                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JAN 08 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

TINO PESE,                                       No. 09-16387

              Petitioner - Appellant,            D.C. No. 3:05-cv-04199-PJH

  v.
                                                 MEMORANDUM*
D. L. RUNNELS, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                     Argued and Submitted December 4, 2013
                            San Francisco, California

Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.

       Because the California Court of Appeal applied a standard of review

subsequently rejected by the Supreme Court in Johnson v. California, 545 U.S. 162




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(2005) as too burdensome to a defendant, we review de novo Pese’s Batson claim.

Cooperwood v. Cambra, 245 F.3d 1042, 1047-48 (9th Cir. 2001).

      In so doing, we conclude from the trial record and all relevant circumstances

that the challenges of which Pese complains were not exercised in such a manner

that established a prima facie case of racial discrimination, i.e., done with a motive

to exclude either Ms. Cooper, Ms. Mills, or Mr. Lewis because of their race.

      Cooper, Mills, and Lewis were African-American; Pese a Samoan. There

were no racial issues in the case. Trial counsel’s Batson objection lacked any

substantive content. When asked to respond to the prosecutor’s defense of his

challenges, counsel’s response was, “I don’t have anything to say at this point.”

He followed up this statement by merely arguing that the exclusion for racial

reasons of one prospective juror was enough to support his challenge. Moreover,

the prosecutor used only three of his fourteen strikes to challenge African

Americans and, because Pese only challenges two of those strikes, the prosecutor

only challenged 40% of the African American prospective jurors.

      The trial judge, upon whom we rely in the first instance to police this issue,

Johnson, 545 U.S. at 170, concluded based upon Cooper’s and Lewis’s

questionnaires and voir dire that “adequate reasons” other than race did exist to

exclude them from service. We note in this connection Lewis’s assertive “you


                                         -2-
figure it out” answer. Cooper’s son was in prison, and she articulated her belief

that the criminal justice system was unfair. Pese concedes that there were race-

neutral reasons for striking her. Mills’s misinformed answer regarding a

defendant’s right to present no evidence speaks for itself.

      Finally, the district court conducted a comparative juror analysis and found

nothing to support Pese’s claim. We agree. Accordingly, Pese has not satisfied his

never-shifting burden of persuasion. Rice v. Collins, 546 U.S. 333, 338 (2006).

      AFFIRMED.




                                         -3-
                                                                                 FILED
MURGUIA, Circuit Judge, dissenting:                                                JAN 08 2014

                                                                              MOLLY C. DWYER, CLERK
      I respectfully dissent. The first step of the Batson inquiry is not onerous.
                                                                              U.S. COURT OF APPEALS



Johnson v. California, 545 U.S. 162, 170 (2005). The prosecutor struck three out

of the four African-American prospective jurors. I conclude that this

disproportionate number of stricken African-American venirepersons is sufficient

to establish a prima facie case under Batson. See Williams v. Runnels, 432 F.3d

1102, 1107 (9th Cir. 2006) (a statistical disparity alone may be sufficient to

establish a prima facie case).

      Although the trial judge observed that race-neutral reasons existed for

striking Cooper and Lewis, “it does not matter that the prosecutor might have had

good reasons to strike the prospective jurors. What matters is the real reason they

were stricken.” Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004). Without

the prosecutor’s reasons for the strikes, the district court’s comparative juror

analysis is unable to compare the African-American jurors with other jurors on the

basis of the prosecutor’s stated reasons for striking them. See Johnson v. Finn, 665

F.3d 1063, 1071 (9th Cir. 2011) (the existence of race-neutral reasons for a

peremptory strike “cannot negate the existence of a prima facie showing in the first

instance”).

      Finally, the fact that Pese is Samoan, not African-American, does not

prevent him from making out a prima facie case under Batson. See United States v.
Vasquez-Lopez, 22 F.3d 900, 901 (9th Cir. 1994) (“Peremptory challenges based

solely on race are prohibited even if . . . the defendant is of a different race than the

juror being struck.”). I would remand to the district court to give the defendant the

opportunity to hear and address the prosecutor’s reasons for striking each

prospective juror.
