F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A N T H O N Y C A S T E L L

A N O S , Petitioner-Appellant
,

v

.

L A R R Y S M A L L , W arden, Respondent-Appellee

. N o. 12-55783

D.C. No. 2:08-cv-08177- J VS-DTB

OPI NI ON

A ppeal from the United States District Court for the Central District of California J ames V. Selna, District J udg e, Presiding

Arg ued and Submitted J u ne 2, 2014—Pasadena, California

F iled September 9, 2014

B efore: Stephen Reinhardt, J ohn T. Noonan, and Mary H. Murg u ia, Circuit J udg es.

Opinion by

J u dg e Murg uiaC A S T E L L A N O S V

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SUMMARY *

Habeas Corpus

The panel reversed the district court’s judg ment deny ing

an application for habeas corpus, and remanded with instructions to gr ant the application, in a case in which the petitioner a sserted that the prosecution eng ag ed in purposeful discrimination in v iolation of Batso n v

. Kentucky when it

ex e r cised four peremptor y strikes ag a inst Hispanic venirepersons.

After reviewing the state court’s determination of no purposeful d iscrimination with respect to t h e striking o f Venireperson 4968, tog ether with a side-by -side comparison

o f t he venirepersons at issue and the empaneled jurors, a n d other relevant circumstantial and d irect evidence of intent to discriminate, the panel concluded that the prosec u tor’s factually -erroneous stated reason for striking Venireperson 4968

– that she didn’t have children – w as p re t e x t u al. The panel concluded that the petitioner’s state court proceeding s

re s u l t e d in a decision that was based on an unreasonable determination of the facts in lig ht of the evidence presented, 28 U.S.C. § 2254(d) ( 2 )
, and that the district court therefore erred in deny ing the petitioner’s application for habeas relief.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C A S T E L L A N O S V

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COUNSEL

Gia Kim (arg

ued), Deputy F e d e r al Public Defender; Sean K

. Kennedy
, F ederal Public Defender, L os Ang eles, California, for Petitioner-Appellant.

Scott Tary

le (arg ued), Supervising Deputy Attorney General; Timothy M. W e i n e r and Stephanie C. B renan, Deputy Attorney s General ; L ance E. W inters, Senior Assistant Attorney G eneral; Dane R. Gillette, Chief Assistant Attorney General; Kamala D. H arris, A tt o r ney General, L os Ang eles, California, for Defendant-Appellee.

OP INION

MURGUI A, Circuit J udg e:

Peti t ioner Anthony Castellanos was convicted in California state court o f murder, assault with a firea r m , a nd
street g ang solicitation. O n direct appeal
, the California Court of Appeal af

f i r med Castellanos’s convictions, concluding that the prosecution h ad not eng ag ed in purposeful discrimination in violation of Batson v. Kentucky
, 476 U.S. 79 (1986), when it ex ercised f our peremptory strikes
ag ainst Hispanic venirepersons. The d istrict court denied Castellanos’s a p p lication for habeas relief. B ecause we conclude that Castellanos’s state court proceeding s “resulted in a decision that was bas e d o n an unreasonable determination of the facts in lig ht of the evidence presented,” 2 8 U.S.C. § 2254(d)(2), we reverse the district court’ s judg ment and remand with instructions to g rant Castellanos’s application.C A S T E L L A N O S V

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I.

Petitioner A nthony Castellanos, who was 17 y ears old at the time of the incident g iving rise t o this case, was a t his apartment with his 1 1-y e ar

- o ld and 1 2-y ear-old neig h bors, J oey and Nicky

. Caste llanos w as try ing to recruit Nicky to joi n his g ang , the King Kobras, but Nicky had previously refused. Castel l a n o s , who had been cooking F rench fries in the kitch e n , walked into the living room w here Nicky was sitting on the couch, p ulled a g un from h is waist, and pointed it at J oey a

nd Nicky

. J oey du c k e d
, fearful of what mig ht happen. Castellanos then turned and pointed the g un directly
at Nicky
, put his fing er on the trig g e r , and said, “W h at do y ou think about this? ” He fired, shooting Nicky in the head.

Castellanos was charg ed in L os Ang e les County Superior Court w ith murder, see Cal. Penal Code § 187(a), assault with

a firearm, see Cal. Penal Code § 245 ( a )
, a nd street g ang solicitation, see Cal. Penal Code § 186.26(a). On the murder and assault charg es, the g overnment’s i n f o r mation alleg ed that Castellanos had personally used a f i r earm, and o n the assault charg e, it alleg ed that h e committed the offense for the benefit of a criminal street g a n g. Castellanos pleaded not g uilty to all charg es and proceeded to a jury trial.

A.

V o i r d ire took place in March 2005. After t h e venirepersons were introduced to the parties and the potential

w i t n e s s e s , t h e p r o s e c u t o r b e g a n q u e s t i o n i n g t h e venirepersons. He started by asking each venirepe r s on to

answer “the questions on the b oard,” which a ppear t o have beenC A S T E L L A N O S V

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(1) W here do y

ou live?

(2) W hat is y our occupation?

(3) A re y ou married; if so, what is y o u r spouse’s occupation?

(4) Do y o u have adult c hildren; if so, how
many ?

(5) Have y

ou ever sat on a jury ?

I n total, 29 venirepersons were questioned. 1 I n some instances, after a venireperson had answered the q uestions on the board, the prosecu t o r would follow up b y asking additional questions, such as t he occupations of the venireperson’s adult children, the t y p e o f c ase ( civil o r criminal) on which the v enireperson s a t as a juror, a nd whether that jury

had reached a verdict.

After e ach venire p e r s on had answered the questions directed specifically to him or her, the prosecutor p osed additional questions to the g roup. T h ose questions included,

as is relevant to this appeal, (1) w hether any venireperson was “related to o r

. . . ha[ d] close friends in law enforcement,” (2) whether a n y venireperson or a relative “ha[ d]

. . . ever

1 T h e p ro secu to r b eg an by q u estio n in g 1 8 j u ro rs, 1 2 o f w

h o m w ere seated in th e m ain j u ry b o x a n d 6 o f w h o m w ere seated in th e area d esig n ated

f o r altern ate j u ro rs. If

a v en irep erso n

seated in th e m ain

j u ry b o x w a s e x cu sed
, th e co u rt m o v ed a v en irep erso n f ro m th e area d esig n ated f

o r altern ate j u ro rs to rep lace th e ex cu sed v en irep erso n in s id e th e b o x

. A f

ter all 6 v en i rep erso n s seated i n th e altern ate j u ro r area h ad b een eith er ex cu sed o r m ov ed
, th e co u rt called 6 m o re v en irep erso n s to f i l l th eir seats an d an sw er th e sam e q u estio n s.C A S T E L L A N O S V

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been v ictims of a cr i m e,” (3) whether any venireperson o r relative had “e ver been charg ed w ith or arrested for an offense,” and (4) whether any venireperson was “ f a m i liar with g ang s o r criminal st re et g ang s.” The p rosecutor concluded by asking whet h er “there [ is] any thing that y ou believe is important to disclose at this time that has n ot y et been asked that wo uld affect the impartiality or sitting a s a juror on this case? ” Over t h e course of questioning
, the prosecutor elicited the f

o llowing information from each of the venirepersons at issue in this appeal.

Venirewoman 4968 (

Seat 2)

Venirewoman 4968 was a Hispanic f emale from Santa F e Spring s, California. She worked for a bread company

. At the time of trial, she was divor c e d a nd had two adult children. 2 One of her children—her daug h ter—did not work at the time, and h er son worked for “ ex port mag az i n e s ” in “ [ a] lot o f cities.” Her ex -husband worked for B oeing, and she h ad never before served on a jury

. Venireman 3693 (

Seat 5)

Venireman 36 9 3 was a Hispanic male from L a Puente, California. H e worked as a sales m a n for B e rnard and Sons,

an electrical product retail com p a n y

. His wife worked as a day care provider for L a Puente Unified School District. At

2 T h ere is so m e am

b ig u ity in th e t

ran s crip t as to w

h eth er Ven irew o m an 4 9 6 8 h ad t

w o ch i ld ren (b o th ad u lt) or f o u r ch ild ren (tw o a d u l t an d tw o

“ k id s ”). V en irew o m an 4 9 6 8 in itially stated
, “ I h av e tw o g irls, k id s.” T h e p ro secu to r resp o n d ed b y ask in g , “ A n d w h at are th e o ccu

p atio n s o f y ou r ad u lt ch ild ren , y o u r ad u lt ch ild ren ? ” Ven irew o m an 4 9 6 8 an sw ered
, “ My d au g h ter, s h e do esn ’ t w o rk

. An d m y s o n w o rk s

. . . f o r th e [ex p o rt

m ag azin es].” T h e am

big u ity d o es n ot af

f ect th e o u tco m e o f

th is case.C A S T E L L A N O S V

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the time of trial, h e h a d no adult children and had never before sat on a jury

. Venireman 6963 (

Seat 12( A) )

Venireman 6963 was from Montebello, California, a nd worked as a store m a n a ge r for a Van’s store. His wife worked as an office manag er for an optometrist’s o ffice. He had once before sat on a jury in a criminal case; the jury had

r e a c hed a verdict in that case. Venireman 6963 did n o t

answer the question whether he had any adult children, a nd the prosecutor did not follow u p o n h i s failure to do so. During g roup questioning
, Venireman 6963 informed the

c o u r t that h is “brother was a g ang member for a long time
, ” and tha t “ n o w [ h is brother is] a pastor and g oes to jail n ow and helps.” He also stated that he did n ot think that would “cause [ him] not to be a fair or impartial juror in this case.”

Venireman 5816 (

Seat 12( B) )

Venireman 5816 was a H ispanic male who worked for APL L og istics in W est Covina, California. H e w a s sing le, did not h ave adult children, and ha d never before sat on a jury

. During g roup questioning
, he informed the court that he “ha[ s] family and friend s i n gang s.” H e did not think that would affect his ability

to be impartial in this case.

Ea c h party was allowed twenty peremptory strikes. See Cal. Civ. Proc. Code § 231(a). Twelve members of the venire occupied the m a i n j u r y box at a ny g iven time; a new venireman w ould enter the main jury box each time a n o t h er

was ex c used. A t the o u t set, at least five of the twelve venirepersons seated in t h e main jury box were Hispanic. T h e prosecutor used six peremptory strikes, four of w h i c hC A S T E L L A N O S V

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were ag ainst the Hispanic venirepersons d e s cribed above, before defense counsel made the B a tson / W heel e r motion at issue in this appeal. 3 At the time of the motion, seven of the twelve venirepersons seat e d i n the main jury b ox were Hispanic, and the prosecuti o n had 14 peremptory strikes remaining

.

W h en d efense counsel made the Batson motion, he contended that “the prosecutor [ was] ex e rcisin g h i s challeng es to ex clude mainly p e o p l e of Hispanic descent.” Th e p arties a

nd the court then e ng ag ed in the following colloquy

.
[ DEF E NSE COUNSEL ] : [The prosecutor]

ex e rcised – he ex c l u d e d j u ror No. 2, was a female H i s p anic. He e x cluded juror No. 5, who w as a Hispanic male. He ex cluded juror No. 12, who was a Hispanic male. He

ex c luded juror No. 1, 2, 3
, 4 people based on race, two Ang los, and I will submit the matter.

THE COURT: All rig ht. People.

[ PROSECUTOR] : Your Honor, the way the

cu rr e nt law is, the Court h as to find a prima facie showing

.

3 A W h eeler m o tio n , estab l ish ed in Peo p le v. W h eeler
, 2 2 C a l

. 3 d 2 5 8 (1 9 7 8), is th e Calif

o rn ia an alo g u e o f a m o tio n u n d er Ba tso n v. Ken tu cky
, 4 7 6 U.S. 7 9 (1 9 86 ). S

ee Alema n v. Urib e , 7 2 3 F .3 d 9 7 6 (9 th Cir. 2 0 1 3 ),
cert. d en ied
, 1 3 4 S. Ct. 9 03 (2 0 1 4 ). T h ro u g h o u t th is o pin io n , w e ref er to Castellan o s’ s m otio n as a Ba tso n m o tio n , alth o u g h tech n ically it w as m ad e

u n d er W h eeler

.C A S T E L L A N O S V

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THE COURT: W ell, there are four Hispanics

ex c used.

[ PROSECUTOR] : The last juror had friends

–
THE COURT: He had friends in g ang s.

[ PROSECUTOR] : I n g ang s.

THE COURT: That’s the reason? Okay

.
[ PROSECUTOR] : L et’s see. W hat oth er individuals?

THE COURT: W ell, No. 2 was 4968. W a s that a Hispanic female?

[ DEF E NSE COUNSEL ] : Yes.

THE COURT: 4968?

[ PROSE C UT OR] : I have that as a f emale white.

THE COURT: 4968 was the name.

[ DEF E NSE COUNSEL ] : She was Hispanic.

. . . .
[ PROSECUTOR] : 4968 – I thoug h t the
person was white, but reg ardless, the pers on, she d i d n’t have any children. The victim in here is g oing to be a child testify ing
, so I w antC A S T E L L A N O S V

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jurors to understand children, so I ’ve kicked a lot of jurors who don’t h ave c hildren, and she had no children.

As far as the –

W hich one is the n ex t one that is b e i n g contested?

THE COURT: Ig uess 5816, 12.

[ DEF E NSE COUNSEL ] : No. 5 as well.

[ PROSECUTOR] : I s the fifth one? The fifth one I kicked, was the one in g a ng s.

THE COURT: No. He’s talking about juror No. 5, 3693.

[ DEF E NSE COUNSEL ]: 4 This person h ad trouble following didn’t appear t o b e pay ing attention when I was asking questions a nd stuff. This was the person that was up on –

THE COURT: On top.

[ PROSECUTOR] : Rig ht. And t h at person also had no children
, b u t that was more because the p erson didn’t appear to be following directions, was kind of sitting there,

4 T h e parties d i s p u t e w h eth er th e t ran s crip t is co rrect th at d ef en s e

co u n sel, as o p p o sed to th e p ro secu to r, m ad e th is statem en t.C A S T E L L A N O S V

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and that’s why I had to ask him specifically
, “Are y ou shaking y our head ‘y

es’ or ‘no’? ”

W h at’s the nex t one? I s there another?

[ DEF E NSE COUNSEL ] : I think juror No. 12, we’ve already

discussed that. That’s it.

THE COURT: All rig ht. T he motion is denied.

The court then continued with v o i r dire until the parties accepted the empaneled jury

. I n the end, the prosecution h ad

ex e r cised 12 o f i t s 20 peremptory strikes, leaving 8 u nused. After the jury was empaneled, the court noted that, “o f t h e twelve [ empaneled] jurors, seven are Hispanics, there are four Caucasians, and one Asian.”

B.

A jury convicted Ca s t ellanos of second-degree murder, assault with a firearm, and stree t ga ng solicitation. He was sentenced to 2 5 y ears to life in state p rison. On direct appeal of his judg ment of conviction, Castellanos assig ned error to, among other t h i n gs, the state trial court’s order deny ing his Batson motion. The California Court o f Appeal affirmed the convictions in a written opinion, noting
, with respect to t h e Batson issue, that “[ t] he trial court’s d etermination is entitled
to considerable deference bec a use of the court’s knowledg e of local conditions and loca l prosecutors, p owers o f observ ation, understanding o f trial techniques a nd judicial

ex p erience.” P eople v. Castellanos , 2007 Cal. App. Unpub. L EXI S 7397, at *14 (citin g People v

. Trevino
, 55 Cal. App. 4th 396, 402 (1997))

. T h e court of appeal held thatC A S T E L L A N O S V

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Castellanos had “fai l ed to demonstrate error in the trial court’s ruling .” Id. The California Supreme Court deni e d C astellanos’s petition for review. People v. Castellan o s , 2007 Cal. L EXI S 13708, at *1.

C.

I n D ecember 2008, Castellanos timely applied f or h abeas

re l i e f i n the U.S. District Court for the Central District o f California. 5 After directing the parties to submit briefing on the question whether C a s t ellanos was entitled to an evidentiary hearing on his Batson claim, the mag istrate judg e issued an order stating that the California Court of Appeal’s decision was “ contrary to” c learly e stablished federal law a nd that, a s a result, AEDPA di d not p reclude an evidentiary hearing

. S

ee 28 U.S.C. § 2 254 (d ) (1) (prohibiting h abeas relief unless the state-court adjudication of the applicant’s claim “resulted in a decision that was contrary to

. . . clearly

e s t a b lished F ederal law, as d etermined b y the Supreme Court”); Cullen v. Pinholster
, 131 S. C t

. 1388, 1398 (2010) (prohibiting an evidentiary hearing u n d er § 2 254(e) unless § 2254(d) is satisfied). I n the sam e o r d e r , the court invited the State to “ aug ment t h e r e cord by providing the prosecutor’s a ctual reasons f or dismissing J uror Nos. 4[ 9] 68 and [ 36] 9 3 to avoid the adverse inference that may flow from the r e c ord as it stands,” and invited Castellanos to “ present

a d d i t ional statistical or other evidence to meet his ultima t e burden of proving

discrimination.”

I n response to the court’s i nvitation, the State submitted

a d e c l a ration from L os Ang eles County Deputy District Attorney Sean Coen, the prosecutor at Castellanos’s criminal

5 Castellan o s did n o t seek p o s t- co n v ictio n relief in Calif o rn ia s tate co u rt.C A S T E L L A N O S V

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trial, in an effort to more c learly e x p lain his reasons for striking V enirepersons 4968 a nd 6963. At a status conference that took place after the State filed Mr. Co en ’ s d eclaration,
t h e mag istrate judg e g r anted limited discovery on “mat t e rs relating to the jury selection p rocess” at Castellano s’s criminal trial. The judg e then initially g r anted an evidentiary hea ring on those matters, but later vacated the hearing
, finding it unnecessary after the parties l o d g ed, u nder seal, records fr om the California Department of Motor Vehicles (DMV) showing ph o tog raphs o f each venireperson. The
mag istrate judg e took the matter u nder consider a t i on using the parties’ pleading s, Mr. Coen’s declaration, and the D MV records.

I n his Report and Recommendation, the mag istrate judg e recommended that the distr i ct c ourt deny Castellanos’s application f

or hab e as relief. The judg e first concluded that the California Court o f Appeal, by re l y i ng on People v

. Trevino
, “applied an incorrect standard of proof.” The judg e therefore concluded, as he had before, t h at the state trial court’s decision was “contrary to” clearly established federal law, see 2 8 U.S.C. § 2254(d)(1), thereby permitting the court to r eview de novo Castellanos’s Batson claim. Reviewing de
novo, the mag istrate judg e concluded that, considering the parties’ pleading s, Mr. Coen’s declaration, the D MV records, and t h e totality of the circumstances as to each e x cused venireperson, the prosecutor ha d n o t acted with purposeful discrimination in violation of B a tson

. The district court accepted, with only one ex ception n ot relevant to our resolution of this case, the f inding s, con c l u s i o ns, a

nd recommendations of the mag istrate judg e, and denied Castellanos’s a

pplication for habeas relief. The court g ranted a certificate of appealability “with respect to [ Castellanos’s] claim that the p rosecutor’s discriminatory use of p e remptoryC A S T E L L A N O S V

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challeng es to ex clude Hispanic prospect ive jurors violated his federal c onstitutional rig ht under the F o urteenth Amendment, pursuant to Batson v. Kentucky .” W e now co n s i d e r that claim.

II.

W e revie w de novo a district court’s order d eny ing an application f

o r h a b e as relief. Murray v. Schriro
, 745 F .3d 984, 996 (9th Cir. 2014). W e are limited, howev e r , b y the deference requi r e d under A EDPA, which bars relief unless the underly

ing state court proceeding s either (1) “resulted in

a decision that was contrary to, o r involved a n unreasonable application of, clearly established F ederal law, as determined by the Supreme Court of the United States,” or (2) “resulted in a decision that was based o n an unreasonable determi n a t i o n of the facts in lig ht of the evidence presented in the State court p roceeding .” 28 U. S.C. § 2254(d). I n conducting our analy sis under AEDPA, we must look to the last reasoned state-court decision, Murray
, 745 F .3d at 996; where “no state-court decision furnishes a basis for the state court’s u nderly ing r easoning
, ” we must “eng a ge in an ‘independent review of the record’ and a scertain whether the
state court’s decision was ‘objectively unreasonable,’ ” id. at 9 9 6

– 9 7 ( quoting W

alker v. Martel
, 709 F

. 3 d 925, 939 (9th Cir. 2013)).

A.

W e must first determine which state-court decision serves

as the b asis for our review. Under AEDPA, when more than

one state court has adjudicated the a pplicant’s claim, we must look to the last “reasoned” decision. Barker v. F le ming
, 423 F .3d 1085, 1091 (9th Cir. 2005). Thus, a state supremeC A S T E L L A N O S V

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c ourt’s summary denial of discretionary review, whi c h
g enerally does not state a reason f o r t h a t denial, is not a

“ r e asoned” decision under AEDPA, and we must “l o o k throug h” that unex plained decision to t h e l a st state c ourt to have provided a “reasone d ” decision. Y lst v. Nunnemaker
, 501 U.S. 797, 806 (1991).

I n this case, the Californi a C o u rt o f Appeal was the last
state court to issue a d ecision ex plaining the basis for the trial

c ourt’s denial o f Castellanos’s Batson challeng e. Th at decision, while it does not en ga ge in a comparative juror analy sis of the evidence presented in the trial court, c ontra Murray
, 7 45 F .3d at 1 0 0 6
, i s not wholly unex p lained, see Y lst
, 501 U.S. at 806. I t theref ore constitutes the last “reasoned” decision for AEDPA purposes and may form the basis o f our review. Cf. Jamerson
, 713 F

. 3 d a t 1 2 23, 1226 (reviewing a “reasoned” decision of the Californ i a C ourt o f Appeal in which the court “declined to conduct a comparative juror analy sis,” “[ l] ist[ ed] the reasons that t h e p r osecutor proffered for striking each black juror [
, ] a nd ultimately deferr[ ed] to the trial court’s independ e nt assessment o f the prosecutor’s credibility

”).

B.

W e turn, therefore, to the district court’s conclusion that the California Court of Appeal’s decision on direct appeal o f Castellanos’s j u d gm en t o f conviction was “ contrary to

. . . clearly established F e deral law, as de termined by the Supreme Court of the United States.” 28 U

. S

. C. § 2254(d)(1). A state court d ecision is contra r y t o c learly established federal law if it “applies a rule that contradicts the
go v erning law set forth in [ U.S. Supreme Court] case s ” o r arrives at a differe n t r e s u l t in a case that “confronts a set o fC A S T E L L A N O S V

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facts that are materially

indisting uishable from a decision of [ the Supreme] Court.” W illiams v. Taylor
, 5 2 9 U

. S

. 362, 405–06 (2000). I f the state court applies a leg al standard that contradicts c learly established f ederal law, we review de novo the applicant’s claims, apply ing the c o rrect leg al standard to determine whether the applicant is entitled to relief. Cooperwood v. Cambra
, 245 F .3d 1 042, 1047 (9th Cir. 2001).

The “ clearly established fed e r a l law”—in other words, the “ ‘g overni n g leg al principle o r principles set forth by the Supreme Court a t the time the state c ourt render[ e d] its deci s i on,’ ” Xiong v. Felker
, 681 F .3d 1 067, 1073 (9th Cir. 2012)—central to this case is Batson v. Kentucky
, 476 U .S. 79 (1986). The Batson framework is well established: F irst, the defendant must make a p r i m a f a c ie showing of purposeful discrimination by “showing that the totality of the relevant f acts g ives rise to a

n inference o f discriminatory purpos e

. ” 4 76 U.S. at 9 3–94. T h en, the “burden shifts to the S t a t e t o

ex p lain adequately the r acial ex clusion ” by offering raceneutral justifications f

o r t h e strikes. Id. at 94. F inally
, the
court must decide, in lig ht of the race-neutr al justifications offered by the State, whether the State eng ag ed in purposeful discrimination when it ex ercised the peremptory strike. Id. at 98. As noted, the California Supreme Court’s decision in W heeler is the California analog ue to Batson ; today
, the two

are p r ocedurally equivalent. Fernandez v. Roe
, 286 F .3d 1073, 1075 (9th Cir. 2002).

W h en W h eeler was decided in 1978, however, it imposed

on defendants a hig her burden to establish a prima f acie case of p urposeful discrimination than that required under Batson

. W heeler compelled a de f

en d a n t a t step one to e stablish a “s trong likelihood,” as opposed to a mere inference, o f purposeful d iscrimination on the part of the State. 22 Cal. 3dC A S T E L L A N O S V

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at 2 80. I n Johnson v. California
, 545 U.S. 162, 173 (2005), the U.S. Supreme Court abrog ated that portion of W heeler
, holding that the F ede r a l C o n s t itution precludes the imposition of such a heavy burden at step one. Thus, the clearly established federal law ex isting in 2007, when the California Court of Appeal issued its decision on appeal of Castellanos’s judg ment o f conviction, w as Batson as clarified by Johnson

.

Castellanos contends that the district court was correct to conclude that the California Court of A ppeal’s decision was “contrary to” clearly established federal law because the California court cited People v

. Trevino
, a pre- Johnson case apply ing W

heeler ’s “strong likelihood” standard at Batson ’s step one. According to Castellanos, the California state court’s mere citation t o T r e vino shows not only that it “affirmed the trial c ourt’s de n i a l of the Batson / W heeler

m o t i o n at step one of the Batson analy sis,” but also that i t “held Mr. Castellanos to a hig h er standard than that r equired by Batson itself.” Castellanos therefore u rg es us to review de

novo the California state court’s reso l u t i o n of his Batson claim.

W e read the state court’s decision differently
, how e v e r. Althoug h the California court cited Trevino
, w h ich we acknowledg e is a pre-

Johnson c ase , i t is apparent from the
state court’s decisio n that it did not cite Trevino for the proposition that Castellanos attributes to it. Rather, the court cited Trevino f

o r the proposition that “[ t] he trial court’s determination is entitled to considerable deference because o f the court’s k

nowledg e of local conditions and local prosecutors, powers of o bse r v a tion, understanding o f trial techniques and judicial ex perience.” Castellanos
, 2007 Cal. App. Unpub. L EXI S 7397, a t * 1 4

. I n deed, the w ording the California court used tracks, almost verbatim, the wording o fC A S T E L L A N O S V

. S M

A L L 18

Trevino in that respect. B ecause citing T r e v i no for the proposition that the trial court should be afforded d e fe rence is not contrary to clearly established federal law, c f. Hernandez v

. New Y

ork
, 500 U.S. 352, 365–70 (1991)
, we conclude that the state court proceeding s did not “resul[ t] in

a decision that was contrary to, or involved an unreasonable application of, c l e arly established F ederal law.” See 28 U.S.C. § 2254(d)(1). 6

C.

T h at the California Court o f Appeal’s decision was n o t “contrary to” clearly e stablished federal law does not e nd our inquiry
, however. “Once we conclude that the trial court has conducted an adequate inquiry under Batson
, our r eview must sh i f t f r om § 2254(d)(1) to a review of the r easonableness o f the state court’s factual determinations under § 2254(d)(2).” Murray
, 7 45 F .3d at 1006 (citing Jamerso n , 7 1 3 F .3d at 1225–26).

Neither party appears to dispute that Castellanos satisfied his burden to m a k e a prima facie showing of purposeful

6 T h e Calif

orn i a C o u r t o f A

p p eal’ s d escrip tio n o f th e co llo q u y th at

o ccu rred at trial af

ter Castellan o s m ad e h i s Ba tso n m o tio n co m pels th e

sam e co n clu sio n

. T h at descrip tio n m ak es clear, f o r ex am p l e, th at th e

co u rt o f ap p eal read th e t rial co u rt’ s statem en t th at “ W ell, th ere are f ou r Hisp an ics ex cu sed ,” to b e a statem en t in r e s p o n s e to th e pro secu to r’ s req u est th at th e co u rt f

irst f in d t h a t C a stellan o s h ad m ad e th e req u isite
p rim a f acie sh o w in g at Ba tso n ’ s step o n e. See Ca stella n o s , 20 0 7 Cal. A p p. Un pu b

. L EXIS 7 3 9 7
, at * 12 (“ T h e p ro secu to r n o t e d t h at t h e t rial

co u rt n eed ed to f

in d a p rim a f

acie sh o w in g , an d th e co u rt said
, ‘ W ell, th ere are f o u r Hisp an ics ex cu sed .’ ”). A t t h at p o in t, th e co u rt o f ap p eal did

n o t cite Trevin o , n o r d id it n eed to : th e co u rt w as n o t disp o sin g o f t h e case at step o n e. T h e v ery f

act th at th e co u rt o f

ap p eal reach ed Ba tso n ’ s step th ree su g g ests th e sam e.C A S T E L L A N O S V

. S M

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discrimination, as is required a t Batson ’s step one. After he

m a de that showing
, the burden shifted to the prosecutor t o offer race-neutral justifications for each c h a l l eng ed strike. Those justifications need not have been “persuasive, o r even plausible”; at the second s t ep o f Batson
, “the issue is the facial validity of the p r o s e c utor’s ex p lanation.” P u rkett v

. Ele m , 514 U.S. 765, 768 (1995) (internal q uotation marks omitted). The s t a t e trial court was then required, at step three, to eva l u a t e the “persuasiveness” of the prosecutor’s articulated r easons, Miller-El v. Cockrell
, 537 U.S. 322, 338, 339 (2003) (

Miller-El I

), a n d “determine w hether the defenda nt ha[ d] established p urposeful discrimination,” Batson
, 476 U .S. a t 98. Pursuant to Batson
, the trial court

was oblig ated to “undertake a sen s i t ive inquiry into such circumstantial and d i rect e vidence of intent as may be available.” Id

. at 93. “Side-by -side com p a ri s ons” of the venirepersons who were struck and t h o s e who were empaneled may serve as helpful “evide n c e tending to prove purposeful discrimination.” Miller-El v. Cockr e l l
, 545 U.S. 231, 241 (2005) (

Miller-El II

).

W h ere, as here, the trial c ourt did not undertake a formal comparative juror analy sis in the first instance, we must do so

on collateral r eview. M

urray , 745 F .3d at 1004–07. O u r analy sis u nder § 2254(d)(2) of the state court’s order deny ing Castellanos’s Batson motion is therefore t w o f o l d. See Jamerson , 713 F .3d at 1225.

To beg in, we must perform in t he first instance the comparati v e analy sis that the
state court d eclined to pursue. Then, we must reeval u ate the ultimate state decision in lig ht of this comparative analy sis and any other

e v i d en c e t e n d i n g t o s h o w pu r p o s e f u lC A S T E L L A N O S V

. S M

A L L 20

discrimination to d ecide whether the state was unreasonable in finding the p r osecutor’s raceneutral justifications to b e g enuine. I n

e s s e n c e , w e m u s t a s s e s s h o w a n y

c i r c u m s t a n t i a l e v i d e n c e o f p u r p o s e f u l discrimination u ncovered during comparative analy sis alter s t he evidentiary balance a nd wh ether, considering the totality of the

e v i d en c e , t he state c o u r t ’ s c r e d i b i l i t y d e t e r m i n a t i o n w i t h s t a n d s o u r d o u b l y deferential review.

Id. a t 1225–26. B ecause our inquiry under § 2 2 5 4 ( d ) ( 2) is limited t o the “evidence presented in the State court proceeding
, ” we cannot consider the p ost hoc justifica t ions offered by D eputy District Attorney Coen. See Pinholster
, 131 S. Ct. at 1400 n.7. 7

On review, Castellanos takes issue with th e state trial court’s determination of no purposeful d i scrimination with respect to Venirepersons 4968, the Hispanic female f r o m Santa F e Spring s; 3693, the Hispanic male from L a Puente; and 6963, the Hispanic male from Montebello. H e contends that the California Court of Appeal’s decision on direct appeal was “based on an unreasonable determi n ation of the facts in lig ht of the e v i dence presented in the State court proceeding

. ” 28 U.S.C. § 2254( d ) ( 2 ). Reviewing the state court’s determination tog ethe r with a “[ s] ide-by -side compariso[ n] ” o f the venirepersons at issue and the empaneled jurors, see Miller-El II
, 545 U.S. at 2 41, and other,

7 W e can co n sid er th e DMV reco rd s , h o w ev er. S ee Ja merso n , 71 3 F.3 d at 1 2 2 6 (h old in g th at Pin ho lster d o es n o t b ar “ co n sid eratio n o f ev id en ce d esig n ed to reco n stru ct th e racial co m p o s itio n o f th e j u ry v en ire”).C A S T E L L A N O S V

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r e levant “ circumstantial and direct evidence of intent” t o discriminate, see Batson , 486 U.S. at 93, we ag ree.

W e beg in and end our analy sis with Venirewoman 4968. 8 At trial, the prosecutor stated that he struck Venire wo m a n 4968 because

she d idn’t have any children. The victim here is g oing to be a child testify ing
, so I w ant jurors to u nderstand children, so I ’ve kicked a lot of jurors w ho don’t have children, and she had no children.

That r eason, as the district court noted, is b e l i e d by the record. Venirewoman 4 9 68 stated, i n re s p onse to the only question that she a

nd the other p ot e n t i al jurors had been asked, that she had two a dult children. The prosecutor t h en asked about the occupations o f her adult c h i l d ren, and she answered. T hus, unless the totality of other relevant circumstances in this case sug g ests a contrary conclusion, the prosecutor’s f

actually erroneous rea s on can be construed a s pretex tual. See McClaim v. Prunty
, 217 F .3d 1209, 1221 (9th Cir. 2000) (“W h ere the facts in the r ecord are objectively contrary to the prosecutor’s statements, serious questions about the leg itimacy of a prosecutor’s reasons for ex ercising peremptory challeng es are raised.” (citing Caldwell v

. Maloney , 159 F .3d 639, 651 (1st Cir. 1998))).

Relevant c ircumstantial evidence tends only to f urther undermine the prosecutor’s credibility
, however. A side-by

8 Un d er Ba tso n , “ th e elim in atio n o f ev en a s in g le j u ro r” b ased o n race d em an d s a retrial. Gre e n v. L a Ma rq u e , 5 3 2 F.3 d 1 0 2 8
, 1 0 29 (9 th Cir. 2 0 0 8 ).C A S T E L L A N O S V

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side comparison, for e x a m p le, of Venirewoman 4968 to members of the empaneled jury sug g ests that the prosecutor’s race-neutral justification for r emoving Venirew o m a n 4968

was pretex tual. Three other venirepersons who also had no adult children—J urors 7707, 7107
, and 8243—were ultimately permitted to serve o n the jury

. Moreover
, o n e o f the e m p aneled jurors, J u ror 0 373, didn’t even a nswer the question a b o u t whether he had adult children, and the prosecutor never followed up to clarify

. Cf. Miller-El II
, 545 U.S. at 246 (discrediting the prosecutor where h e “ asked nothing f urther about the influence his brother’s history mig ht have

. . . as [ h e] probably w ou l d h a v e d o ne if the family history had actually

mattered”).

B u t even if the prosecutor’s credibility weren’t f urther

un d e r m ined by that side-by -side c omparison, the prosecutor’s
q u e s t i o n

— w h e t h e r t h e v e n i r e p e r s o n s h a d “ a d u l t children”—itself lends little support f o r his p roffered justification. The question whether the venireperson h ad “adult c hildren” seems a rather odd way of g etting at what the
prosecu t o r p urportedly soug ht to identify : w hether the venireperson had ex perience with y oung children l i k e the child witness who planned t o testify

. 9 I f the prosecutor’s
purpose truly was to determine which venirepersons c ou ld “understand children,” a broader initial question—for

ex a mple, “Do y ou have any children? ”—would h ave better served that purpose. See Jamerson
, 7 12 F .3d at 1229 (noting that the r eason f

o r a peremptory strike must be “relevant”; that is, t h e p rosecutor must “ex press a believable a nd articulable connection between the race-neutral characteristic identified and the desirability of a prospective juror”). As the

9 T h e v ictim ’ s b ro th er, J o ey , t estif ied at t r ial. He w as 1 2 y ears o ld at th at tim e.C A S T E L L A N O S V

. S M

A L L 23

Supreme Court has stated, “The State’ s f a i l ure to eng ag e in
any meaning ful voir dire ex a minati o n on a subject the State alleg es it is concerned about is evidence sug g esting that the

ex p lanation is a sham and a p retex t for discrimina t i o n

. ” Miller-El II

, 545 U.S. at 246.

Two additional pieces of circumstantial evidence a re relevant to o ur analy sis of the prosecutor’s decision to strike Venirewoman 4968. F irst, as the California Court of Appeal noted in its opinion, the state trial court obs er v e d that “[ i] t appears

. . . that of the twelve jurors, seven ar e Hispanics, there are four Caucasians, and one Asian.” Castellanos
, 2007 Cal. App. Unpub. L E X I S 7 397, at *14 n.9. Our cases have acknowledg ed that the composition of the empaneled jury is relevant to the Batson inquiry

. See Turner v

. Marshall
, 121 F .3d 1248, 1254 ( 9th Cir. 1997). Those cases have also cautioned, however, that that fact, without more, is insufficie nt to overcome the prima facie showing o f purposeful discrimination that Castellanos already made, a nd cannot “salvag e [ the prosecutor’s] d iscredited justification.” See id. (“[ A] lthoug h the f

a c t that the prosecutor accepted four African Americans on the jury may be considered indicative of a nondiscriminatory moti v e , it is not dispositive. W here the prosecutor’s ex p lanation f or striking a minority juror is unsupported b y the record, empaneling other minority jurors will not salvag e her discredited justification.”).

The second p iece of e vidence is the fact that the prosecutor e x ercised o nly 12 o f his 20 total p e remptory strikes, leaving 8 unused. We have previously held that “the willing ness of a prosecutor to accept minority jurors weig hs
ag a i n s t a finding of a prima facie case.” United S tates v

. Chinchilla
, 8 74 F .2d 695, 698 n.4 (9th Cir. 1989) (c i t i n g United States v. Montgomery
, 819 F

. 2d 847, 851 (8th Cir.C A S T E L L A N O S V

. S M

A L L 24

1987), for its holding that the petitio n e r had not e stablished

a prima facie case of purposeful discrimination when “the
g overnment

. . . could h ave used its remaining p e remptory challeng es to strike” additi o nal minority venirepersons but declined to do so). Thus
, where the prosecutor declines to

ex e r cise additional pe r emptory strikes, permitting minority venirepersons ultimately to serve on the jury

, the prosecutor’s doing so may p roperly b e considered in d etermining whether his earlier strikes were discriminatory

. Id. B u t just as is the

case with the composition of the empaneled jury

, the number of peremptory strikes the p ros e c u t o r fails to u se after a Batson motion has been made cannot alo n e undermine a showing of purposeful discrimination. See, e

. g

. , Burks v

. Borg
, 27 F .3d 1424, 1429 ( 9th Cir. 1 994); Palmer v. Estelle
, 985 F

. 2 d 456, 458 ( 9 t h C i r

. 1993). A nd, even when the remaining strikes are considered tog ether w i t h the composition of the empaneled jur y , the two facts do not

overcome a petitioner’s already e stablis h e d showing o f purposeful discrimination. See Turner
, 1 2 1 F

. 3d at 1254, 1250 ( reversing a district c o urt’s o rder deny ing an a pplication for habeas relief even where four African Ame r i c a ns were empaneled a

nd the prosecutor left unused 11 p e remptory strikes).

W e a cknowledg e that, under AE D P A
, o ur review is “doubly deferential.” Jamerson
, 713 F .3d at 1226. W e also acknowl e dg e that, u nder Batson
, intent to d iscriminate is an issue of fact that “larg e ly will turn o n an eva luation o f credibility .” 476 U.S. at 98 n .21; s e e also Hernandez
, 500 U.S. at 364–65 (“There will seldom be m u c h evidence bearing on [ the issue of purposeful discriminat ion]
, a nd the best evidence often will be the demeanor of the attorney w ho

ex e r cises the challeng e

. . . . [ E] valuation of the prosecutor’s
state of mind based o n d emeanor and credibility liesC A S T E L L A N O S V

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A L L 25

peculiarly within a trial judg e’s province.” (internal quotation marks omitted)). B ut where, as he r e , our comparative juror analy sis reveals such sig nificant evidence of p retex t, our

cases requir e u s to conclude that the state court’s finding to the c ontrary amounts to a n “u nreasonable d etermination o f the facts in lig ht of the e v i d e n c e presented.” 28 U .S.C. § 2254(d)(2); see also Johnson v. V asquez , 3 F .3d 1327, 1331 (9th Cir. 1993) (“W hen there is reason to believe that there is

a racial motivation for the challeng e , neither the trial c ourts

nor we are bound to accept at face v alue a list of neutral

reasons that are either unsupported in the record or refuted b y it. A n y other approach leaves Batson a dead letter.”). “B ecause just o ne racial strike c alls for a retrial,” Kesser v

. Cambra
, 465 F. 3 d 3 5 1, 369 (9th Cir. 2006), w e need not reach Castellanos’s arg uments with respect to Venirepersons 3693 or 6963. 1 0

III.

F or the foreg oing r easons, we conclude tha t t h e district
court erred in deny ing Castellanos’s a pplication f

o r h abeas relief. W e therefore reverse the d istrict court’s judg ment a nd remand with instructions to g rant the application.

REVERSED and REMANDED.

10 Ev en if w e w ere to reach th e m erits o f Castellan o s’ s arg u m en ts w i th
resp ect to Ven irep erso n s 3 6 9 3 o r 6 9 6 3
, w e n o te th at at l e a st o n e w ou ld

co m pel th e sam e co n clu sio n

. A lth o u g h th e p ro secu to r’ s reaso n f or strik in g V e n i rem an 6 9 6 3 —th at h e h ad co n n ectio n s to g an g

- related activ ity —w as n o n d i scrim in ato ry , th e reaso n th e p ro secu to r o f f e r e d f or strik in g Ven irem an 3 6 9 3 —th at h e “ h ad tro u b le f o llo w in g d irectio n s in th e b eg in n in g ”—lack s an y

su p p o rt in th e reco rd

.