                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

                          STATE OF ARIZONA,
                              Appellee,

                                   V.


                      FRANCISCO MIGUEL URREA,
                              Appellant.


                          No. CR-17-0261-PR
                          Filed July 11, 2018

            Appeal from the Superior Court in Pinal County
         The Honorable Dwight P. Callahan, Judge Pro Tempore
                          No. CR201402545
                             AFFIRMED

             Opinion of the Court of Appeals, Division Two
                       242 Ariz. 518 (App. 2017)
             AFFIRMED IN PART; VACATED IN PART


COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Phoenix, Amy Pignatella Cain
(argued), Assistant Attorney General, Criminal Appeals Section, Tucson,
Attorneys for State of Arizona

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

Amy Kalman, Brian Thredgold, Arizona Attorneys for Criminal Justice,
Phoenix; Jared G. Keenan (argued), Kathleen E. Brody, American Civil
Liberties Union Foundation of Arizona, Phoenix, Attorneys for Amici
Curiae
                             STATE V. URREA
                            Opinion of the Court


JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES
PELANDER, TIMMER, GOULD, and LOPEZ joined.



JUSTICE BOLICK, opinion of the Court:

¶1           During a trial on narcotics charges, the prosecutor violated
Defendant’s equal protection rights by using peremptory strikes to remove
Hispanic jurors from the venire in violation of Batson v. Kentucky, 476 U.S.
79 (1986). We hold that the trial court’s remedy reinstating the wrongfully
excluded jurors to the venire was proper.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2           Defendant Francisco Miguel Urrea was charged with and
found guilty of transportation of a narcotic drug for sale. During jury
selection, Urrea raised a Batson challenge, contending that five of the
prosecutor’s six peremptory strikes targeted potential jurors with
“Hispanic ethnic background[s].”

¶3             The trial court conducted a Batson analysis and concluded
that the prosecutor could not establish a race-neutral justification for
striking three of the challenged jurors. Although it found a Batson violation,
the court found no misconduct on the prosecutor’s part. The court ruled
that the prosecutor forfeited those three strikes and restored the three jurors
to the venire. Urrea moved for a mistrial and dismissal of the entire venire.
The court denied the motion and empaneled the first nine jurors who had
not been struck, including two of the reinstated jurors.

¶4             A divided panel of the court of appeals affirmed. State v.
Urrea, 242 Ariz. 518 (App. 2017). The court held that reinstatement of the
wrongfully excluded jurors to the venire was permissible under Batson and
proper under the circumstances. Id. at 525–26 ¶¶ 21–25. The dissenting
judge stated that restoring improperly challenged jurors to the venire was
permissible but an “incomplete” remedy, id. at 529 ¶ 39 (Miller, J.,
dissenting), and expressed that the court should have restored defense
counsel’s peremptory challenges or started the jury selection process anew,
id. at 530 ¶ 42.

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                            Opinion of the Court


¶5            We granted review because the appropriate remedies for a
Batson violation present an issue of statewide concern and first impression
in Arizona. We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.

                               DISCUSSION

¶6              We review a trial court’s Batson remedy for abuse of
discretion. See United States v. Walker, 490 F.3d 1282, 1294 (11th Cir. 2007)
(citing Batson, 476 U.S. at 99 n.24). We review questions of law de novo.
State v. Miles, 243 Ariz. 511, 513 ¶ 7 (2018).

¶7           In Arizona, each side in a noncapital criminal case is allowed
six peremptory jury strikes. Ariz. R. Crim. P. 18.4(c)(1)(B). After
peremptory challenges are exercised, the court empanels the requisite
number of jurors and alternates and then excuses any jurors remaining.
Ariz. R. Crim. P. 18.5(g).

¶8             In Batson, the Supreme Court held that the “Equal Protection
Clause guarantees the defendant that the State will not exclude members of
his race from the jury venire on account of race.” 476 U.S. at 86. This
guarantee constrains “the State’s privilege to strike individual jurors
through peremptory challenges.” Id. at 89. Unlike challenges for cause,
which are necessary to ensure a defendant’s trial by an impartial jury,
peremptory challenges are “not of constitutional dimension,” United States
v. Martinez-Salazar, 528 U.S. 304, 311 (2000) (quoting Ross v. Oklahoma, 487
U.S. 81, 88 (1988)), and thus must yield to the defendant’s right to a jury
chosen without racial or ethnic bias. Failure to safeguard that right “casts
doubt on the integrity of the judicial process and places the fairness of a
criminal proceeding in doubt.” Powers v. Ohio, 499 U.S. 400, 411 (1991)
(citation and internal quotation marks omitted). The Court also recognized
that the right not to be excluded on the basis of race extends to the jurors
themselves: “An individual juror does not have a right to sit on any
particular petit jury, but he or she does possess the right not to be excluded
from one on account of race.” Id. at 409.

¶9             Batson set forth a three-step process to determine a violation.
First, the defendant must show purposeful discrimination, which may be
demonstrated by circumstantial evidence of disproportionate impact,
Batson, 476 U.S. at 93, including a pattern of strikes of jurors from the

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                             Opinion of the Court


defendant’s racial or ethnic group, id. at 96–97. “Once the defendant makes
a prima facie showing, the burden shifts to the State to come forward with
a neutral explanation” for the strikes. Id. at 97. If such explanation is
offered, the trial court will then “have the duty to determine if the
defendant has established purposeful discrimination.” Id. at 98; accord State
v. Garcia, 224 Ariz. 1, 10 ¶ 21 (2010).

¶10            The State concedes the Batson violations. Thus, the narrow
issue here is whether the trial court’s remedy of restoring the impermissibly
excluded jurors to their prior places on the venire and forfeiting the State’s
peremptory challenges was sufficient, as the State asserts, or whether the
trial court should have declared a mistrial and begun jury selection anew
with a different venire, as Urrea urges.

¶11             The Supreme Court in Batson and subsequent cases has not
provided extensive guidance on appropriate remedies, but its brief
consideration of the matter in Batson itself is highly informative, and the
Court has not revisited it in the ensuing thirty-two years. The Court stated
that, “[i]n light of the variety of jury selection practices followed in our state
and federal trial courts, we make no attempt to instruct these courts how
best to implement our holding today.” Batson, 476 U.S. at 99 n.24.
Specifically, the Court “express[ed] no view on whether it is more
appropriate in a particular case, upon a finding of discrimination against
black jurors, for the trial court to discharge the venire and select a new jury
from a panel not previously associated with a case or to disallow the
discriminatory challenges and resume selection with the improperly
challenged jurors reinstated on the venire.” Id. (citation omitted). We refer
to the first approach, which Urrea seeks here, as “the mistrial option,” and
the second, which the trial court ordered and the court of appeals approved,
as “the restoration option.”

¶12           From Batson’s language we derive three inferences. First, in
declining to express which option was “more appropriate,” the Court
implied that either was “appropriate.” Id. Second, the appropriate remedy
may depend on the circumstances of a “particular case.” Id. Finally, the
restoration option contemplates that the wrongfully excluded jurors will be
“reinstated on the venire.” Id.

¶13           Elsewhere in the decision, the Court analogized the Batson
inquiry to a discrimination claim under Title VII of the Civil Rights Act of

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                             Opinion of the Court


1964, 42 U.S.C. §§ 2000e to2000e-17, under which a very similar three-part
test is used to determine intentional discrimination. Id. at 98 n.21; see, e.g.,
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). In that
context, a proper remedy makes the victim of discrimination whole by
restoring the injured party to the situation that would have existed absent
discrimination. See, e.g., Albermarle Paper Co. v. Moody, 422 U.S. 405, 418–19
(1975). Restoring the wrongfully excluded jurors to the positions they
previously occupied in the venire constitutes classic make-whole relief
because it recreates the status quo ante.

¶14            As the court of appeals recounted, Urrea, 242 Ariz. at 523–24
¶¶ 17–20, courts have taken varying approaches to Batson remedies, with
some preferring the mistrial option, others favoring restoration, and a
majority allowing the trial court to choose either remedy, see, e.g., State v.
Parker, 836 S.W.2d 930, 936 (Mo. 1992) (preferring restoration to maximize
“judicial time and resources”); State v. Jones, 358 S.E.2d 701, 704 (S.C. 1987),
abrogated on other grounds by State v. Chapman, 454 S.E.2d 317, 320 (S.C. 1995)
(remanding for a Batson hearing with direction to grant a new trial if Batson
violation is found); Coleman v. Hogan, 486 S.E.2d 548, 549 (Va. 1997)
(agreeing “with majority of states that the choice of remedy should be
within the discretion of the trial court”).

¶15           The dividing line in many cases is whether the improper
strikes were made in the challenged jurors’ presence, which might affect
their impartiality. See, e.g., State v. McCollum, 433 S.E.2d 144, 159 (N.C. 1993)
(approving mistrial where jurors were exposed to the impermissible strikes
to ensure jurors “remain unaffected by that recent discrimination, and to
render an impartial verdict without prejudice toward either the State or the
defendant”). Where, as here, the strikes, Batson challenges, and trial court
ruling occurred outside the jurors’ presence, restoring the wrongfully
excluded jurors to the venire is the preferable remedy. See, e.g., Parker, 836
S.W.2d at 940 (noting restoration “better protects the equal protection rights
of defendants and venirepersons and facilitates the efficient administration
of justice”). By contrast, as we have often recognized, “mistrial is an
extraordinary remedy.” State v. Payne, 233 Ariz. 484, 504 ¶ 61 (2013). The
California Supreme Court observed in People v. Willis that a mistrial and
dismissal of the venire in the Batson context may “accomplish nothing more
than to reward improper voir dire challenges,” as the prosecutor is able to
accomplish the purpose of wrongfully eliminating jurors. 43 P.3d 130, 137
(Cal. 2002). Restoring the improperly excluded jurors is also the only
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                             Opinion of the Court


remedy that vindicates the rights of jurors to serve free from discrimination,
and it advances the right of crime victims to a speedy trial. See Ariz. Const.
art. II, § 2.1(10).

¶16            Like the court of appeals, we do not adopt a bright-line rule
that trial courts must follow in fashioning Batson remedies. As the Supreme
Court has recognized, the trial court plays a “pivotal role” in the Batson
process, Snyder v. Louisiana, 552 U.S. 472, 477 (2008), and it is in the best
position not only to evaluate the claims but also to assess the most
appropriate remedy under the circumstances. For that reason, a deferential
abuse-of-discretion standard is appropriate in reviewing such remedies.
See Walker, 490 F.3d at 1294.

¶17           Nor do we construe Batson to forbid different or additional
remedies. Given that a Batson violation is, by definition, the conscious
exclusion of a potential juror based on impermissible criteria, Garcia, 224
Ariz. at 10 ¶ 21, additional trial remedies such as forfeiting the misused
peremptory challenges are also permissible, subject to abuse-of-discretion
review.

¶18           Beyond restoring the wrongfully excluded jurors to the
venire in this case, for instance, the trial court also forfeited the three
challenges that the State attempted to use in a discriminatory fashion. Both
the dissenting judge on the court of appeals and amici argue for additional
remedies here, but Urrea waived such arguments by exclusively seeking a
mistrial. (Nor did he preserve the state constitutional arguments advanced
by amici.)

¶19            We disavow any suggestion in State v. Harris that “the
challenged jurors must be allowed to sit” on the petit (trial) jury. 157 Ariz.
35, 36 (1988). That decision dealt only with the proper timing of Batson
challenges, not remedies. “A defendant is not entitled to be tried by any
particular jury but only by one which is fair and impartial.” State v. Hilliard,
89 Ariz. 129, 133 (1961); accord State v. Morris, 215 Ariz. 324, 334 ¶ 40 (2007).
The trial court vindicated that right by restoring the improperly challenged
jurors to the positions they would have occupied absent discrimination.

¶20          We reiterate that Batson made clear that the two remedies it
described, mistrial or restoration, were constitutionally adequate. The
touchstone of a minimally adequate remedy is to place the defendant in the

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                         STATE V. URREA
                        Opinion of the Court


position he or she would have occupied absent discrimination. We are
satisfied that the remedy here was not an abuse of the trial court’s
considerable discretion.

                          CONCLUSION

¶21         We affirm Urrea’s conviction and sentence.   We vacate
paragraphs 13–33 of the court of appeals’ opinion.




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