Yee v. Duncan ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDALL ALLAN YEE,  No. 05-55265
Petitioner-Appellee, D.C. No.
v. CV-03-01764-LGB
BILL DUNCAN, Warden,  ORDER
Respondent-Appellant. WITHDRAWING
OPINION AND
 OPINION
Appeal from the United States District Court
for the Central District of California
Lourdes G. Baird, District Judge, Presiding
Submitted February 9, 2006*
Pasadena, California
Filed September 11, 2006
Before: Alex Kozinski, Stephen S. Trott, and Carlos T. Bea,
Circuit Judges.
Opinion by Judge Trott
*This case was submitted for decision without oral argument.
11039
11042 YEE v. DUNCAN
COUNSEL
Barry J.T. Carlton, Deputy Attorney General, San Diego, Cal-
ifornia, for the respondent-appellant.
Randall Allan Yee, Pro Se, San Luis Obispo, California, for
the petitioner-appellee.
ORDER
The Opinion filed on March 28, 2006, and reported at 441
F.3d 851 (9th Cir. 2006), is withdrawn. It may not be cited as
precedent by or to this court or any district court of the Ninth
Circuit.
With this action, the previous opinion filed March 28,
2006, becomes inoperative and the pending petition for
YEE v. DUNCAN 11043
rehearing and petition for rehearing en banc becomes moot.
The parties, should they so choose, are at liberty to file new
petitions with respect to the new opinion.
So ORDERED.
OPINION
TROTT, Circuit Judge:
In Batson v. Kentucky, 476 U.S. 79 (1986), the United
States Supreme Court established the principle that peremp-
tory challenges may not be used to exclude jurors on account
of race. Although Batson involved peremptory challenges
based on race, in J.E.B. v. Alabama, 511 U.S. 127, 146
(1994), the Supreme Court subsequently extended Batson’s
principles to peremptory challenges based on gender. The
broader principle in Batson and later case law is that a defen-
dant opposing a peremptory challenge bears the ultimate bur-
den of proving the challenge was improper and that this
burden never shifts. See Purkett v. Elem, 514 U.S. 765, 768
(1995).
In the present case, the district court concluded that the
state trial and appellate courts unreasonably determined that
habeas petitioner, Randall Allan Yee, failed to show purpose-
ful discrimination. The district court’s sole basis for granting
Yee’s petition was the prosecution’s inability to explain one
of her peremptory challenges. This inability by itself, how-
ever, is not dispositive, and did not relieve Yee of his ultimate
burden of persuasion. Here, the trial court and the state appel-
late court determined that Yee did not meet that ultimate bur-
den. That determination, in light of Supreme Court precedent
and law from lower federal courts, was reasonable. Accord-
ingly, we reverse the district court’s decision and deny Yee’s
petition for habeas relief.
11044 YEE v. DUNCAN
I
On October 21, 1999, petitioner, Randall Allan Yee, was
charged with three counts of sexual battery in violation of
California Penal Code § 243.4(c), and three counts of com-
mitting a lewd and lascivious act upon a child under age 14
in violation of California Penal Code § 288(a). The govern-
ment alleged that Yee, a dental assistant, engaged in noncon-
sensual and improper sexual contact when he placed his penis
in the hands of two adult women as they awoke from general
anesthesia after dental procedures and repeatedly stuck his
hand down a ten-year-old girl’s pants and touched her vagina
as he prepared her for a tooth extraction.
At Yee’s trial, the prosecutor exercised during voir dire
nine of her ten peremptory challenges. The first six were used
to remove men; the seventh a woman, and the last two men.
Yee continued to exercise his peremptory challenges after the
prosecutor on two occasions had accepted the jury. When
Yee’s peremptory challenge brought a new venire member
into the jury box, the prosecutor used a challenge to remove
that individual, a man. Yee then objected under People v.
Wheeler, 22 Cal. 3d 258 (1978), the California counterpart to
Batson.1 Yee then requested that the trial court declare a mis-
trial and begin jury selection anew, or, in the alternative, dis-
allow the prosecutor from exercising her last peremptory
challenge.
In response, the trial judge found a prima facie case of gen-
der discrimination and requested that the prosecutor offer an
explanation for striking each male juror in the order she exer-
cised her peremptory strikes. When she came to Juror #4, the
prosecutor explained, “I’m trying to remember what it was
about [Juror #4]. If I can skip that one for a moment and move
on.” With the judge’s permission, the prosecutor then offered
1
To the extent the Wheeler standard differs from Batson, the federal
standard controls. See Johnson v. California, 125 S.Ct. 2410 (2005).
YEE v. DUNCAN 11045
explanations for each of the remaining strikes. It is undisputed
that the prosecutor offered gender-neutral reasons for striking
seven of the eight male venire members. Returning to Juror
#4, the prosecutor explained:
And [Juror #4], unfortunately, your honor, I can’t—
I can’t recall specifically what it was about [Juror
#4]. I have down that he was a system analyst and
that he was on a prior jury that reached a verdict and
his wife was a homemaker, but other than that, to be
honest, I can’t recall.
Despite the prosecutor’s failure to offer an explanation for
striking Juror #4, the trial judge denied Yee’s Wheeler/Batson
objection, finding there had been “no systematic exclusion of
the male gender.” The trial court stated that it believed the
prosecutor’s representations to the court and found them
unobjectionable.
On March 10, 2000, the jury convicted Yee on all counts.
On July 7, 2000, the court sentenced Yee to eight years in
state prison. On direct appeal, the California Court of Appeal
affirmed Yee’s conviction even though the prosecutor offered
no reason for striking Juror #4. People v. Yee, No. G027598,
2002 WL 31661266 (Cal. Ct. App. Nov. 26, 2002). The Cali-
fornia Court of Appeal examined voir dire testimony of the
challenged jurors, and found that the prosecutor’s reasons for
excluding each potential juror were plausible and that the trial
judge was justified in accepting them. As to Juror #4, the
court noted that 1) a mere failure to remember was not con-
clusive, 2) the trial court was in the best position to determine
whether the prosecutor honestly could not remember, and 3)
there was sufficient voir dire testimony regarding Juror #4’s
previous service on a medical malpractice jury to provide a
basis for exclusion. On February 11, 2003, the California
Supreme Court denied review.
Yee filed a federal habeas petition on January 8, 2004. He
raised four claims, including the assertion that the prosecution
11046 YEE v. DUNCAN
impermissibly exercised peremptory challenges against male
jurors. The district court granted relief on that ground only,
concluding that “the prosecutor’s failure to state a legitimate
gender-neutral reason for striking [Juror #4] from the jury
violated Petitioner’s constitutional rights,” and that the Cali-
fornia Court of Appeal’s decision affirming the trial court was
an “objectively unreasonable application of Batson and its
progeny.” The district court reasoned that the prosecutor’s
inability to remember why she struck Juror #4 constituted a
per se violation of Yee’s equal protection rights and that it
would be objectively unreasonable to conclude otherwise. The
government appealed the district court’s grant of the petition-
er’s writ.
II
We review de novo the district court’s grant or denial of a
28 U.S.C. § 2254 petition for writ of habeas corpus. Bailey v.
Rae, 339 F.3d 1107, 1111 (9th Cir. 2003). Because Yee is in
custody pursuant to a judgment of a state court, we may not
affirm the district court’s grant of habeas relief unless the Cal-
ifornia Court of Appeal’s determination “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or . . . resulted in a decision that was based on
an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). We may, however, affirm the district court on any
ground supported by the record, even if it differs from the dis-
trict court’s rationale. Lambert v. Blodgett, 393 F.3d 943, 965
(9th Cir. 2004).
“Under the ‘unreasonable application’ clause, a federal
habeas court may grant the writ if the state court identifies the
correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Lockyer v. Andrade, 538 U.S. 63, 75
(2003) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)).
YEE v. DUNCAN 11047
However, the “unreasonable application” clause requires the
state court decision to be “more than incorrect or erroneous.”
Id. “The state court’s application of clearly established law
must be objectively unreasonable.” Id.In applying these standards, we look to the “last reasoned
decision” in the state court system, here, the opinion of the
California Court of Appeal. Robinson v. Ignacio, 360 F.3d
1044, 1055 (9th Cir. 2004).
III
Whether Yee’s habeas petition should be granted turns on
whether it was objectively unreasonable for the California
Court of Appeal to conclude that Yee did not meet his ulti-
mate burden of establishing purposeful discrimination—even
when the prosecutor stated she forgot the reason why she
exercised the peremptory challenge to Juror #4, a statement
the trial court accepted as credible. We hold that the Califor-
nia Court of Appeal’s decision was not objectively unreason-
able and conclude that the district court erred by not giving
sufficient consideration to the Supreme Court’s governing
admonition that the “ultimate burden of persuasion regarding
[discriminatory] motivation rests with, and never shifts from,
the opponent of the strike.” Purkett, 514 U.S. at 768. Instead,
the district court focused too narrowly on the three-step pro-
cess of production.
A
The California Court of Appeal observed correctly the
nature of Yee’s equal protection claim and recognized the
applicability of Batson and its progeny. Thus, the only
remaining inquiry is whether the governing legal rules of
these cases were reasonably applied to the particular facts of
this case. See Williams, 529 U.S. at 412. “In determining
whether a state court’s decision involved an unreasonable
application of clearly established federal law, it is appropriate
11048 YEE v. DUNCAN
to refer to decisions of the inferior federal courts in factually
similar cases.” Musladin v. Lamarque, 427 F.3d 653, 658 (9th
Cir. 2005) (quoting Richardson v. Bowersox, 188 F.3d 973,
978 (8th Cir. 1999) (internal quotation marks omitted)).
[1] In Batson, the Supreme Court held that “[p]urposeful
racial discrimination in selection of the venire violates a
defendant’s right to equal protection because it denies him the
protection that a trial by jury is intended to secure.” 476 U.S.
at 86. But the Court noted that “[a]s in any equal protection
case, the burden is, of course, on the defendant who alleges
discriminatory selection of the venire to prove the existence
of purposeful discrimination.” Id. at 93 (internal quotation
marks and citations omitted). To aid the trial court in deter-
mining whether the defendant has met this burden, the Court
provided a three-step inquiry. Id. at 96-98.
[2] Per the Supreme Court’s direction, at step one, the
defendant is required to make a prima facie showing that “he
is a member of a cognizable racial group” and that the gov-
ernment exercised “peremptory challenges to remove from
the venire members of the defendant’s race.” Id. at 96 (inter-
nal citations omitted). Second, the prosecutor must “articulate
a neutral explanation related to the particular case to be tried.”
Id. at 98. Finally, the trial court has the “duty to determine if
the defendant has established purposeful discrimination.” Id.[3] Subsequent Supreme Court and circuit case law has
reiterated the three-step process, making it the most readily
identifiable and frequent application of Batson. See e.g., Sims
v. Brown, 425 F.3d 560, 574 (9th Cir. 2005). However, the
three-step inquiry should not be applied without consideration
of other relevant factors. Recent Supreme Court case law has
emphasized the importance of the over-encompassing princi-
ple that the burden to prove discrimination is always on the
opponent of the challenge. In Purkett, the Supreme Court
gave the three-step inquiry important context when it
explained “that the ultimate burden of persuasion regarding
YEE v. DUNCAN 11049
racial [or in this case gender] motivation rests with, and never
shifts from, the opponent of the strike.” 514 U.S. 765, 768
(1995). The Court thus made an important distinction between
Batson’s first two steps, which are mere burdens of produc-
tion, and step three, where the ultimate burden—the burden
that “never shifts”—is decided. Id. at 768 (“It is not until the
third step that the persuasiveness of the justification becomes
relevant—the step in which the trial court determines whether
the opponent of the strike has carried his burden of proving
purposeful discrimination.”) (internal citations omitted).2
Here, the California Court of Appeal identified Batson and
its progeny as the controlling legal precedent. It applied these
cases to the facts presented and concluded that Yee did not
meet his ultimate burden of proof. Considering both the three-
step inquiry announced in Batson and the “ultimate burden”
language in Purkett, the California appellate court concluded
2
Purkett also explained that the “admonition in Batson that to rebut a
prima facie case, the proponent of a strike must give a clear and reason-
ably specific explanation of his legitimate reasons for exercising the chal-
lenges” was meant to “refute the notion that a prosecution could satisfy his
burden of production by merely denying that he had a discriminatory
motive or by merely affirming his good faith.” Id. at 769 (internal quota-
tion marks omitted). However, this does not mean that we halt the inquiry
at step two. It means only that a simple denial of discriminatory motive
or affirmance of good faith would leave the opponent of the strike to con-
tinue with his burden of proof, now aided by the opportunity to comment
upon the prosecution’s failure even to meet his burden of production to
rebut the prima facie case, and to argue that, by itself, is sufficient to allow
the court to grant the objection to the strike.
Similarly in Paulino v. Castro, we stated “[I]t does not matter that the
prosecutor might have had good reasons to strike the prospective jurors.
What matters is the real reasons they were stricken. The trial court did not
pause to require an actual explanation from the prosecutor . . . .” 371 F.3d
1083, 1089-90 (9th Cir. 2004). While this prohibits speculation, it should
not be read as prohibiting the consideration of circumstantial evidence by
the court when other circumstances, such as forgetfulness, prevent the pro-
ponent of the strike from coming forward with an explanation for the
strike.
11050 YEE v. DUNCAN
that the trial court’s determination was correct. We conclude
that the appellate court acted reasonably. The California Court
of Appeal’s treatment of step two as a non-dispositive precur-
sor to the ultimate determination at step three was reasonable.
[4] Given the Supreme Court’s explicit directive that the
ultimate burden is always with the defendant, any burden at
step two cannot be definitive. Why? Because the prosecution
would then bear the ultimate burden even though only an
inference of discrimination had been made. This is contrary
to what we have said is the purpose of Batson. “What matters
is the real reason” why the jurors were stricken, Paulino, 371
F.3d at 1090; inferences are simply not enough.
[5] Consequently, step two is an opportunity for the prose-
cution to explain the real reason for her actions. A failure to
satisfy this burden to produce—for whatever reason—
becomes evidence that is added to the inference of discrimina-
tion raised by the prima facie showing, but it does not end the
inquiry. The trial court then moves on to step three where it
considers all the evidence to determine whether the actual rea-
son for the strike violated the defendant’s equal protection
rights.
[6] Perhaps nothing illustrates why the California Court of
Appeal’s decision is reasonable more than the district court’s
approach. The district court concluded that the prosecutor’s
inability to give a reason, regardless of any evidence in the
record, rendered the jury selection process a per se violation
of Yee’s equal protection rights. The district court focused
exclusively on the three-step inquiry—particularly step two.
The district court focused on language in Batson that identi-
fied step two as a “burden” that had to be overcome by the
prosecution. The district court determined that because the
prosecutor forgot the reason why she struck Juror #4, she
never met her burden of providing a race-neutral reason for
her actions and that this failure alone mandated reversal. As
a result, the district court never reached step three. In so
YEE v. DUNCAN 11051
doing, the district court relieved Yee of his “ultimate burden
of persuasion.” See Purkett, 514 U.S. at 768.
This approach also led the district court to be critical of the
trial court’s consideration of circumstantial evidence in the
record not presented by the prosecutor. This criticism is mis-
placed. If the stated purpose of Batson is to determine the
“real” reason for the prosecutor’s actions, id., it is contrary to
that purpose if we demand trial courts to ignore evidence of
the prosecutor’s “real” intent when it is available. Evidence of
jury bias, or lack thereof, can never be irrelevant to a trial
court’s solemn duty to determine the ultimate issue of
whether there has been purposeful discrimination.
[7] In sum, we conclude that it was not unreasonable for the
California Court of Appeal to decide that Yee’s equal protec-
tion rights were not violated. The three-step inquiry must be
applied in congruence with the other legal principles articu-
lated in Batson and Purkett. When this test is properly
applied, a prosecutor’s failure to provide a reason for striking
a potential juror is not an automatic violation of equal protec-
tion. Such a failure, or in this case an assertion of bad mem-
ory, is evidence of discrimination. This evidence
notwithstanding, the trial court must still proceed to step three
before it can determine that purposeful discrimination has
occurred.
B
The reasonableness of the California Court of Appeal’s
decision is substantiated by two of our sister circuits’ opinions
and recent Supreme Court dicta suggesting approval of those
opinions. We turn to the circuits first.
In Bui v. Haley, the Eleventh Circuit rejected the analysis
proffered by the district court when it stated that “mere failure
to explain every strike of black jurors will not necessarily pre-
vent a prosecutor from successfully rebutting a prima facie
11052 YEE v. DUNCAN
case of race discrimination, where there is sufficient circum-
stantial evidence [in the record] from which the court can
deduce a race-neutral reason.” 321 F.3d 1304, 1317 (11th
2003). The Eleventh Circuit reversed in part the district
court’s denial of the habeas petition holding the trial court
could not reasonably have found that an assistant prosecutor
was in a position to know the lead prosecutor’s reasons for the
strikes and, therefore, could not rely on the assistant’s rea-
sons. But in the portion of the opinion relevant to this case,
the court held it was proper for the Alabama Supreme Court
to allow a trial judge to rely on “circumstantial evidence to
support an inference that a race-neutral reason underlies a par-
ticular strike, despite the lack of any explicit race-neutral
explanation from the State.” Id.The Eleventh Circuit is not alone. In United States v.
Forbes, the Fifth Circuit indicated its approval of the Eleventh
Circuit’s position noting that “ ‘[f]ailure by a prosecutor to
explain every peremptory strike of black jurors is not neces-
sarily fatal to the prosecutor’s ability to rebut a prima facie
case.’ ” 816 F.2d 1006, 1011 n.7 (5th Cir. 1987) (quoting
United States v. David, 803 F.2d 1567, 1571 (11th Cir.
1986)).
These circuit cases notwithstanding, the most salient, albeit
non-binding, authority is found in Johnson. In Johnson the
question before the Supreme court was whether Batson per-
mitted the state of California to require opponents of a strike
to show, at step one, whether it was “more likely than not”
that the other party’s peremptory challenge was based on
impermissible group bias. 125 S.Ct. at 2416. The Court recog-
nized that “states do have flexibility in formulating appropri-
ate procedures to comply with Batson,” and concluded that
the “ ‘more likely than not’ standard is an inappropriate yard-
stick by which to measure the sufficiency of a prima facie
case.” Id. In coming to its conclusion, the Court emphasized
the directive it set forth in Purkett: “The first two Batson steps
govern the production of evidence that allows the trial court
YEE v. DUNCAN 11053
to determine the persuasiveness of the defendant’s constitu-
tional claim.” Id. at 2417. The Court went on to explain that
it was not until step three that “the trial court determines
whether the opponent of the strike has carried his [ultimate]
burden of proving purposeful discrimination.” Id. (quoting
Purkett, 514 U.S. at 768). Accordingly, the Supreme Court
rejected any standard that changed step one into a burden of
persuasion rather than a burden of production used to manage
the introduction of evidence.
[8] In a footnote, the Court indicated a similar concern with
regard to step two, and addressed a fact pattern similar to the
one at hand,
In the unlikely hypothetical in which the prosecutor
declines to respond to a trial judge’s inquiry regard-
ing his justification for making a strike, the evidence
before the judge would consist not only of the origi-
nal facts from which the prima facie case was estab-
lished, but also the prosecutor’s refusal to justify his
strike in light of the court’s request. Such a refusal
would provide additional support for the inference of
discrimination raised by a defendant’s prima facie
case.
Id. at 2418 n.6. Thus, the Supreme Court—interpreting Bat-
son and its progeny—indicated, as we hold today, that a fail-
ure to provide an explanation for exercising a strike does not
relieve the trial court of its responsibility to make the ultimate
determination of whether there has been purposeful discrimi-
nation. Consequently, because the Supreme Court was not
creating new case law in Johnson, but merely interpreting
Batson, we find it difficult to conclude that the same interpre-
tation, here made by the California Court of Appeal, is objec-
tively unreasonable.
IV
[9] Having determined that the prosecutor’s failure to
explain Juror #4’s strike is not a per se violation of Yee’s
11054 YEE v. DUNCAN
equal protection rights, we now consider whether the Califor-
nia Court of Appeal unreasonably determined from the facts
of the record that Yee did not meet his burden of proving pur-
poseful discrimination with regard to Juror #4. Based on our
review of the record, we conclude there was sufficient evi-
dence to support the trial court’s determination that Yee never
met his burden. The voir dire testimony suggests a gender-
neutral reason why the prosecutor might have wanted to chal-
lenge Juror #4: Juror #4 had served as a juror on a medical
malpractice case. As the California Court of Appeal noted,
such service could well have brought the juror too close to the
malpractice issues presented in Petitioner’s case, which arise
from acts Yee committed in his dental office. Moreover, the
prosecutor twice accepted the jury and the prosecutor had
non-discriminatory, objectively verifiable reasons for exclud-
ing all of the other removed venire members. Accordingly, it
was reasonable for the trial court to conclude that, though the
prosecutor could not remember the reasons for challenging
Juror #4, Yee did not establish purposeful discrimination.
V
[10] We conclude that California Court of Appeal decision
was not objectively unreasonable and, therefore, reverse the
district court’s order granting Yee’s habeas petition.
REVERSED and REMANDED with instructions to enter
judgement on behalf of Respondent Duncan.