Finley v. Superior Court

Filed 8/30/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
DEMOND FINLEY,
Petitioner,
v. A167311
THE SUPERIOR COURT OF (San Francisco City & County
THE CITY AND COUNTY OF Super. Ct. No. 22006989)
SAN FRANCISCO,
Respondent;
THE PEOPLE,
Real Party in Interest.
Demond Finley was charged with several firearm
possession crimes after police discovered a handgun during a
search of his car. Finley filed a motion under the California
Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1) (the Racial
Justice Act) claiming that police stopped and searched his car
because he is Black. The trial court denied Finley’s motion for
failure to state a prima facie violation of the Racial Justice Act.
Because the trial court’s review of Finley’s motion went beyond
the confines of determining whether it stated a prima facie case,
we will grant Finley’s petition for writ of mandate and direct the
trial court to rehear the motion.
1
BACKGROUND
The People charged Finley, who is Black, with possession of
a firearm by a felon (Pen. Code, § 29800, subd. (a)(1), count 1),
being a convicted person carrying a loaded firearm (Pen. Code,
§ 25850, subd. (a), count 2), being a convicted person having a
concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1),
count 3), and being a person on probation prohibited or restricted
from possessing a firearm (Pen. Code, § 29815, subd. (a), count
4). 1
At the preliminary hearing, Officer Terrell Gunn, a San
Francisco police officer, testified that he observed a blue Buick
parked on the 600 block of Minna Street in San Francisco.
According to Officer Gunn, the area is a known high-crime area.
Officer Gunn ran a license plate check of the vehicle, which came
back as belonging to an Acura, not a Buick. Officer Gunn turned
on the lights of his police vehicle, and Finley stepped out of the
vehicle with his wife. Officer Gunn told Finley to go back into the
vehicle. Finley told Officer Gunn that he and his wife had
purchased the vehicle a couple of weeks prior. Finley provided
title and registration information, which showed the car was not
stolen. After obtaining Finley’s driver’s license, Officer Gunn ran
another query and learned that Finley was on federal probation
with a search clause. Officer Gunn then searched the vehicle.
1 All further undesignated statutory references are to the
Penal Code.
2
From the rear passenger seat, he retrieved a backpack which
contained a loaded handgun without a serial number.
At the conclusion of the preliminary hearing, the trial court
denied Finley’s motion to suppress after concluding that Officer
Gunn’s probation search was lawful. The trial court held Finley
on counts 1 through 3, but discharged count 4 for lack of evidence
The People filed an information charging counts 1 through 3.
Finley then filed a motion alleging a violation of the Racial
Justice Act. He claimed that police showed racial bias or animus
toward him when they stopped and searched his vehicle in
violation of section 745, subdivision (a)(1). 2 Finley cited a
combination of factors to support his motion: (1) Officer Gunn
ran Finley’s license plates for “no apparent logical non-racial
reason”; (2) Officer’s Gunn’s justification that petitioner was
present in a high-crime area is “a notorious reference to
neighborhoods with a high concentration of Black people, or other
people of color”; (3) Officer Gunn ran a driver’s license check on
Finley despite confirming that the vehicle was not stolen;
(4) police officer body-worn cameras show that a police sergeant
on the scene told other officers that he did not want to discuss the
circumstances of the incident on camera; (5) Officer Gunn
originally stated in a police report that he found Finley’s work
identification card in the same compartment of the backpack as
2 Finley also claimed in his motion that the prosecution
“engaged in racially disparate charging” in violation of section
745, subdivision (a)(3), but he has not pursued this argument on
appeal.
3
the gun during his search, but admitted at the preliminary
hearing that he found petitioner’s identification later at the police
station; and (6) reports and studies show that Black people in
San Francisco are far more likely to be stopped by police than
other groups.
As evidentiary support for his petition, Finley relied on
Officer Gunn’s testimony from the preliminary hearing,
recordings from two body-worn cameras during the incident, and
statistics purportedly showing that Black people are more likely
to be stopped by police than White people. Finley also included a
declaration from Dante King, who petitioner represented is an
expert on policing and anti-racism. Among other things, King
opined: “In my opinion, the use of the term ‘high-crime
neighborhood’ by Officer Gunn, first in his [police report] and
then in his testimony [at the preliminary hearing], demonstrates
bias against people of color.” 3
The People opposed Finley’s motion and argued that Finley
did not adequately assert a prima facie violation of the Racial
Justice Act. The People offered evidence showing that the area
where police engaged Finley was, in fact, a high-crime area, and
noted that the Supreme Court has long stated that an area’s
reputation for criminal activity is an appropriate consideration in
3 In his motion, Finley also made a request for discovery
relating to “charging rates on pretext stops” after the current
District Attorney assumed her position. Finley admitted at the
hearing on his motion that the request was an “afterthought” and
a “throwaway line at the end of the brief.” Finley has not raised
discovery as an issue our court should address.
4
determining the reasonableness of an investigative detention.
The People also asserted that it is “common practice” in a law
enforcement traffic stop for an officer to run a query of a person’s
name, as Officer Gunn did here with Finley. The People also
argued that the comments of other officer’s on the body-worn
cameras do not demonstrate a substantial likelihood that Officer
Gunn stopped Finley and searched his car because of Finley’s
race.
The trial court concluded that Finley did not establish a
prima facie violation of the Racial Justice Act and denied his
motion. The court explained at the hearing: “When I think about
whether or not you made a prima facie case, I get to take into
account the totality of the all the circumstances that are here.
There is evidence that this is a high-crime area. There is
evidence that they find stolen vehicles here. There is evidence
that he [Officer Gunn] did not know the occupants of the vehicle
were African American until he approached the vehicle. [¶] From
this, the Court finds that a prima facie case has not been made
and that Officer Gunn gave non-race specific reasons as to why
he was patrolling this area and why he ran the plate as he did.”
The court elaborated: “The officer treated them with respect the
whole time, as he is doing it, and he checked the license—I mean,
the registration first and found out that it wasn’t—it wasn’t the
right vehicle. Then he asked for the license plate, and it came
back. And I understand it’s on body-worn camera footage, and we
expect them to be courteous. But I have seen when they are not
courteous, and I have seen when they are trying to hide things or
5
maybe going outside what they should be allowed to do. That is
one of the cases that I think we need to see for an [Racial Justice
Act] violation. The fact that to say that any time they stop
someone, run a plate in a high-crime area, that is more or less
saying every time that happens there should be a [Racial Justice
Act] hearing, and that’s definitely not the standard – that
standard is not met in the circumstances of this case.”
Petitioner challenged the trial court’s ruling by filing a
petition for writ of mandate in our court. We asked for
preliminary briefing and then issued an order to show case. We
also accepted an amicus curiae brief filed by the Office of the
State Public Defender.
DISCUSSION
Finley challenges the trial court’s ruling that he failed to
make a prima facie showing of a Racial Justice Act violation.
Finley argues the trial court improperly weighed evidence in
concluding that he did not make a prima facie case. Finley
contends that under the correct standard, in which a court
accepts the truth of the facts proffered by a defendant, he made a
prima facie showing of a violation. The People, represented by
the San Francisco District Attorney, respond that the trial court
applied the correct legal standard and properly determined that
Finley did not establish a prima facie violation.
Racial Justice Act – Statutory Overview
The Racial Justice Act states that “[t]he state shall not seek
or obtain a criminal conviction or seek, obtain, or impose a
sentence on the basis of race, ethnicity, or national origin.”
6
(Pen. Code, § 745, subd. (a).) “The [Racial Justice] Act sets forth
four categories of conduct, any of which, if proved, is enough to
‘establish’ a violation of section 745, subdivision (a).” (Young v.
Superior Court (2022) 79 Cal.App.5th 138, 147 (Young).) As
noted, only one of those categories is at issue in this case—
whether “[t]he judge, an attorney in the case, a law enforcement
officer involved in the case, an expert witness, or juror exhibited
bias or animus towards the defendant because of the defendant’s
race, ethnicity, or national origin.” (§ 745, subd. (a)(1).) 4
In Young, supra, we explained how the Racial Justice Act
operates: “Procedurally, the Act authorizes defendants to seek
relief for a violation of section 745, subdivision (a), prior to
imposition of judgment, by ‘motion . . . in the trial court.’ (§ 745,
subd. (c).) If such a motion is brought, the court shall, upon a
showing of a prima facie violation of section 745, subdivision (a),
hold a hearing at which ‘evidence may be presented by either
party, including, but not limited to, statistical evidence,
aggregate data, expert testimony, and the sworn testimony of
witnesses’; the court may appoint an independent expert; and the
defendant shall bear the burden of proof of a violation of section
745, subdivision (a) by a preponderance of the evidence. (§ 745,
subd. (c).) At the conclusion of the hearing, ‘the court shall make
4 The other three categories concern the conduct during
trial of the judge, attorneys, law enforcement officers involved in
the case, expert witnesses, and jurors (§ 745, subd. (a)(2);
whether the defendant was charged with or convicted of a more
serious offense than defendants of other races who engaged in
similar conduct (§ 745, subd. (a)(3)); and the length of the
sentence imposed by the trial court (§ 745, subd. (a)(4)).
7
findings on the record.’ (§ 745, subd. (c)(3).) And if a violation of
section 745, subdivision (a) is proved, ‘the court shall impose a
remedy specific to the violation found from the following list’
(§ 745, subd. (e)): declaration of a mistrial, discharge of the jury
and empanelment of a new jury; or dismissal of enhancements,
special circumstance allegations, or other special allegations; or
reduction of one or more charges. (§ 745, subd. (e)(1)(A)–(C).)
Claimed violations of section 745, subdivision (a) may also be
raised postjudgment, by petition for habeas corpus under section
1473, subdivision (f) or by motion to vacate an allegedly invalid
conviction or sentence under section 1473.7. The Act authorizes
a set of remedies specific to postjudgment requests for relief.
(§ 745, subd. (e)(2)(A)–(B).)” (Young, supra, 79 Cal.App.5th at
p. 148.)
As relevant here, the Racial Justice Act states that the trial
court “shall hold a hearing” if “the defendant makes a prima facie
showing of a violation,” (§ 745, subd. (c)), and specifically defines
the term “prima facie showing”: “ ‘Prima facie showing’ means
that the defendant produces facts that, if true, establish that
there is a substantial likelihood that a violation of [the Racial
Justice Act] occurred.” (§ 745, subd. (h)(2).) Under the Racial
Justice Act, “a ‘substantial likelihood’ requires more than a mere
possibility, but less than a standard of more likely than not.”
(Ibid.)
Analysis
To our knowledge, no published decision has addressed the
prima facie standard under the Racial Justice Act. But we have
8
much from which to draw, as the concept of a prima facie case is
common in both criminal and civil contexts. (E.g., People v.
Duvall (1995) 9 Cal.4th 464, 474–475 [habeas petitioner must
allege prima facie case for relief]; People v. Lewis (2021)
11 Cal.5th 952, 962 [defendant seeking to vacate murder
conviction based on natural and probable consequences theory
must assert prima facie case for relief]; People v. Tuggles (2009)
179 Cal.App.4th 339, 380 [defendant claiming juror misconduct
must make prima facie showing]; Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850 [party moving for summary judgment
bears initial burden of production to make a prima facie showing
of nonexistence of triable issue of material fact].)
The defining feature of the prima facie standard is that it
creates an initial burden on a moving party to proffer evidence
that would support a favorable ruling without a court’s
consideration of conflicting evidence put forth by the opponent. “
‘A “prima facie” showing refers to those facts which will sustain a
favorable decision if the evidence submitted in support of the
allegations by the petitioner is credited.’ ” (Spaccia v. Superior
Court (2012) 209 Cal.App.4th 93, 111.) “ ‘Prima facie evidence is
that which will support a ruling in favor of its proponent if no
controverting evidence is presented. [Citations.] It may be slight
evidence which creates a reasonable inference of fact sought to be
established but need not eliminate all contrary inferences.’ ”
(People v. Zamora (2022) 73 Cal. App.5th 1084, 1091.)
We agree with Finley that we may initially look to the
prima facie standard applicable to a petition for writ of habeas
9
corpus, just as the Supreme Court has done in other contexts.
(E.g. People v. Lewis, supra, 11 Cal.5th at p. 971 [applying the
“the analogous prima facie inquiry in habeas corpus proceedings”
to petition to vacate murder sentence].) In habeas corpus cases,
“a court must first determine whether the petition states a prima
facie case for relief—that is, whether it states facts that, if true,
entitle the petitioner to relief—and also whether the stated
claims are for any reason procedurally barred.” (People v.
Romero (1994) 8 Cal.4th 728, 737; see also Rules of Court, rule
4.551(c)(1) [at prima facie stage of habeas proceeding, “the court
takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would
be entitled to relief if his or her factual allegations were
proved”].) To establish a prima facie showing for habeas relief, a
petitioner “should both (i) state fully and with particularity the
facts on which relief is sought [citations] as well as (ii) include
copies of reasonably available documentary evidence supporting
the claim, including pertinent portions of trial transcripts and
affidavits or declarations.” (People v. Duvall, supra, 9 Cal.4th at
p. 474.) “ ‘Conclusory allegations made without any explanation
of the basis for the allegations do not warrant relief, let alone an
evidentiary hearing.’ ” (Ibid.) Importantly, a court should not
reject the petitioner’s factual allegations on credibility grounds
without first conducting an evidentiary hearing, unless the
court’s own records “contain facts refuting the allegations made
in the petition.” (In re Serrano (1995) 10 Cal.4th 447, 456; see
also In re Lawley (2008) 42 Cal.4th 1231, 1241 [“The central
10
reason for referring a habeas corpus claim for an evidentiary
hearing is to obtain credibility determinations”]; accord People v.
Johnson (2015) 242 Cal.App.4th 1155, 1163 [“Normally . . . a
‘prima facie showing’ connotes an evidentiary showing that is
made without regard to credibility . . . . [¶] This is particularly
true when [as here] the prima facie showing merely triggers an
evidentiary hearing, at which any necessary credibility
determinations can still be made.”].)
Although we agree that the type of information a defendant
should present at the prima facie stage of a Racial Justice Act
case is similar to the information a defendant should present in a
habeas petition, the standard by which a court assesses the
information is somewhat different. In a habeas proceeding, “the
petitioner bears a heavy burden initially to plead sufficient
grounds for relief, and then later to prove them.” (People v.
Duvall, supra, 9 Cal.4th at p. 474.) The standard is not as
stringent in a Racial Justice Act case. Under the Racial Justice
Act, the court does not ask if the defendant proffered facts
sufficient to demonstrate actual entitlement to relief. Rather, the
court asks if a defendant has proffered facts sufficient to show a
“substantial likelihood”–defined as “more than a mere possibility,
but less than a standard of more likely than not”–that the Racial
Justice Act has been violated. (§ 745, subd. (h)(2).) The prima
facie threshold is thus lower than the preponderance of the
evidence standard required to establish an actual violation of the
Racial Justice Act. (§ 745, subd. (a).)
11
Furthermore, imposing a “heavy burden” at the prima facie
stage in a Racial Justice Act case would be contrary to the Act’s
structure and purpose. By enacting the Racial Justice Act, the
Legislature intended “to depart from the discriminatory purpose
paradigm in federal equal protection law,” a standard that was “
‘nearly impossible to establish.’ ” (Young, supra, 79 Cal.App.5th
at pp. 149–150.) The Legislature also imposed “escalating
burdens of proof” within the statutory scheme, with a lower
standard of proof at the prima facie stage (“substantial
likelihood”) than at an evidentiary hearing (“preponderance of
the evidence”). (Id. at p. 160.) The Legislature could not have
intended to place a “heavy burden” on a defendant at the prima
facie stage of a Racial Justice Act case.
The principles that apply to a defendant’s prima facie
showing extend to expert declarations and statistical information
that accompany a motion under the Racial Justice Act; a court
should not accept the truth of this evidence if it is “conclusory”
and “made without any explanation.” (Duvall, supra, 9 Cal.4th
at p. 474.) In this regard, the court serves a “gatekeeping role” to
exclude expert opinions and statistics that are speculative or
unsupported, similar to the role a court serves during trial and
other evidence-based proceedings when a party presents expert
evidence. (Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 753 (Sargon); see People v.
Azcona (2020) 58 Cal.App.5th 504, 513 [describing trial court’s
gatekeeping role during criminal trial].) The court’s gatekeeping
function aligns with its assessment of whether a defendant has
12
made a prima facie showing for relief, as “[t]he trial court’s
gatekeeping role does not involve choosing between competing
expert opinions.” (Sargon, supra, 55 Cal.4th at p. 772.) Rather,
the focus “ ‘must be solely on principles and methodology, not on
the conclusions that they generate.’ ” (Ibid.)
To summarize, a defendant seeking relief under the Racial
Justice Act must state fully and with particularity the facts on
which relief is sought, and include copies of reasonably available
documentary evidence supporting the claim. The court should
accept the truth of the defendant’s allegations, including expert
evidence and statistics, unless the allegations are conclusory,
unsupported by the evidence presented in support of the claim, or
demonstrably contradicted by the court’s own records. 5 (See
People v. Harden (2022) 81 Cal.App.5th 45, 56 [defendant did not
make prima facie showing for resentencing under new felony
murder rule when “record of conviction irrefutably establishes as
a matter of law that the jury determined [the defendant] was the
actual killer”].) And again, the court should not make credibility
determinations at the prima facie stage.
In this case, while we commend the trial court for its
thoughtful consideration of Finley’s motion, we must conclude
that the court applied an incorrect standard of review at the
prima facie stage. The court’s statements during the hearing on
5 For example, the record could irrefutably establish the
falsity of a defendant’s allegations if the defendant alleges a
prosecutor used racially discriminatory language in front of the
jury (§ 745, subd. (a)(2)), but a transcript of the trial shows the
prosecutor used no such language.
13
Finley’s motion demonstrate that it weighed all the evidence
presented during the earlier preliminary hearing—both favorable
and unfavorable to Finley’s motion—rather than focusing on and
accepting as true the evidence that supported Finley.
As was the case here, a motion under the Racial Justice Act
will often cite testimony and other evidence from the preliminary
hearing. But a court’s role at a preliminary hearing is different
than its role at the prima facie stage of a motion under the Racial
Justice Act. At a preliminary hearing, “the magistrate may
weigh the evidence, resolve conflicts, and give or withhold
credence to particular witnesses.” (Johnson v. Superior Court
(1975) 15 Cal.3d 248, 252.) At the prima facie stage of a Racial
Justice Act motion, by contrast, the trial court must consider
whether the motion and its supporting evidence state facts that,
“if true, establish that there is a substantial likelihood that a
violation” occurred (§ 745, subd. (h)(2), italics added), and should
not weigh the evidence or make credibility determinations, except
in the rare case where the record “irrefutably establishes” that a
defendant’s allegations are false. (People v. Harden, supra,
81 Cal.App.5th at p. 56.)
The trial court here strayed from the prima facie standard
in at least two instances during the motion hearing. First, the
court explained that “[t]here is evidence that [Officer Gunn] did
not know the occupants of the vehicle were African American
until he approached the vehicle.” While this is true based on
Officer Gunn’s testimony at the preliminary hearing, Finley
argued there was other evidence demonstrating that Officer
14
Gunn could see inside the vehicle before approaching it, including
body-worn camera footage of the stop showing it was easy to see
inside the vehicle through the windows. At the prima facie stage,
the trial court should have focused on the accuracy and
significance of Finley’s proffered facts, rather than weighing his
evidence against Officer Gunn’s contrary preliminary hearing
testimony. (People v. Romero, supra, 8 Cal.4th at p. 737.)
Second, in denying Finley’s motion, the court observed,
“[t]here is evidence that this is a high-crime area” when referring
to the area where Finley’s car was stopped and searched. That
evidence was not proffered by Finley as part of his prima facie
case, but was based on Officer Gunn’s testimony at the
preliminary hearing, or possibly by statistical evidence presented
by the People in opposition to Finley’s motion. Once again, the
focus should have been on the facts Finley asserted in his motion,
not contrary evidence. (People v. Romero, supra, 8 Cal.4th at
p. 737.) Relatedly, the court did not address the expert
declaration Finley submitted with his motion, including the
expert’s opinion that “the use of the term ‘high-crime
neighborhood’ by Officer Gunn, first in his [police report] and
then in his testimony [at the preliminary hearing], demonstrates
bias against people of color.” The court should have reviewed the
opinion to determine if it was conclusory, speculative, or
unsupported. (Sargon, supra, 55 Cal.4th at p. 753.) If the court
determined the opinion passed this preliminary threshold, it was
required to accept the truth of the opinion at this stage and
consider it as part of Finley’s prima facie case.
15
The People argue that the trial court “afforded the
conclusory statements in the [expert] declaration little weight
because they were unrelated to the facts here and unsupported
by [Finley’s] proffered evidence.” The People also point to the
significance of “high-crime area” locations in Fourth Amendment
jurisprudence (see People v. Souza (1994) 9 Cal.4th 224, 240
[area’s reputation for criminal activity is an appropriate
consideration in assessing reasonableness of detention]), and
claim that the data they presented about the crime rate in this
case disprove the expert’s opinion. We are not persuaded. There
is no indication the trial court rejected the expert declaration
because it was conclusory, irrelevant, or unsupported by
evidence. Instead, the court’s statements during the hearing
indicate that it considered the declaration but disregarded it in
favor of other evidence that supported the People’s position.
Notably, the court stated with regard to the declaration, “I think
that everyone would agree that a lot of the things in this
declaration are true.” But in its ruling, the court did not address
the declaration, and instead accepted evidence that the area was,
in fact, a high-crime area without addressing the expert’s opinion
regarding the meaning and significance of the phrase “high-crime
area.” As we have repeated, the focus at this stage of the Racial
Justice Act proceedings should have been on the allegations and
supporting evidence proffered by Finley, not evidence supporting
the People’s argument.
The People also provide race-neutral explanations for the
other facts Finley proffered with his motion, such as Officer
16
Gunn’s misstatement about when he located Finley’s
identification in the backpack, and the police sergeant’s comment
that the search should be discussed off camera. At the prima
facie stage, Finley “ ‘need not eliminate all contrary inferences’ ”
for the facts he presented. (People v. Zamora, supra,
73 Cal.App.5th at p. 1091.) The People’s explanations would be
more appropriately considered at an evidentiary hearing if, upon
remand, the trial court concludes that Finley has satisfied his
burden of making a prima facie showing. (§ 745, subd. (c) [“If a
motion is filed in the trial court and the defendant makes a prima
facie showing of a violation of subdivision (a), the trial court shall
hold a hearing.”].)
Because the trial court did not apply the correct legal
standard at the prima facie stage, we will direct the court to
conduct a new hearing to determine whether Finley has asserted
a prima facie violation of the Racial Justice Act. (See Richards v.
CH2M Hill, Inc. (2001) 26 Cal.4th 798, 824 [“Because the
standard we announce is new, the proper course is to remand to
the trial court for application of the . . . test formulated above to
the facts of this case.”].) We express no opinion as to whether
Finley has made a prima facie case of a violation. As alluded to
above, if the trial court determines Finley has made a prima facie
showing, the court must conduct an evidentiary hearing where it
may consider evidence and arguments submitted by the People,
make credibility determinations, and weigh the evidence.
17
DISPOSITION
Let a peremptory writ of mandate issue commanding
respondent superior court to vacate its January 6, 2023 order
denying Finley’s motion under the Racial Justice Act, and to hold
a new hearing to determine whether Finley has established a
prima facie violation of the Racial Justice Act.
BROWN, P. J.
WE CONCUR:
STREETER, J.
GOLDMAN, J.
Finley v. Superior Court (A167311)
18
Trial Court: San Francisco City & County Superior Court
Trial Judge: Hon. Eric Fleming
Counsel: Manohar Raju, San Francisco City & County Public
Defender, Matt Gonzalez, Ilona Yañez, Sylvia Nguyen, San
Francisco City & County Deputy Public Defenders, for
Petitioner.
Mary K. McComb, State Public Defender, Lisa M. Romo,
Catherine White, Deputy State Public Defenders, as
Amicus Curiae on behalf of Petitioner.
Brooke Jenkins, San Francisco City & County District
Attorney, Maria Shih, Natalie Fuchs, Nicholas J. Hunt,
San Francisco City & County Deputy District Attorneys, for
Respondent.