# Giang Thuy Nguyen v. Scott Frauenheim > District Court, C.D. California · November 23, 2020 URL: https://www.frixlaw.com/law-library/cases/10039563 ## Case - **Court:** District Court, C.D. California - **Decided:** November 23, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10039563 ## How later opinions describe it (automated extraction) - finding a prima facie case of discrimination against Latino 27 prospective jurors where one Latino juror was seated; the seated juror’s presence was “helpful to 28 the State” but “not dispositive” ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GIANG THUY NGUYEN, ) Case No. SA CV 17-1526 FMO (JPR) ) 12 Petitioner, ) ORDER ACCEPTING FINDINGS AND ) RECOMMENDATIONS OF UNITED 13 v. ) STATES MAGISTRATE JUDGE ) 14 SCOTT FRAUENHEIM, ) ) 15 Respondent. ) ) 16 17 The court has reviewed the First Amended Petition for Habeas Corpus (Dkt. 49, “FAP”), 18 records on file, and the Report and Recommendation of United States Magistrate Judge (Dkt. 51, 19 “R&R”), which recommends that judgment be entered denying the FAP and dismissing this action 20 with prejudice. (See id. at 77); 28 U.S.C. § 636(b)(1). On October 18, 2020, petitioner filed 21 Objections to the Report and Recommendation [] (Dkt. 52, “Objections”), in which he reiterates 22 the arguments raised in his FAP and Reply. (See id. at 6-12). Respondent did not respond to the 23 Objections. Having reviewed the R&R and petitioner’s Objections to the R&R, the court concludes 24 as follows. 25 First, the court notes that the trial court and the California Court of Appeal applied the 26 correct legal standard to petitioner’s Batson challenge. The California Court of Appeal noted that 27 “because appellants’ trial occurred seven years after [Johnson v. California, 545 U.S. 162, 125 28 S.Ct. 2410 (2005)] was decided, we presume the trial court applied the correct standard in 1 deciding Giang’s Wheeler motion.” People v. Johnson, 2016 WL 865485, *7 n. 8 (Cal. Ct. App. 2 2016). The trial court record, which the Magistrate Judge aptly quoted, supports the Court of 3 Appeal’s presumption. (See Dkt. 51, R&R at 33-34) (“[T]he trial court applied the correct standard, 4 noting that Petitioner had to make only an ‘initial,’ ‘prima facie showing’ that the ‘prosecutor [wa]s 5 being prejudiced’ and then finding ‘under the totality of the circumstances’ that a ‘prima facie case 6 was [not] made[.]’”) (internal citations omitted). 7 Second, petitioner does not object to the Magistrate Judge’s limitation of her inquiry to 8 whether petitioner made a prima facie case of ethnicity-based discrimination given that “neither 9 the Supreme Court nor the Ninth Circuit has recognized that combined race- or ethnicity-gender 10 groups . . . may establish a cognizable group for Batson purposes.” (Dkt. 51, R&R at 31-32); (see, 11 generally, Dkt. 52, Objections at 6). Instead, petitioner objects without further explanation that the 12 Magistrate Judge erred in finding that the presence of a woman with a Hispanic surname on the 13 empaneled jury was some “proof” that the prosecutor “wasn’t intentionally targeting jurors with 14 Hispanic surnames[.]” (Dkt. 52, Objections at 6) (emphasis omitted). The trial court and the 15 California Court of Appeal applied the same reasoning. (See Dkt. 15-32, Reporter’s Transcript 16 on Appeal (Augment) (“RT”) at 303) (“[T]he Court will note that [the prosecutor] passed a number 17 of times where we had Hispanic jurors sitting in the box. So under the totality of the 18 circumstances, the Court doesn’t believe a prima facie case was made.”); see Johnson, 2016 WL 19 865485, at *9 (“[I]t is relevant that the prosecutor was willing to keep Garcia on the jury.”). 20 The weight of the authority supports petitioner’s argument that accepting a jury that includes 21 members of the challenged group “does not refute the inference that when the prosecutor did 22 make peremptory challenges, he [or she] did so in a purposefully discriminatory manner[.]” 23 Williams v. Runnels, 432 F.3d 1102, 1109 (9th Cir. 2006); compare Sims v. Brown, 425 F.3d 560, 24 575 (9th Cir. 2005) (“[A]t least one Hispanic-surnamed member of the venire was empaneled. 25 This might indicate that the prosecutor’s motive was non-discriminatory.”) and Fernandez v. Roe, 26 286 F.3d 1073, 1079 (9th Cir. 2002) (finding a prima facie case of discrimination against Latino 27 prospective jurors where one Latino juror was seated; the seated juror’s presence was “helpful to 28 the State” but “not dispositive”), with Miller-El v. Dretke, 545 U.S. 231, 250, 125 S.Ct. 2317, 2330 1 (2005) (viewing skeptically the prosecutor’s decision to accept one Black juror and explaining that 2 a prosecutor might do so in an attempt “to obscure the otherwise consistent pattern of opposition 3 to” seating Black jurors); Williams, 432 F.3d at 1109 (“It is true that the prosecutor accepted the 4 jury, including African-American members, several times before he exercised his first peremptory 5 challenge. This, however, does not refute the inference that when the prosecutor did make 6 peremptory challenges, he did so in a purposefully discriminatory manner as evidenced by his use 7 of three of his first four peremptory challenges to dismiss African-American jurors.”); and Shirley 8 v. Yates, 807 F.3d 1090, 1102 (9th Cir. 2015) (“That one black juror was eventually seated does 9 weigh against an inference of discrimination, but only nominally so.”) (internal quotation marks 10 omitted). 11 Even if petitioner could thereby overcome the deference afforded to the state court’s 12 decision under 28 U.S.C. § 2254(d)(1), his claim would still fail. As the Magistrate Judge correctly 13 observed, (see Dkt. 51, R&R at 39-41), a comparison of the struck, Hispanic-surnamed jurors with 14 the accepted, non-Hispanic-surnamed jurors shows that the prosecutor did not engage in 15 purposeful discrimination. See Flowers v. Mississippi, 139 S.Ct. 2228, 2248 (2019) (“Comparing 16 prospective jurors who were struck and not struck can be an important step in determining 17 whether a Batson violation occurred.”); United States v. Mikhel, 889 F.3d 1003, 1031 (9th Cir. 18 2018) (“[W]e cannot say defendants have met their burden of demonstrating race was a 19 ‘substantial motivating factor’ in the government’s peremptory strike,” in part because “the 20 comparative analysis here provides little evidence of discriminatory intent”); United States v. 21 Alvarez-Ulloa, 784 F.3d 558, 567 (9th Cir. 2015) (“[Defendant] does not point to any panelists not 22 struck who . . . would have raised the same concern the government articulated as justification for 23 its strike. . . . Thus, [defendant] cannot satisfy his burden of showing purposeful racial 24 discrimination.”); Briggs v. Grounds, 682 F.3d 1165, 1171, 1171 n. 6 (9th Cir. 2012) (“[T]he state 25 appellate court . . . g[a]ve some specific reasons why the comparative analysis failed to show 26 purposeful discrimination at [Batson’s] step three. . . . [T]he district court evaluated the voir dire 27 transcript, conducted comparative juror analysis where possible, and found that the state-court’s 28 determination was not objectively unreasonable.”). Petitioner’s claim likely would not succeed at 1 the final stage of the Batson analysis. 2 Finally, petitioner asserts that the Magistrate Judge “incorrectly indicate[d] the party at 3 Ingrid’s house took place the ‘night before the shooting.’” (Dkt. 52, Objections at 6). But the 4 purportedly incorrect language petitioner cites comes from the Court of Appeal’s recitation of the 5 facts, which the Magistrate Judge quoted in full. (See Dkt. 51, R&R at 5-16). More to the point, 6 both the Court of Appeal and the Magistrate Judge recognized that Ingrid’s party occurred on the 7 same day as the botched robbery and that Viet was murdered in the early-morning hours after the 8 party. (See id. at 7, 9-14, 49-50). 9 Having reviewed de novo those portions of the Report and Recommendation to which 10 petitioner objects, the court agrees with and accepts the findings and recommendations of the 11 Magistrate Judge. ACCORDINGLY, IT IS ORDERED THAT judgment be entered denying the 12 First Amended Petition (Document No. 49) and dismissing this action with prejudice. 13 Dated this 23rd day of November, 2020. 14 /s/ Fernando M. Olguin 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10039563. Public record. Not legal advice.