Yee v. Duncan ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDALL ALLAN YEE,  No. 05-55265
Petitioner-Appellee,
v.  D.C. No.
CV-03-01764-LGB
BILL DUNCAN, Warden,
OPINION
Respondent-Appellant.

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 March 28, 2006
Before: Alex Kozinski, Stephen S. Trott, and Carlos T. Bea,
Circuit Judges.
Opinion by Judge Bea
*This case was submitted for decision without oral argument.
3317
3320 YEE v. DUNCAN
COUNSEL
Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General, Gary
W. Schons, Senior Assistant Attorney General, Kevin R.
Vienna, Deputy Attorney General, and Barry J.T. Carlton,
Supervising Deputy Attorney General, San Diego, California,
for the respondent-appellant.
Randall Allan Yee, San Luis Obispo, California, pro se.
OPINION
BEA, Circuit Judge:
When a criminal defendant has established a prima facie
case of gender discrimination in the prosecutor’s use of a
peremptory challenge during jury selection, and the prosecu-
tor is unable to recall the basis for her challenge, may the trial
court substitute findings of the prosecutor’s sincerity, together
with circumstantial evidence indicating a lack of gender-
based motive, for the prosecutor’s failure to offer a gender-
neutral explanation for the challenge? No. Under these cir-
cumstances, the law requires the explanation; we affirm the
judgment of the district court conditionally granting the writ
of habeas corpus.
The prosecutor in Randall Allan Yee’s 1999 trial in Cali-
fornia state court exercised eight of her available ten peremp-
tory challenges against male venire-members. See Cal. Civ.
Proc. Code § 231(a). Yee timely objected under Wheeler,1 and
1
People v. Wheeler, 22 Cal. 3d 258 (1978), is the California counterpart
to Batson v. Kentucky, 476 U.S. 79 (1986), which held that purposeful dis-
crimination in the jury selection process violates the Equal Protection
Clause of the Fourteenth Amendment, and established a three-step eviden-
tiary framework to determine whether peremptory challenges were exer-
YEE v. DUNCAN 3321
the trial judge determined Yee established a prima facie case
of gender discrimination. After providing neutral reasons for
seven of the strikes, the prosecutor stated she was unable to
remember why she struck one of the male venire-members,
Juror X. The trial court rejected Yee’s Wheeler/Batson objec-
tion, and the California Court of Appeal affirmed his convic-
tion.
Yee petitioned for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 on multiple grounds, including that the prose-
cutor’s peremptory challenge against Juror X violated the
Equal Protection Clause of the Fourteenth Amendment. The
district court granted the writ based only on Yee’s equal pro-
tection claim under Batson. The government appeals the dis-
trict court’s grant of the writ; Yee does not cross-appeal the
court’s denial of his other claims for habeas relief.
The issue before us, therefore, is narrow: Was it contrary
to, or an unreasonable application of, clearly established fed-
eral law as determined by the Supreme Court, for the Califor-
nia Court of Appeal to uphold the peremptory challenge when
the prosecutor failed to provide any explanation for striking
Juror X, but offered nondiscriminatory reasons for striking
each of the other challenged male jurors? We hold that it was.
In Batson, and the line of cases following it, the Supreme
Court has clearly established that the proponent of the strike
must articulate a clear and reasonably specific neutral expla-
nation for each of the challenged strikes to meet her burden
of production at step two of the familiar three-step Batson
analysis. Here, that is exactly what the prosecutor failed to do.
cised to exclude jurors impermissibly. Wheeler held the use of peremptory
challenges to remove prospective jurors on the sole ground of group bias
violates article I, section 16, of the California Constitution. To the extent
the Wheeler standard differs from Batson (as it does with respect to step
one) the federal standard controls. See Johnson v. California, ___ U.S.
___, 125 S. Ct. 2410, 2413-14 (2005).
3322 YEE v. DUNCAN
We have jurisdiction pursuant to 28 U.S.C. § 2253 and we
affirm.
I.
The underlying crime facts, while serious, do not affect this
appeal. In short, Randall Allan Yee, a dental assistant,
engaged in predatory, unconsented sexual contact with three
female dental patients, twice while the patients were under
anesthesia. On October 21, 1999, Yee was charged with three
counts of sexual battery in violation of California Penal Code
§ 243.4(c),2 and three counts of committing a lewd and lasciv-
ious act upon a child under age 14 in violation of California
Penal Code § 288(a).3
During voir dire, the prosecutor exercised eight of her nine
peremptory challenges against male jurors.4 After the prosecu-
2
Any person who, for the purpose of sexual arousal, sexual gratifi-
cation, or sexual abuse, causes another, against that person’s will
while that person is unlawfully restrained either by the accused
or an accomplice, or is institutionalized for medical treatment and
is seriously disabled or medically incapacitated, to masturbate or
touch an intimate part of either of those persons or a third person,
is guilty of sexual battery. A violation of this subdivision is pun-
ishable by imprisonment in a county jail for not more than one
year, and by a fine not exceeding two thousand dollars ($2,000);
or by imprisonment in the state prison for two, three, or four
years, and by a fine not exceeding ten thousand dollars ($10,000).
Cal. Penal Code § 243.4(c) (1999).
3
Any person who willfully and lewdly commits any lewd or las-
civious act, including any of the acts constituting other crimes
provided for in Part 1, upon or with the body, or any part or
member thereof, of a child who is under the age of 14 years, with
the intent of arousing, appealing to, or gratifying the lust, pas-
sions, or sexual desires of that person or the child, is guilty of a
felony and shall be punished by imprisonment in the state prison
for three, six, or eight years.
Cal. Penal Code § 288(a) (1999).
4
The prosecutor was permitted to use ten peremptory challenges—one
was used to strike a female and one was not used.
YEE v. DUNCAN 3323
tor exercised her eighth peremptory challenge against a male,
Yee objected under Wheeler. Yee then requested the court
declare a mistrial and begin jury selection anew, or, in the
alternative, disallow the prosecutor to exercise her peremptory
challenge against the eighth male.
The trial judge found a prima facie case of gender discrimi-
nation. It is undisputed that the prosecutor then offered
gender-neutral reasons for seven of her eight challenges to
male venire-members. The prosecutor, however, was unable
to remember why she struck one male venire member, Juror
X.5 Despite the prosecutor’s failure to offer any explanation
for striking Juror X, the trial judge denied Yee’s Wheeler
objection, finding there had been “no systematic exclusion of
the male gender.” The trial judge noted (1) the previously
accepted jurors included four males, (2) he concurred with the
prosecutor’s assessment of some of the male jurors chal-
lenged, and (3) “the court’s taking counsel at her representa-
tion that [challenging males] is not her intent.”
On March 10, 2000, the jury convicted Yee on all counts.
5
In response to the court’s request, the prosecutor attempted to offer an
explanation for striking each male juror in the order she exercised her
peremptory strikes. When she came to Juror X, the prosecutor explained
“I’m trying to remember what it was about [Juror X]. If I can skip that one
for a moment and move on.” With the judge’s permission, the prosecutor
then offered explanations for each of the remaining strikes. Returning to
Juror X, the prosecutor explained:
And [Juror X], unfortunately, your honor, I can’t—I can’t recall
specifically what it was about [Juror X]. 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.
We cannot interpret the prosecutor’s statements regarding Juror X’s pro-
fession, prior jury service or Juror X’s wife’s occupation as grounds for
the prosecutor’s exercise of the strike because to do so would be contrary
to the prosecutor’s explicit statement that she could not recall the reason
for her strike.
3324 YEE v. DUNCAN
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, holding the prosecutor satisfied
her burden of production at step two of the Batson analysis
even though she failed to offer any reason for striking Juror
X. People v. Yee, No. G027598, 2002 WL 31661266, at *11-
12 (Cal. Ct. App. Nov. 26, 2002). 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 that the prosecution impermiss-
ibly exercised peremptory challenges against male jurors. The
district court granted relief6 on that ground only, finding (1)
“the prosecutor’s failure to state a legitimate gender-neutral
reason for striking Juror X from the jury violated Petitioner’s
constitutional rights,” and (2) the California Court of
Appeal’s decision affirming the trial court was an “objectively
unreasonable application of Batson and its progeny.” We
review de novo the district court’s grant or denial of a 28
U.S.C. § 2254 petition for writ of habeas corpus. Daniels v.
Woodford, 428 F.3d 1181, 1196 (9th Cir. 2005).
Yee is in custody pursuant to a judgment of a state court.
Therefore, we may not affirm the district court’s grant of
habeas relief unless the California Court of Appeal’s determi-
nation “was contrary to, or involved an unreasonable applica-
tion 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 evidence presented in the State court proceed-
ing.” 28 U.S.C. § 2254(d). We may, however, affirm the dis-
6
The district court ordered:
a conditional writ be granted as follows: Respondents shall
release Petitioner from custody and discharge him from all
adverse consequences of his conviction [ ], unless Respondent
determines within sixty (60) days of the date of the Judgment
herein becomes final that the case will be re-tried.
YEE v. DUNCAN 3325
trict court on any ground supported by the record, even if it
differs from the district court’s rationale. Earp v. Ornoski, 431
F.3d 1158, 1181 n.17 (9th Cir. 2005) (citing Lambert v. Blod-
gett, 393 F.3d 943, 965 (9th Cir. 2004)).
The phrase “clearly established Federal law, as determined
by the Supreme Court” “refers to the holdings, as opposed to
the dicta, of [Supreme] Court[ ] decisions as of the time of the
relevant state-court decision.” Williams v. Taylor, 529 U.S.
362, 412 (2000). Therefore, a state court’s decision is “con-
trary to” federal law under section 2254 only if “the state
court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts.” Id. at 412-13.
A state court decision is an “unreasonable application of”
Supreme Court precedent if it “correctly identifies the correct
governing legal rule [from Supreme Court cases] but applies
it unreasonably to the facts of a particular . . . case.” Id. at
407-08. The state court may also unreasonably apply Supreme
Court authority if it “either unreasonably extends a legal prin-
ciple from [Supreme Court] precedent to a new context where
it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Id. at 407.
In applying these standards, we look to the “last reasoned
decision” in the state court system, in this case the opinion of
the California Court of Appeal. Robinson v. Ignacio, 360 F.3d
1044, 1055 (9th Cir. 2004).
II.
[1] In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme
Court held “[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.” Id. at 86. Batson established a three-step
3326 YEE v. DUNCAN
procedure for challenges to peremptory challenges on the
basis of race. First, 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 omitted). Therefore, at step one:
To establish such a case, the defendant first must
show that he is a member of a cognizable racial
group, and that the prosecutor has exercised peremp-
tory challenges to remove from the venire members
of the defendant’s race.
Id. at 96 (internal citations omitted).7
[2] “Once the defendant makes a prima facie showing, the
burden shifts to the State to come forward with a neutral
explanation for challenging black jurors.”8 Id. at 97. At step
two, “[t]he prosecutor therefore must articulate a neutral
explanation related to the particular case to be tried. The trial
court then will have the duty to determine if the defendant has
established purposeful discrimination.” Id. at 98 (footnote
omitted). This last statement is the foundation for “step three”
of the Batson analysis.
While the Batson Court “decline[d] [ ] to formulate particu-
lar procedures to be followed upon a defendant’s timely
objection to a prosecutor’s challenges,” id. at 99, since Batson
the Court has consistently analyzed discriminatory jury selec-
tion challenges through a three-step procedure.9
7
In Powers v. Ohio, 499 U.S. 400, 402 (1991), however, the Court held
that a criminal defendant may object to group-based exclusion of jurors
regardless of whether defendant is a member of the group.
8
While Batson prohibited discrimination in jury selection on the basis
of race, its holding has since been extended to prohibit gender discrimina-
tion as well. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994).
9
For example, in its recent opinion in Johnson v. California, 125 S. Ct.
2410 (2005), the Supreme Court articulated the Batson analysis in the
familiar three-step format:
YEE v. DUNCAN 3327
Based on the plain language of Supreme Court opinions
prior to November 26, 2002 (the date of the California Court
of Appeal’s decision), the California Court of Appeal’s hold-
ing that the proponent of a strike may satisfy her burden of
production at step two of the Batson analysis without offering
a race and gender-neutral explanation for the strike is contrary
to clearly established federal law. In Batson itself, the Court
explained:
Once the defendant makes a prima facie showing,
the burden shifts to the State to come forward with
a neutral explanation for challenging black jurors.
Though this requirement imposes a limitation in
some cases on the full peremptory character of the
historic challenge, we emphasize that the prosecu-
tor’s explanation need not rise to the level justifying
exercise of a challenge for cause. . . . Nor may the
prosecutor rebut the defendant’s case merely by
denying that he had a discriminatory motive or
affirming his good faith in making individual selec-
tions. If these general assertions were accepted as
rebutting a defendant’s prima facie case, the Equal
Protection Clause would be but a vain and illusory
Those three Batson steps should by now be familiar. First, the
defendant must make out a prima facie case by showing that the
totality of the relevant facts gives rise to an inference of discrimi-
natory purpose. Second, once the defendant has made out a prima
facie case, the burden shifts to the State to explain adequately the
racial exclusion by offering permissible race-neutral justifications
for the strikes. Third, if a race-neutral explanation is tendered, the
trial court must then decide whether the opponent of the strike
has proved purposeful racial discrimination.
Id. at 2416 (alterations, citations and internal quotation marks omitted). Of
course, because Johnson was decided after the date of the California Court
of Appeal’s decision in this case, we cite it only as an example of the
Supreme Court’s consistent interpretation of Batson to date, and do not
rely on it for our holding.
3328 YEE v. DUNCAN
requirement. The prosecutor therefore must articu-
late a neutral explanation related to the particular
case to be tried.
476 U.S. at 97-98 (alterations, citations and internal quotation
marks omitted) (emphasis added). As this passage makes
clear, at step two the prosecutor must articulate a neutral
explanation for the challenge of individual selections; she
may not rely on general assertions of good faith or denials of
discrimination.10
[3] Furthermore, in J.E.B. v. Alabama ex rel. T.B., applying
the Batson analysis to gender discrimination, the Court clearly
stated that the party exercising the challenge must explain the
basis for the strike at step two.
As with race-based Batson claims, a party alleging
gender discrimination must make a prima facie
showing of intentional discrimination before the
party exercising the challenge is required to explain
the basis for the strike. When an explanation is
required, it need not rise to the level of a ‘for cause’
challenge; rather, it merely must be based on a juror
characteristic other than gender, and the proffered
explanation may not be pretextual.
511 U.S. at 144-45 (citation omitted) (emphasis added). In
J.E.B., therefore, the Supreme Court made clear that the pro-
ponent of the strike’s duty to come forward with a neutral
explanation for the challenged strike at step two of the Batson
analysis applies equally in gender discrimination cases as in
racial discrimination cases.
Next, in Purkett v. Elem, the Court further elaborated on
the requirements at step two of the Batson analysis:
10
Nothing we say here is meant to impugn the sincerity of the prosecu-
tor in this case, nor to fault the trial judge’s decision as to such sincerity.
Both simply failed to apply the required law.
YEE v. DUNCAN 3329
Under our Batson jurisprudence, once the opponent
of a peremptory challenge has made out a prima
facie case of racial discrimination (step one), the
burden of production shifts to the proponent of the
strike to come forward with a race-neutral explana-
tion. . . . The second step of this process does not
demand an explanation that is persuasive or even
plausible. At this second step of the inquiry the issue
is the facial validity of the prosecutor’s explanation.
Unless a discriminatory intent is inherent in the pro-
secutory’s explanation the reason will be deemed
race neutral.
514 U.S. 765, 767-68 (1995) (per curiam) (alteration, citation
and internal quotation marks omitted) (emphasis added).
While Purkett held the reason offered at step two need not be
“persuasive or even plausible,” the Court continued to empha-
size that the proponent of the strike bears the burden of pro-
duction to come forward with a race and gender-neutral
explanation.
[4] Thus, at the time of the California Court of Appeal’s
decision in this case it was clearly established law that the
proponent of the strike must “articulate” (Batson) “an expla-
nation” (J.E.B.) to meet her “burden of production” (Purkett)
at step two of the Batson analysis.11 Therefore, the determina-
11
See also Georgia v. McCollum, 505 U.S. 42, 59 (1992) (applying Bat-
son, the Court held “the Constitution prohibits a criminal defendant from
engaging in purposeful discrimination on the ground of race in the exer-
cise of peremptory challenges. Accordingly, if the State demonstrates a
prima facie case of racial discrimination by the defendants, the defendants
must articulate a racially neutral explanation for peremptory challenges”);
Trevino v. Texas, 503 U.S. 562, 565 (1992) (holding the pre-Batson defen-
dant preserved his claim that the state’s use of peremptory challenges vio-
lated the Fourteenth Amendment, the Court explained “[Batson]
announced the now familiar rule that when a defendant makes a prima
facie showing that the State has exercised its peremptory challenges to
exclude members of the defendant’s racial group, the State bears the bur-
3330 YEE v. DUNCAN
tion of the California Court of Appeal that the prosecutor sat-
isfied her burden under Batson when she failed to offer any
explanation for striking Juror X is contrary to clearly estab-
lished law as determined by the Supreme Court.
III.
Careful consideration of California Court of Appeal’s rea-
soning does not alter our conclusion. First, the California
Court of Appeal explained that under California law, it is “not
limited to the prosecutor’s stated reasons, but may scrutinize
voir dire to determine whether it reveals any nondiscrimina-
tory basis for the challenge.” People v. Yee, No. G027598,
2002 WL 31661266, at *8 (citing People v. Howard, 824 P.2d
1315 (Cal. 1992); People v. Trevino, 64 Cal. Rptr. 2d 61 (Ct.
App. 1997)). The court noted the voir dire transcript revealed
Juror X had served as a juror on a medical malpractice case,
and “[w]hile that justification for exclusion seems slim, it is
sufficient because exclusion may be based upon trivial or
arbitrary reasons if they are genuine and neutral.” Id. at *12.
Second, the court held the “[f]ailure to remember the rea-
son for the challenge is . . . roughly equivalent to a mistaken
challenge, which is recognized as a permissible neutral expla-
nation [under California law].” Id. at *11 (citing People v.
Williams, 16 Cal. 4th 153, 188-89 (1997)). The court reasoned
den of coming forward with a race neutral justification”); Edmonson v.
Leesville Concrete Co., 500 U.S. 614, 631 (1991) (holding the exclusion
of a juror from a civil trial on account of race violates that juror’s equal
protection rights and remanding under Batson “to consider whether a
prima facie case of racial discrimination has been established . . . requiring
Leesville to offer race-neutral explanations for its peremptory chal-
lenges”); Teague v. Lane, 489 U.S. 288, 295 (1989) (reaffirming that Bat-
son does not apply retroactively on collateral review, the Court explained
that under Batson “[o]nce the defendant makes out a prima facie case of
discrimination, the burden shifts to the prosecutor ‘to come forward with
a neutral explanation for challenging black jurors’ ”) (quoting Batson, 476
U.S. at 97).
YEE v. DUNCAN 3331
that “[j]ust as it is self-evidently possible for counsel to err
when exercising peremptory challenges, it is possible to for-
get the reason for exercising the challenge.” Id. (internal quo-
tation marks and citation omitted).
In conclusion, the court held Yee’s Wheeler/Batson chal-
lenge was properly denied because
[t]he prosecutor stated permissible reasons for the
peremptory challenges and the record supports those
reasons. The record reveals additional grounds for
exercising peremptory challenges not mentioned by
the prosecution. Hence, the record as a whole does
not show purposeful discrimination. According def-
erence to the trial court’s conclusion the prosecutor
did not act with prohibited intent, we conclude sub-
stantial evidence supports denial of Yee’s Wheeler
motion. Our conclusion is bolstered by the composi-
tion of the final jury. As the trial court noted, the
prosecution accepted a jury with four men. This fact
is not conclusive, but it is an indication of good faith
in exercising peremptories, and an appropriate factor
for the trial judge to consider in ruling on a Wheeler
objection.
Id. at *13 (internal quotation marks and citations omitted).
[5] First, regardless of California law, as we have previ-
ously held, under Batson a trial judge may not look beyond
the explanations for the strike offered by the prosecutor to sat-
isfy the prosecutor’s burden of production at step two. See
Batson, 476 U.S. at 96 (“The prosecutor therefore must articu-
late a neutral explanation related to the particular case to be
tried.”); see also Paulino v. Castro, 371 F.3d 1083, 1090,
1092 (9th Cir. 2004) (“[I]t does not matter that the prosecutor
might have had good reasons to strike the prospective jurors
[based on the record]. What matters is the real reason they
were stricken”; the trial court may not rely “on its own specu-
3332 YEE v. DUNCAN
lation as to what might have been the prosecutor’s reasons”);
Turner v. Marshall, 121 F.3d 1248, 1251, 1253 (9th Cir.
1997) (holding (1) the prosecutor met her burden at step two
by “articulat[ing] explanations for each of the disputed chal-
lenges” even though she could not remember all of her rea-
sons for each strike, and (2) the reasons offered in support of
the strikes by the state after the evidentiary hearing could not
be considered as part of the prosecutor’s explanation at step
two).
In contrast, valid nondiscriminatory reasons for striking a
juror appearing in the voir dire record, but not offered by the
prosecutor as her reason for the strike, may be considered at
step three as evidence of the prosecutor’s nondiscriminatory
motive. Id. at 1254 (“Finally, although the fact that the prose-
cutor accepted four African-Americans on the jury may be
considered indicative of a nondiscriminatory motive, it is not
dispositive. Where the prosecutor’s explanation for striking a
minority juror is unsupported by the record, empaneling other
minority jurors will not salvage her discredited justification.”
(citation omitted)).
[6] Second, although the California Court of Appeal is cor-
rect that the failure to remember the reason for a strike does
not necessarily mean that the reason was discriminatory, that
finding is irrelevant at step two. At step two, the prosecutor
has the burden of production to come forward with a nondis-
criminatory explanation for the strike. Purkett, 514 U.S. at
767-68. It is not until step three that the court determines if
the reason offered by the prosecutor is sufficient to prevent
the defendant from carrying his burden of persuasion that the
strike was discriminatory. Batson, 476 U.S. at 98. At step two,
therefore, the prosecutor must produce an explanation for the
strike to meet her burden of production. Batson, 476 U.S. at
98; J.E.B., 511 U.S. at 144-45; see also United States v.
Bishop, 959 F.2d 820, 826-27 (9th Cir. 1992), overruled on
other grounds as recognized by Boyde v. Brown, 404 F.3d
1159, 1171 n.10 (9th Cir. 2005) (holding that when “a dis-
YEE v. DUNCAN 3333
criminatory intent is inherent in the prosecutor’s explanation,”
the prosecutor fails to satisfy her burden to articulate a
racially neutral explanation for the strike and the Batson anal-
ysis ends at step two; explaining, “In so holding, we do not
intend to question the ‘great deference’ to which the trial
court’s factual findings regarding purposeful discrimination in
jury selection are entitled. . . . But the role of the judge in
assessing the prosecutor’s motive only kicks in once a race-
neutral justification has been offered.”). Therefore, even
assuming, without deciding, the California Court of Appeal is
correct that a “mistaken strike” satisfies step two because the
explanation offered (mistake) is nondiscriminatory, here, the
prosecutor failed to offer any explanation for the strike and
thus failed to satisfy her burden of production at step two.12
The remaining reasons offered by the California Court of
Appeal for upholding the trial judge’s denial of Yee’s Whee-
ler objection (the record as a whole did not show purposeful
discrimination, deference to the trial judge’s determination of
the prosecutor’s nondiscriminatory intent, and the ultimate
makeup of the jury) are all proper considerations at step three
of the Batson analysis.13 As previously explained, it is not
12
In addition, we do not accept the notion that failure to offer an expla-
nation can be equated with a mistaken explanation. A mistake can be
pointed out and corrected. Here, the failure to explain was pointed out but
was not corrected.
13
See Bishop, 959 F.2d at 827.
It is true that representativity and, more generally, a prosecutor’s
acceptance of black jurors, are factors that a trial judge may take
as an indication of non-discriminatory motive [determined at step
3]. However, there is a critical distinction between using propor-
tional representation as evidence of the government’s sincerity
and using it to offset a constitutional violation, thereby rendering
the violation somehow harmless. The latter scenario collides with
the fundamental principle that under Batson, the striking of one
black juror for a racial reason violates the Equal Protection
Clause.
Id. (internal quotation marks and citations omitted).
3334 YEE v. DUNCAN
until step three that the judge looks to the record as a whole,
including the ultimate makeup of the jury, to determine
whether the prosecutor’s intent in striking the jurors was dis-
criminatory. In contrast, at step two the prosecutor need pre-
sent only a reason for the strike, which is exactly what this
prosecutor failed to do.
IV.
While we hold today that it was contrary to Supreme Court
precedent for the California Court of Appeal to determine the
proponent of a challenged strike met her burden of production
at step two of the Batson analysis without producing a gender-
neutral explanation for the strike, we recognize that at least
one of our sister circuits has held otherwise.14
14
In Carter v. Hopkins, 151 F.3d 872 (8th Cir. 1998), the Eighth Circuit
held Batson’s three-step analysis did not apply, and thus the prosecutor’s
failure to remember his reasons for striking the challenged jurors was not
fatal, where the defendant failed to raise his Batson claim until approxi-
mately eleven years after the completion of trial. In so holding, the Eighth
Circuit noted that “[o]rdinarily, a claim that peremptory challenges have
been exercised in a discriminatory manner is procedurally defaulted if
there has been no timely objection,” however, because the state failed to
raise procedural default in its answer to the habeas petition, the district
court deemed any such defense waived. Id. at 875 n.8. Because Yee timely
objected to the prosecutor’s peremptory challenges, Carter is readily dis-
tinguishable.
Also relying on the timely objection rule, in United States v. Forbes,
816 F.2d 1006, 1011 (5th Cir. 1987) the Fifth Circuit held a defendant
may not, on appeal, challenge the prosecutor’s failure to offer a reason for
one of three peremptory strikes challenged under Batson if the defendant
failed to object to the lack of explanation at trial. Forbes was decided only
one year after Batson and evidences a misunderstanding of that case’s
holding by both the prosecutor and defense attorney at trial—which took
place only two months after Batson was decided. Id. at 1009. Since that
time, Batson has not been understood to require a defendant to object both
initially to the prosecutor’s peremptory strikes under Batson, and then sep-
arately to each explanation offered by the prosecutor in order to preserve
his Batson challenge for appeal. Because the timely objection rule has not
been raised in this case, and we do not think it applicable, to the extent
Forbes is on point, it too is readily distinguishable.
YEE v. DUNCAN 3335
[7] In Bui v. Haley, the Eleventh Circuit held it was not an
unreasonable application of Supreme Court precedent for the
Alabama state court to hold a trial judge may rely on “circum-
stantial evidence to support an inference that a race-neutral
reason underlies a particular strike, despite the lack of any
explicit race-neutral explanation from the State.” 321 F.3d
1304, 1317 (11th Cir. 2003). In Bui, after the prosecutor,
Evans, used nine of his thirteen peremptory challenges to
strike black venire members, the defendant, Bui, objected “to
the systematic exclusion of blacks.” Id. at 1309. Evans
responded: “We struck those who we believed would acquit.
Those strikes were not based on race but on just our exercis-
ing our right to strike jurors we feel would be most favorable
to acquit. On that grounds only.” Id. The trial court declared
a recess without ruling on Bui’s objection. Bui was convicted
and the Alabama Court of Criminal Appeals and Alabama
Supreme Court affirmed. The U.S. Supreme Court vacated
both appellate decisions and remanded the case for reconsid-
eration in light of Powers v. Ohio.15 By the time the state cir-
cuit court scheduled a Batson hearing, Evans had left the
District Attorney’s office to become the state Attorney Gen-
eral. Id. at 1310. Therefore, Brooks, the assistant prosecutor
who had served as co-counsel during the trial but had not par-
ticipated in voir dire, appeared and offered reasons for the
strikes derived from her notes (but not Evans’s notes), the
trial transcript and juror history lists. Id. at 1311. Ultimately,
Brooks offered neutral reasons for striking eight venire mem-
bers but was unable to articulate any reason for striking one
venire member (Strike 11).
The Alabama Court of Criminal Appeals held (1) the court
could not rely on the reasons offered by Brooks because
Evans was the proponent of the strikes and Brooks did not
claim any knowledge of Evans’ actual reasons for the strikes,
15
499 U.S. 400 (1991) (holding a criminal defendant can bring a third
party challenge to the peremptory striking of jurors based on race whether
or not he is of the same race as the stricken jurors).
3336 YEE v. DUNCAN
and (2) even if Brooks’ reasons were acceptable, her total fail-
ure to offer any reason for the eleventh strike failed to satisfy
the state’s burden at step two. On appeal, the Alabama
Supreme Court reversed both holdings. Bui petitioned for a
federal writ of habeas corpus. The district court upheld the
Alabama Supreme Court on both Batson issues.
On appeal, the Eleventh Circuit reversed in part, holding
(1) the trial court could not reasonably have found Brooks
was in a position to know Evans’ reasons for the strikes and,
therefore, could not rely on Brooks’ reasons under Batson, id.
at 1315, and (2) it was not unreasonable to conclude a trial
judge may rely on “circumstantial evidence to support an
inference that a race-neutral reason underlies a particular
strike, despite the lack of any explicit race-neutral explanation
from the State.” Id. at 1317. The court explained:
[M]ere failure to explain every strike of black jurors
will not necessarily prevent a prosecutor from suc-
cessfully rebutting a prima facie case of race dis-
crimination, where there is sufficient circumstantial
evidence from which the court can deduce a race-
neutral reason. The error of the district court does
not lie in its affirming the Alabama Supreme Court’s
reliance on this legal principle, but in upholding an
unreasonable determination of the facts in light of
the evidence contained in the record.
Id.
[8] As the Supreme Court has repeatedly explained, and as
we have detailed above, however, the prosecutor has the bur-
den to produce a reason for the challenged strikes at step two.
Consideration of circumstantial evidence to support the prose-
cutor’s nondiscriminatory motive is properly considered at
step three and may not be used to excuse the prosecutor’s fail-
ure to meet her burden of production at step two. Because
Bui’s analysis regarding Juror 11 impermissibly conflates
YEE v. DUNCAN 3337
steps two and three of Batson, we decline to follow its hold-
ing.
In Harrison v. Ryan, the Third Circuit held that when a
prosecutor fails to offer any reason for exercising a peremp-
tory challenge (due to his inability to remember) the prosecu-
tor failed to satisfy step two of the Batson analysis. 909 F.2d
84, 87 (3rd Cir. 1990).16 Harrison was tried and convicted of
robbery in Pennsylvania state court. During jury selection, the
prosecutor had available eight peremptory challenges; he used
six to strike black venire members and left two unused. Id. at
85. Harrison “objected to the prosecutor’s use of peremptory
challenges to exclude all black venirepersons.”17 Id.
While Harrison’s direct appeal was pending, the Supreme
Court decided Batson. The Pennsylvania Superior Court
affirmed Harrison’s conviction, and the Pennsylvania
Supreme Court denied review. Id. at 86. Harrison filed a writ
of habeas corpus in the federal district court. At a hearing
before a magistrate judge, the prosecutor articulated neutral
explanations for the dismissal of five venire-members but was
unable to recall why he challenged the sixth. Id. The district
court granted the writ. Id. On appeal, the Third Circuit
affirmed, holding (1) by failing to offer a reason for striking
Juror 6, the prosecutor failed to meet his burden at step two,
and (2) the failure to offer a neutral reason for striking even
one juror requires issuance of the writ. Id. at 87-88.
[T]he prosecutor’s failure to recall his reason for
using a peremptory challenge to strike the juror was
16
Harrison v. Ryan, 909 F.2d 84 (3rd Cir. 1990) was decided before the
enactment of Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996) and, therefore,
does not apply the standards set forth in 28 U.S.C. § 2254.
17
It appears from this language that the prosecutor excluded all black
members of the venire pool; however, the opinion does not clearly explain
this point. The opinion also fails to include the trial judge’s ruling on this
objection. It is assumed the objection was denied.
3338 YEE v. DUNCAN
insufficient to satisfy the Batson requirement that the
“prosecutor . . . must articulate a neutral explanation
related to the particular case to be tried.” . . . Having
determined that the Commonwealth has failed to
meet its burden, i.e., that “the prosecutor must give
a clear and reasonably specific explanation of his
legitimate reasons for exercising the challenges,” we
are now faced with the question of whether the
exclusion of one black juror from the jury on the
basis of race is sufficient to require a new trial pursu-
ant to Batson. We hold that it is.
Id. at 87-88 (internal citations omitted) (language within quo-
tation marks is quoted from Batson).18
Because we conclude Harrison v. Ryan properly applied
Batson while Bui v. Haley erroneously conflated steps two
and three of Batson’s analysis, our holding follows that of the
Third Circuit rather than the Eleventh.
V.
[9] The California Court of Appeal impermissibly com-
pressed steps two and three of the Batson analysis into a sin-
gle step by looking to the record as a whole and the
composition of the jury to excuse the prosecutor’s failure to
18
In Hardcastle v. Horn, 368 F.3d 246, 260 (3d Cir. 2004), the Third
Circuit affirmed its holding in Harrison that when a prosecutor offers no
explanation for one of his six strikes due to his failure to remember, the
prosecutor fails to meet his burden at step two. See id. at 255 (holding the
prosecutor “failed to identify adequate bases for the striking of Venireper-
sons 11 and 12, and thus [the trial court] should have terminated its analy-
sis and found the existence of a Batson violation at step two of the
inquiry” despite the prosecutor’s articulation of neutral reasons for the ten
other challenged strikes). In Hardcastle, however, the court also held Har-
rison does not prevent the state from attempting to reconstruct voir dire
during a later habeas hearing despite the prosecutor’s failure to recall his
motivations at the time of the habeas hearing. Id. at 260.
 YEE v. DUNCAN 3339
satisfy her burden of production at step two. Because the Cali-
fornia Court of Appeal’s determination that the prosecutor
satisfied her burden of production at step two of the Batson
analysis despite her failure to offer any reason for striking
Juror X is contrary to clearly established law as determined by
the Supreme Court, the district court’s conditional grant of
Yee’s petition for a writ of habeas corpus is AFFIRMED.