurisdiction under article 6, section 5(3) of the Arizona 

Constitution and A.R.S. § 12-120.24.

DISCUSSION

¶6 We review a trial court’s Batson remedy for abuse of 

discretion. See United States v. Walker, 490 F.3d 1282, 1294 (11th Cir. 2007) 

(citing Batson, 476 U.S. at 99 n.24). We review questions of law de novo. 

State v. Miles, 243 Ariz. 511, 513 ¶ 7 (2018).

¶7 In Arizona, each side in a noncapital criminal case is allowed 

six peremptory jury strikes. Ariz. R. Crim. P. 18.4(c)(1)(B). After 

peremptory challenges are exercised, the court empanels the requisite 

number of jurors and alternates and then excuses any jurors remaining. 

Ariz. R. Crim. P. 18.5(g).

¶8 In Batson, the Supreme Court held that the “Equal Protection 

Clause guarantees the defendant that the State will not exclude members of 

his race from the jury venire on account of race.” 476 U.S. at 86. This 

guarantee constrains “the State’s privilege to strike individual jurors 

through peremptory challenges.” Id. at 89. Unlike challenges for cause, 

which are necessary to ensure a defendant’s trial by an impartial jury, 

peremptory challenges are “not of constitutional dimension,” United States 

v. Martinez-Salazar, 528 U.S. 304, 311 (2000) (quoting Ross v. Oklahoma, 487 

U.S. 81, 88 (1988)), and thus must yield to the defendant’s right to a jury 

chosen without racial or ethnic bias. Failure to safeguard that right “casts 

doubt on the integrity of the judicial process and places the fairness of a

criminal proceeding in doubt.” Powers v. Ohio, 499 U.S. 400, 411 (1991) 

(citation and internal quotation marks omitted). The Court also recognized 

that the right not to be excluded on the basis of race extends to the jurors 

themselves: “An individual juror does not have a right to sit on any 

particular petit jury, but he or she does possess the right not to be excluded 

from one on account of race.” Id. at 409.

¶9 Batson set forth a three-step process to determine a violation. 

First, the defendant must show purposeful discrimination, which may be 

demonstrated by circumstantial evidence of disproportionate impact, 

Batson, 476 U.S. at 93, including a pattern of strikes of jurors from the 
STATE V. URREA

Opinion of the Court

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defendant’s racial or ethnic group, id. at 96–97. “Once the defendant makes 

a prima facie showing, the burden shifts to the State to come forward with 

a neutral explanation” for the strikes. Id. at 97. If such explanation is 

offered, the trial court will then “have the duty to determine if the 

defendant has established purposeful discrimination.” Id. at 98; accord State 

v. Garcia, 224 Ariz. 1, 10 ¶ 21 (2010).

¶10 The State concedes the Batson violations. Thus, the narrow 

issue here is whether the trial court’s remedy of restoring the impermissibly 

excluded jurors to their prior places on the venire and forfeiting the State’s 

peremptory challenges was sufficient, as the State asserts, or whether the 

trial court should have declared a mistrial and begun jury selection anew 

with a different venire, as Urrea urges.

¶11 The Supreme Court in Batson and subsequent cases has not 

provided extensive guidance on appropriate remedies, but its brief 

consideration of the matter in Batson itself is highly informative, and the 

Court has not revisited it in the ensuing thirty-two years. The Court stated 

that, “[i]n light of the variety of jury selection practices followed in our state 

and federal trial courts, we make no attempt to instruct these courts how 

best to implement our holding today.” Batson, 476 U.S. at 99 n.24. 

Specifically, the Court “express[ed] no view on whether it is more 

appropriate in a particular case, upon a finding of discrimination against 

black jurors, for the trial court to discharge the venire and select a new jury 

from a panel not previously associated with a case or to disallow the 

discriminatory challenges and resume selection with the improperly 

challenged jurors reinstated on the venire.” Id. (citation omitted). We refer 

to the first approach, which Urrea seeks here, as “the mistrial option,” and 

the second, which the trial court ordered and the court of appeals approved, 

as “the restoration option.”

¶12 From Batson’s language we derive three inferences. First, in

declining to express which option was “more appropriate,” the Court 

implied that either was “appropriate.” Id. Second, the appropriate remedy

may depend on the circumstances of a “particular case.” Id. Finally, the 

restoration option contemplates that the wrongfully excluded jurors will be 

“reinstated on the venire.” Id.

¶13 Elsewhere in the decision, the Court analogized the Batson

inquiry to a discrimination claim under Title VII of the Civil Rights Act of 
STATE V. URREA

Opinion of the Court

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1964, 42 U.S.C. §§ 2000e to2000e-17, under which a very similar three-part 

test is used to determine intentional discrimination. Id. at 98 n.21; see, e.g.,

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). In that 

context, a proper remedy makes the victim of discrimination whole by 

restoring the injured party to the situation that would have existed absent 

discrimination. See, e.g., Albermarle Paper Co. v. Moody, 422 U.S. 405, 418–19 

(1975). Restoring the wrongfully excluded jurors to the positions they 

previously occupied in the venire constitutes classic make-whole relief 

because it recreates the status quo ante.

¶14 As the court of appeals recounted, Urrea, 242 Ariz. at 523–24

¶¶ 17–20, courts have taken varying approaches to Batson remedies, with 

some preferring the mistrial option, others favoring restoration, and a 

majority allowing the trial court to choose either remedy, see, e.g., State v. 

Parker, 836 S.W.2d 930, 936 (Mo. 1992) (preferring restoration to maximize 

“judicial time and resources”); State v. Jones, 358 S.E.2d 701, 704 (S.C. 1987), 

abrogated on other grounds by State v. Chapman, 454 S.E.2d 317, 320 (S.C. 1995) 

(remanding for a Batson hearing with direction to grant a new trial if Batson 

violation is found); Coleman v. Hogan, 486 S.E.2d 548, 549 (Va. 1997) 

(agreeing “with majority of states that the choice of remedy should be 

within the discretion of the trial court”).

¶15 The dividing line in many cases is whether the improper

strikes were made in the challenged jurors’ presence, which might affect 

their impartiality. See, e.g., State v. McCollum, 433 S.E.2d 144, 159 (N.C. 1993) 

(approving mistrial where jurors were exposed to the impermissible strikes 

to ensure jurors “remain unaffected by that recent discrimination, and to 

render an impartial verdict without prejudice toward either the State or the 

defendant”). Where, as here, the strikes, Batson challenges, and trial court 

ruling occurred outside the jurors’ presence, restoring the wrongfully 

excluded jurors to the venire is the preferable remedy. See, e.g., Parker, 836 

S.W.2d at 940 (noting restoration “better protects the equal protection rights 

of defendants and venirepersons and facilitates the efficient administration 

of justice”). By contrast, as we have often recognized, “mistrial is an 

extraordinary remedy.” State v. Payne, 233 Ariz. 484, 504 ¶ 61 (2013). The 

California Supreme Court observed in People v. Willis that a mistrial and 

dismissal of the venire in the Batson context may “accomplish nothing more 

than to reward improper voir dire challenges,” as the prosecutor is able to 

accomplish the purpose of wrongfully eliminating jurors. 43 P.3d 130, 137 

(Cal. 2002). Restoring the improperly excluded jurors is also the only 
STATE V. URREA

Opinion of the Court

6

remedy that vindicates the rights of jurors to serve free from discrimination, 

and it advances the right of crime victims to a speedy trial. See Ariz. Const. 

art. II, § 2.1(10).

¶16 Like the court of appeals, we do not adopt a bright-line rule 

that trial courts must follow in fashioning Batson remedies. As the Supreme 

Court has recognized, the trial court plays a “pivotal role” in the Batson

process, Snyder v. Louisiana, 552 U.S. 472, 477 (2008), and it is in the best 

position not only to evaluate the claims but also to assess the most 

appropriate remedy under the circumstances. For that reason, a deferential 

abuse-of-discretion standard is appropriate in reviewing such remedies. 

See Walker, 490 F.3d at 1294.

¶17 Nor do we construe Batson to forbid different or additional 

remedies. Given that a Batson violation is, by definition, the conscious 

exclusion of a potential juror based on impermissible criteria, Garcia, 224 

Ariz. at 10 ¶ 21, additional trial remedies such as forfeiting the misused 

peremptory challenges are also permissible, subject to abuse-of-discretion 

review.

¶18 Beyond restoring the wrongfully excluded jurors to the 

venire in this case, for instance, the trial court also forfeited the three 

challenges that the State attempted to use in a discriminatory fashion. Both 

the dissenting judge on the court of appeals and amici argue for additional 

remedies here, but Urrea waived such arguments by exclusively seeking a 

mistrial. (Nor did he preserve the state constitutional arguments advanced 

by amici.) 

¶19 We disavow any suggestion in State v. Harris that “the 

challenged jurors must be allowed to sit” on the petit (trial) jury. 157 Ariz. 

35, 36 (1988). That decision dealt only with the proper timing of Batson

challenges, not remedies. “A defendant is not entitled to be tried by any 

particular jury but only by one which is fair and impartial.” State v. Hilliard, 

89 Ariz. 129, 133 (1961); accord State v. Morris, 215 Ariz. 324, 334 ¶ 40 (2007). 

The trial court vindicated that right by restoring the improperly challenged 

jurors to the positions they would have occupied absent discrimination.

¶20 We reiterate that Batson made clear that the two remedies it 

described, mistrial or restoration, were constitutionally adequate. The 

touchstone of a minimally adequate remedy is to place the defendant in the 
STATE V. URREA

Opinion of the Court

7

position he or she would have occupied absent discrimination. We are 

satisfied that the remedy here was not an abuse of the trial court’s 

considerable discretion.

CONCLUSION

¶21 We affirm Urrea’s conviction and sentence. We vacate 

paragraphs 13–33 of the court of appeals’ opinion.