The Supreme Court today barely denied review in In re Banks, with Justices Goodwin Liu, Leondra Kruger, and Kelli Evans voting to grant and send the case to the Court of Appeal for issuance of an order to show cause on a pro per’s habeas corpus petition seeking relief under the California Racial Justice Act (here and here). Additionally, Justice Liu issued a separate statement, which Justice Evans joined but Justice Kruger did not.
Justice Liu’s statement relates that the petitioner Banks, “who is Black and was 25 years old when he committed the underlying offense, alleges he was disparately charged with felony-murder special circumstances and sentenced to life without the possibility of parole (LWOP) due to his race, ethnicity, or national origin in violation of the [RJA]. In support of his habeas corpus petition, Banks presented uncontroverted statewide data showing significant racial disparities in sentencing Black defendants to LWOP, along with data showing even greater disparities in sentencing Black youth to LWOP.”
Banks’s petition, which the Fifth District summarily denied, seeks discovery and appointment of counsel under the RJA. The dissenting statement says “Banks has established sufficient justification” for that relief.
The Banks case is similar to In re Mendoza, where Justice Liu (also joined by Justice Evans) last month filed a dissenting statement from the denial of review in an RJA counsel/discovery habeas matter. (See here.) Today’s dissent mentions Mendoza. As in Mendoza, Liu writes in Banks that “denying Banks and similar petitioners access to discovery puts them in a catch-22: Their petitions are deemed inadequate for lack of the very data they seek counsel and discovery under the RJA to obtain.”
Also like Mendoza, the court today says the denial of review is “without prejudice to any relief to which petitioner might be entitled after this court decides In re Montgomery.” The court last month agreed to hear Montgomery (see here), with the issue as summarized by court staff (see here), “Must a petitioner allege a prima facie case for relief under the Racial Justice Act (Pen. Code, § 745; RJA) before the trial court can consider a discovery request for disclosure of evidence under the RJA (id., subd. (d))?”
Discussing the Mendoza order, we said that, under a nearly 10-year-old policy change, we would have expected Mendoza to be a grant-and-hold for Montgomery instead of a without-prejudice denial. The same is true for the Banks disposition.
One minor difference between Banks and Mendoza is that the dissenters in Banks want the matter transferred to the Court of Appeal for that court to issue an order to show cause, while the Mendoza dissenters wanted the Supreme Court itself to issue the OSC. The cause of the discrepancy might be Justices Liu and Evans wanting to be on the same page as Justice Kruger, who dissents in Banks, but didn’t in Mendoza.
