By David M. Greenwald
Executive Editor
San Francisco, CA – In what is believed to be the first motion of its kind to be granted an evidentiary hearing, San Francisco Superior Court Judge Alexandra Gordon granted an evidentiary hearing to Fantasy Decuir and Lamonte Mims.
The two moved pursuant to PC 745, the California Racial Justice Act, to dismiss the special circumstances allegation of felony murder during the course of a robbery. They argue that “they have been “charged with a more serious offense than defendants of other races … who have engaged in similar conduct and are similarly situated.”
Decuir contends, “[a] longer or more severe sentence was imposed on [her] than was imposed on other similarly situated individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for the same offense on defendants in cases with victims of one race, ethnicity, or national origin than in cases with victims of other races, ethnicities, or national origins, in the county where the sentence was imposed.”
In 2017, Mims and Decuir were convicting of robbing a 70 year old white man of his camera at Twin Peaks in San Francisco. At the time of the robbery, the victim was fatally shot. They then robbed two other tourists at gun point.
The Legislature enacted the Racial Justice Act in 2020 with the expressed intent “to eliminate racial bias from California’s criminal justice system” and “to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.”
Under PC 745, the burden is on the defense to show by a preponderance of the evidence that he or she “was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who have engaged in similar conduct and are similarly situated, and the evidence establishes that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the 
defendant’s race, ethnicity, or national origin in the county where the convictions were sought or obtained.”
Here the defense relies on two experts who analyzed murder charges and 141 murder charges that could qualify for special circumstance allegations in San Francisco between 2011 and 2021 and “concluded that Black defendants, and defendants of color, were disproportionately charged with special circumstances.”
75 percent of defendants charged with special circumstances in San Francisco are people of color, even though just “5.7 percent of San Francisco residents are Black, Black defendants account for roughly 55 percent of the 58 cases that were charged with special circumstances between 2011 and 2020.”
Dr. Carney’s probability models concluded that it is far more likely than not that “there is a persistent pattern of bias towards higher special circumstances charging rates when a victim is white.”
The court spent considerable discussion of what constitutes a prima facie showing. The court writes, “the distinct prerequisite that to establish a prima facie showing, a defendant must establish facts which, if true, establish that there is a substantial likelihood that a violation of the Act occurred, does not mean that the court departs from its usual arid fairly circumscribed gatekeeping function.”
He the court notes, “Throughout the legislative history and findings is the opinion that racial bias perpetuates in our criminal justice system largely because the standard for proving, and thus impeding it, is impossibly high.”
The judge here ruled that the defense have made the required prima facie showing.
Here while rejecting a more expansive reading of “similarly situated” “to include any murder where any special circumstance has, or could have, been charged, as Defendants promote,” the court nevertheless notes, “he Legislature deliberately set lower burdens of proof so that defendants would have a genuine opportunity to discover and prove instances of potential racial bias and inequity.”
The judge notes, “Defendants have offered a statistical analysis of charging decisions by the San Francisco County District Attorney’s Office that, if true, appear significant.”
The DA’s office counters that “(it) has no set policy or criteria for the determination of when to charge special circumstance allegations.” But the defense claims that this practice “of unfettered prosecutorial discretion,” “as in the Baldus Study in McCleskey, has the potential to and has led to racial disparities in charging.”
The judge rules, “Taken together and as true, these findings are sufficiently significant to establish a prima facie claim under the Act.”
The People, the judge continues, “in arguing that this showing is inadequate, identify several purported inadequacies in Defendants’ evidence. Many of these disputes are better directed and addressed at the evidentiary hearing.”
