A homicide defendant for an alleged drive-by shooting will have a hearing to argue that the Riverside District Attorney’s Office discriminated against him when it decided to bring the death penalty.
Michael Mosby III was charged with the drive-by shooting of Darryl King-Divens, a bicyclist on Riverside’s Hemlock Avenue, at 2:30 p.m., April 8, 2014.
Mosby was convicted of attempting to kill Leon Merritt on April 1, 2014, shooting Pedro Rodriguez on April 17, 2014, at 11:30 p.m. and fatally shooting William Quezada in Moreno Valley on April 23, 2014, according to a Jan. 25 appellate ruling involving his case.
Mosby has claimed the District Attorney’s decision to seek the death penalty violated the California Racial Justice Act of 2020. He argues that he was charged with a more serious offense than defendants of other races who engaged in similar conduct.
The District Attorney has maintained that Mosby was being prosecuted with the death penalty because of Mosby’s two prior murder convictions and the drive-by shooting special circumstance.
Mosby’s motion was denied by Riverside Superior Judge Bernard Schwartz, but was just reinstated by the Court of Appeal, Fourth District, Division Two in a published opinion.
The appellate decision does not conclude that the DA’s office discriminated. It only gives Mosby a hearing to argue his case. The office is also not accused of intentional discrimination. The Racial Justice Act was designed to correct issues of implicit bias, according to a concurring opinion.
Mosby must have proved two preliminary claims before he gets a hearing, according to the ruling:
- That he personally was being charged more harshly than similarly situated defendants of other ethnicities
- That statistical evidence shows a historic pattern of racial inequality in Riverside County’s death sentence charges
Schwartz had found that Mosby did prove a historic pattern of racial inequality in the county’s death-sentence charges, but that he did not prove that he was personally being charged more harshly. Mosby did not compare the individual facts of cases, Schwartz had ruled.
The Court of Appeal disagreed. They said that factual examples of white defendants who committed murder but were not charged with the death penalty in cases involving similar conduct and situations satisfied Mosby’s first claim.
The ruling also said that the burden should have been put on the District Attorney’s Office to prove that there were race-neutral reasons for the differences in death-penalty cases among ethnicities.
“Once Petitioner presented this evidence, the trial court should have ordered an evidentiary hearing at which the burden shifted to the District Attorney to show the race-neutral reasons for the disparity in seeking the death penalty against Petitioner, which include the relevant factors to charges that were not influenced by implicit or systemic racial bias.”
Statistics
Mosby relied upon statistics from January 2016 through December 2021, which were analyzed by statistics professor Marisa Omori.
The District Attorney’s Office argued that Mosby had to compare the facts of cases involving non-minority defendants to his case, and that the other cases in the analysis did not include a drive-by shooting with two prior murder convictions. The office also argued that the study did not account for statistical differences in ethnic groups based on small sample sizes, and that it should not have included juvenile cases, which are not eligible for the death penalty.
Peterson concluded that African-Americans account for 20% of Riverside’s murder defendants, 39% of defendants that received death-penalty notices and 36% of Riverside’s death-sentence convictions.
His study controlled for prior criminal history, gender, the number of victims, the use of a firearm and a crime location, the appellate ruling said. African-American defendants were 1.71 times more likely to be charged with a special circumstance, 9 times more likely to receive a death penalty notice and 14 times more likely to have received a death sentence than Caucasian defendants, his study found.
Specific cases
Mosby also provided examples of Caucasian defendants who were not charged with the death penalty: Robert Lars Pape, who killed and burned three people; Jared Bischoff who killed his girlfriend and a man who was flirting with her; James Coon, who shot a store clerk during a robbery because the clerk tried to take his photo; Melissa Unger, who was involved in a gang murder with kidnapping and torture; Owen Shover, who was accused of killing his girlfriend; Andrew Burke, who stabbed his adopted parents and grandparents to death; and Maxamillion Eagle, who raped and strangled a woman, and had a prior conviction of assault with a deadly weapon — according to the appellate ruling.
Schwartz had questioned whether the victims’ families in these cases had asked for the death penalty. The District Attorney’s Office argued that these defendants were substantially different from Mosby because of their histories of mental illness, statutory limitations, criminal history or other differences.
The Court of Appeal found that Mosby’s examples had satisfied his initial claim, and that he was entitled to a hearing.
Menetrez’ concurring opinion
Appellate Justice Frank Menetrez wrote a concurring opinion. He wrote that statistical evidence on its own can make a case for a hearing, and that Mosby’s statistical argument managed to do so.
His opinion said that Mosby’s claim does not accuse the District Attorney’s Office of intentional discrimination, but that the Racial Justice Act was designed to remedy problems caused by implicit bias.
“The statute does not require—either for a prima facie case or to prevail at a subsequent hearing—that Mosby allege or prove that the prosecutors are racist, and nothing in the record suggests that he is attempting to do so,” Menetrez wrote.
Case information
Appellate Justice Douglas Miller wrote the opinion, which Justice Carol Codrington joined.
Deputy District Attorney W. Matthew Murray handled the oral argument.
Claudia Van Wyk of the ACLU made oral argument for Mosby.
Criminal Case No. RIF1604905
Case No. E080924
Read the appellate ruling here.
