People v. Jimenez

Filed 10/6/26; on transfer CERTIFIED FOR PARTIAL PUBLICATION ∗ IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, H049356 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 216443) v. MARCOS ANTONIO JIMENEZ et al., Defendants and Appellants. Under the California Racial Justice Act of 2020 (RJA), “[t]he state shall not seek or obtain a criminal conviction or … sentence on the basis of race, ethnicity, or national origin,” and a defendant who proves one of four enumerated means of violating this prohibition is entitled to a remedy, including but not limited to dismissal of a special circumstance. (Pen. Code, § 745, subds. (a) & (e)(1)(C).) 1 Each of the four prohibited means targets the operation of racial bias—including implicit bias—in the arc of a criminal case. (§ 745(a)(1)–(4).) At issue in the published portion of this opinion is whether defendant Marcos Antonio Jimenez has made a prima facie showing that the prosecution “more frequently sought or obtained convictions for more serious Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is ∗ certified for partial publication with the exception of parts I.B and II.B through and including II.K. Unspecified statutory references are to the Penal Code. For brevity, we will omit 1 “subdivision” or “subd.” from future references to any subdivision of section 745. offenses”—here, first degree special-circumstance murder—“against people who share [his] race, ethnicity, or national origin” than against members of another group “who have engaged in similar conduct and are similarly situated.” (§ 745(a)(3) & (h)(1)). 2 Also at issue is whether resolution of that question should have been deferred by a continuance in the trial court or should now be deferred by our issuance of a stay and limited remand. Jimenez argues that he established the threshold substantial likelihood of disparate charging of a special circumstance. 3 He bases this argument first on the overrepresentation of Latinx 4 defendants—relative to their share of the general population within Santa Clara County, not their share of the population who “engaged in similar conduct and are similarly situated” (§ 745(a)(3) & (h)(1))—in the population of those serving sentences of life without the possibility of parole (LWOP) in the county. And he next supplements his argument with an undefined “sample” of White murder 2 Appellant and codefendant Marco Antonio Ruiz did not join Jimenez’s RJA claim in the trial court or on appeal, but the RJA would permit him to bring a postconviction RJA claim. 3 Because Jimenez on appeal focuses on the decisionmaking of the prosecutor, not of the trier of fact, we focus our review accordingly. The RJA, however, can also be violated if a defendant was “convicted” or a more serious offense than defendants of other races, ethnicities, or national origins who have engaged in similar conduct and the prosecutor more frequently “obtained convictions” for more serious offenses against people who share a defendant’s race, ethnicity, or national origin. (See § 745(a)(3).) But as we will explain, the limitations of Jimenez’s data stop short of a prima facie showing of racially disparate frequency, whether in the prosecutor’s charging decisions or in the verdicts returned by a fact finder. 4 Jimenez identified as Latinx in the trial court; on appeal he occasionally uses the term “Hispanic,” and the data that he cites employ the designation “Hispanic/Mexican.” To the extent that he treats the terms as interchangeable, his claims do not require us to interrogate the differences among them. When referencing the reported data, we use the nomenclature of the dataset. We otherwise use “Latinx” to comport with Jimenez’s self-identification. 2 defendants potentially susceptible to the charging of a special circumstance who were nonetheless sentenced to life with the possibility of parole. But his sampling and population figures do not show a substantial likelihood that defendants of his race, ethnicity, or national origin were more frequently subjected to a special circumstance than those who have engaged in similar conduct but are from a different group. Without comparable data—for both Latinx and White murder defendants—showing how many were charged with a special circumstance and how many were not, we can draw no rational inferences about the relative frequency with which the prosecution seeks or obtains a special circumstance verdict. His argument and evidence thus miss the comparisons at the crux of section 745(a)(3). Jimenez alternatively argues that the trial court abused its discretion in denying his request for a continuance—made for the first time after the denial without prejudice of his RJA claim and after the sentencing hearing was already in progress. But Jimenez neither showed good cause for his untimely request to continue the proceedings nor explained why he could not have made that request before the trial court ruled on the merits of his RJA motion. Nor can we justify granting his latest motion—a motion likewise made after our original disposition of both defendants’ appeals and after the California Supreme Court’s grant of review and transfer for reconsideration in light of intervening amendments to the RJA—to now stay the appeal and remand the matter to the trial court for further litigation of the claim. Like the trial court, we will not impede Jimenez’s pursuit of his plausible claim for relief under the RJA’s provisions for postjudgment writ of habeas corpus. (§ 1473, subd. (e).) But he has identified no benefit to be gained by delaying our resolution of the threshold legal questions at the heart of his claim. In the remainder of the opinion, not certified for publication, we address each defendant’s claims of trial and sentencing error. We again affirm. 3  I. BACKGROUND A. The Indictment In November 2017, the Santa Clara County criminal grand jury indicted both Jimenez and Ruiz on charges that they murdered Humberto Salas (§ 187; count 1), attempted to murder Salas’s companion, A.P. (§§ 664, 187; count 2), and conspired to commit robbery (§§ 211, 212.5, subd. (c); count 3). The grand jury alleged as to count 1 the special circumstance that the murder of Salas was committed during a robbery (§ 190.2, subd. (a)(17)). As to both counts 1 and 2, it was alleged that Jimenez personally and intentionally discharged the firearm that caused Salas’s death (§ 12022.53, subd. (d)) and that Ruiz personally discharged a firearm (§ 12022.53, subd. (c)). B. The Trial The prosecution’s case rested largely on testimony by S.C., Jimenez’s girlfriend and admitted coconspirator. 5 Both Jimenez and Ruiz disputed participation or even presence at the scene: The defense theory was that S.C. falsely implicated them to satisfy the prosecutor so that S.C. could reunite with her child and avoid a life in prison. 1. The Robbery and Murder In October 2016, S.C. was with Ruiz and Jimenez when Ruiz said that he needed to make money. Ruiz suggested finding someone to rob, and he and Jimenez came across A.P.’s social media account on S.C.’s phone. S.C. knew that A.P., a former classmate, sold marijuana, and she told Jimenez that she thought A.P. could be an easy target. Ruiz agreed that A.P. “seemed like he was a bitch.” The trio planned for S.C. to meet A.P. at Dove Hill Park on the pretext of buying marijuana and get in A.P.’s car; Ruiz, armed with a handgun, would then descend on the 5 The prosecution secured S.C.’s testimony by a plea bargain in which she pleaded guilty to voluntary manslaughter, accessory after the fact, and conspiracy to commit robbery. 4 car and rob A.P., with Jimenez on “standby” with his shotgun. Using S.C.’s phone, Ruiz sent A.P. messages to arrange the meeting. Preparing for the robbery at the home of S.C.’s mother, Ruiz and Jimenez donned black sweatshirts, gloves, and masks. The group drove to the park in Jimenez’s car, at one point going toward the side of the park that was next to a school. Ruiz and Jimenez entered the park on foot to wait for A.P. A.P. drove to Dove Hill Park with his friend Humberto Salas, texting S.C. at 8:36 p.m. to say he had arrived. On receiving A.P.’s message, S.C. got in the back seat of his car. Salas was in the front passenger seat; he and A.P. planned to hang out together after A.P. concluded his business with S.C. When A.P. passed S.C. a jar of marijuana, Ruiz and Jimenez ran up to the driver’s side and the rear passenger side of the car, respectively. Ruiz pistol-whipped A.P. several times and yelled at S.C. to surrender her phone. Jimenez, meanwhile, leaned into the car’s rear passenger seat, close enough to grab S.C.’s wrist. Jimenez had his shotgun pointed toward the front passenger seat, where Salas was seated, when A.P. started driving away. S.C., still inside the car, heard three or four gunshots. A.P., seeing that Salas had been shot, pulled over near the freeway, and S.C. fled. A.P. called 911 and proceeded to a nearby hospital minutes later, but Salas died of his injuries. After leaving A.P. and Salas, S.C. met Jimenez and Ruiz at her mother’s house. S.C. told Ruiz and Jimenez that Salas had been shot and asked why they had not warned her they planned to shoot at the car. Jimenez said that he had fired his shotgun accidentally; Ruiz responded that he had told Jimenez he planned to shoot. Jimenez told S.C. he threw the shotgun shells into the ocean near San Francisco. Phone records showed that, after midnight the night of the shooting, calls from Jimenez’s phone activated from a cell tower in San Francisco. 5  2. Forensic Evidence and the Police Investigation Salas was killed by a shotgun wound to his back, fired from a range of roughly three to six feet, and there was blood on the front passenger seat of A.P.’s car. The shotgun blast struck nothing else in the car. The car had been hit by bullets on the driver’s side: The rear window was smashed on that side, and there were bullet strikes on the rear quarter panel. Several bullet fragments were recovered from the car. At the scene, officers found no shotgun shells or shotgun ammunition but recovered projectiles and four .40-caliber casings. In an apartment where Ruiz had sometimes stayed before his arrest, officers found .40-caliber ammunition bearing the same headstamp as the casings found at the park. The four .40-caliber casings found at the scene were found to have been fired from the same gun. A black hoodie and three gloves—one pair and one single glove—were found stashed in a bush near the park. Gunshot residue was detected on the recovered single glove, the left glove of the recovered pair, and on the black hoodie. Blood found inside the single glove was a mixture from two contributors, and Ruiz’s DNA was consistent with the major contributor’s. Jimenez could not be excluded as a contributor to DNA found on the pair of gloves. A stain on the black hoodie found in the bush had a mixture of DNA consistent with S.C. as a major contributor and Ruiz, Jimenez, Salas, and A.P. as possible minor contributors. Records from Pinger, an Internet-based messaging application, showed that an account associated with Ruiz’s phone number and username “marco.ruiz1997” sent and received 10 messages between 7:55 p.m. and 8:23 p.m. the day of the shooting. The number also received a text message at around 9:16 p.m., after the shooting. While alone in a police interrogation room after his apprehension, Ruiz was being recorded. An officer monitoring the room’s surveillance video heard Ruiz saying “ ‘snitch bitch,’ ” “ ‘murder weapon,’ ” and “ ‘glove,’ ” among less intelligible statements. 6 C. The Verdict In January 2020, the jury found Ruiz guilty as charged, returning true findings on the robbery-murder special circumstance and the two firearm allegations. The jury found Jimenez guilty as to each count and found true the robbery-murder special circumstance but did not find true the firearm enhancements alleged as to the murder and attempted murder. D. Post-Trial Motions and Sentencing In July 2021, the trial court sentenced Ruiz to a term of life without the possibility of parole (LWOP) for Salas’s murder, consecutive to a determinate term of 28 years— seven years for the attempted murder of A.P., 20 years for the associated firearm enhancement, and one year for the conspiracy to commit robbery. In the interests of justice under section 1385, subdivision (b)(1), the trial court struck the punishment for the firearm enhancement attached to the murder conviction. The next month, the trial court denied Jimenez’s motion to dismiss the special- circumstance allegation under the RJA, finding that Jimenez failed to make a prima facie showing of discriminatory charging of the special circumstance. The court also rejected Jimenez’s claim that a LWOP sentence would constitute cruel or unusual punishment. Although the court opined that Jimenez “should be given an opportunity to see a parole board” in the future, the court declined to address whether he was now entitled to a youthful offender parole hearing: Jimenez had yet to serve the minimum time that section 3051 requires before consideration for such a hearing, and “many things can change, including the law,” which presently excluded him from eligibility. The court then sentenced Jimenez to LWOP for Salas’s murder, a concurrent term of seven years for A.P.’s attempted murder, and three years for the conspiracy. 7  II. DISCUSSION A. Jimenez’s RJA Claim We review de novo whether Jimenez made a prima facie showing of an RJA violation under section 745(a)(3). (People v. Howard (2024) 104 Cal.App.5th 625, 650.) As we reasoned in our now-vacated original opinion, Jimenez’s statistical and anecdotal arguments failed to compare those “who have engaged in similar conduct and are similarly situated” or to show whether the prosecution “more frequently sought or obtained convictions for more serious offenses.” (§ 745(a)(3).) On his alternative claim that the sentencing court erred in denying his late motion to continue, we found no abuse of discretion. The Legislature then amended the RJA by enacting Assembly Bill No. 1071 (2025–2026 Reg. Sess.) (Assembly Bill No. 1071). (Stats. 2025, ch. 721, eff. Jan. 1, 2026.) The amendment did not alter the terms of section 745(a)’s four defined types of violations or section 745(h)(1)’s requirement that the frequency comparison be drawn as between “individuals who have engaged in similar conduct and are similarly situated.” (Compare Stats. 2025, ch. 721, § 2 with Stats. 2020, ch. 317, § 3.) The amendment thus did not remove from section 745(a)(3) the required like-to-like comparisons—from which the frequency of the prosecution’s charging decisions could be inferred—that were absent from Jimenez’s prosecution of his claim. But the Legislature decried the RJA’s “silent evisceration” by courts that have “misconstrue[d] the statute to apply procedural barriers or otherwise impose impediments to relief.” (Stats. 2025, ch. 721, § 1(a), citing In re Mendoza, S287251, Supreme Ct. Mins., Dec. 18, 2024 (dis. stmt. of Liu, J.).) The California Supreme Court granted Jimenez’s petition for review of this court’s decision, denying Ruiz’s, and transferred the matter to this court with directions “to … reconsider the cause in light of the impact, if any, of Assembly Bill No. 1071.” We understand the Legislature’s uncodified critique in Assembly Bill No. 1071 to underscore its commitment to countering racial discrimination in the criminal legal 8 system and to remonstrate with a judicial branch that has understood the RJA more narrowly than the Legislature intended. (Stats. 2025, ch. 721, § 1(c) [observing that “[c]ourts … have at times failed to find a prima facie showing or a violation despite evidence of disparate charging and sentencing”].) As before, however, section 745(a)(3) continues to require Jimenez to ultimately show the relative frequency with which the prosecution seeks or obtains convictions for the more serious offense (here, special- circumstance murder) rather than the less serious alternative (murder without a special circumstance) among people who are similarly situated because they have engaged in similar conduct and that the frequency is higher for people of his race, ethnicity, or national origin than for others; to meet his prima facie burden, he had to show a substantial likelihood of a significant difference in that frequency. (See § 745(h)(1).) The statistical analysis on which Jimenez relied in the trial court did not make this showing but instead built on two errors of both logic and statutory interpretation: (1) conflating the general population with the population that has “engaged in similar conduct and [is] similarly situated” (§ 745(h)(1)) and (2) conflating the occurrences of a more serious charge (or of the less serious alternative) with the frequency of that charging decision. So with utmost and continuing respect for the plausibility of Jimenez’s legal theory, we again conclude that the trial court properly denied without prejudice his RJA motion to dismiss the special circumstance. And because Jimenez did not explain the untimeliness of his request to continue the sentencing hearing already in progress, we again conclude that the trial court did not abuse its discretion in denying the post-ruling request. Finally, as Jimenez likewise has not shown how either justice or judicial efficiency would be served by delaying resolution of the disputed issues of law central to both his appeal and the anticipated renewal of his claim in the trial court, we deny his post-transfer motion for a stay and limited remand. 9  1. Section 745(a)(3) In McCleskey v. Kemp (1987) 481 U.S. 279 (McCleskey), the United States Supreme Court held that a “discrepancy that appears to correlate with race” in death penalty cases raised no federal constitutional concern without proof of discriminatory purpose and accepted “[a]pparent disparities in sentencing” as “an inevitable part of our criminal justice system.” (Id. at p. 312.) Expressly rejecting McCleskey’s tolerance of such racial disparities, the Legislature in enacting the RJA sought “to actively work to eradicate them.” (Stats. 2020, ch. 317, § 2(i), (f).) The RJA thus targets the effects of implicit bias (Stats. 2020, ch. 317, § 2(i)) in criminal convictions and sentences and does not condition relief on proof of intentional discrimination (§ 745(c)(2)). Subdivisions (a)(3) and (4) of section 745 represent the Legislature’s most direct counterweight to McCleskey. At issue here, section 745(a)(3) entitles a defendant to relief under the RJA if two requirements are met: First, “[t]he defendant 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” (disparate treatment at the individual level); and second, “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” (more frequent disparate treatment at the group level). 6 Although the Legislature did not reiterate the “similar conduct … similarly situated” language in section 745(a)(3)’s second provision, it included that limitation by defining “more frequently sought or obtained” in section 745(h)(1). 6 Jimenez also relies on section 745(a)(4)(A), which targets disparities in discretionary sentencing for a given charge, correlating with the defendant’s race, ethnicity, or national origin. But because the charging and adjudication of the special circumstance left the trial court no discretion to impose a sentence less than LWOP (see § 190.2, subd. (a)), his RJA claim under subdivision (a)(4)(A) is subsumed within and depends upon his claim under subdivision (a)(3). 10  Convictions are “ ‘[m]ore frequently sought or obtained’ ” if, among other factors, “the totality of the evidence demonstrates a significant difference in seeking or obtaining convictions … comparing individuals who have engaged in similar conduct and are similarly situated, and the prosecution cannot establish race-neutral reasons for the disparity.” (§ 745(h)(1).) Individuals are “ ‘[s]imilarly situated’ ” if “factors that are relevant in charging and sentencing are similar and do not require that all individuals in the comparison group are identical.” (§ 745(h)(6).) And “similar conduct” refers to the behavior of a person on a particular occasion, or the underlying facts of the crimes. (Mosby v. Superior Court (2024) 99 Cal.App.5th 106, 129 (Mosby).) As a threshold matter, although the special circumstance is a sentencing provision, we do not read “more serious offenses” potentially actionable under section 745(a)(3) as limited to base offenses without consideration of enhancements or special circumstances. Instead, we examine the statutory language “ ‘ “ ‘ “in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment.” ’ ” ’ ” (People v. Braden (2023) 14 Cal.5th 791, 804.) The Legislature in authorizing dismissal of enhancements as a potential remedy for an RJA violation (§ 745(e)(1)(C)) plainly understood that enhancements elevate the severity of an underlying base offense. And it has long been recognized that any fact which increases the maximum or mandatory minimum penalty has a “clear ‘elemental’ nature” vis-à-vis the underlying offense to which it applies. (Apprendi v. New Jersey (2000) 530 U.S. 466, 494 [treating sentencing factors that increase the statutory maximum penalty for an offense as elements that must be pleaded and proven to a jury]; see also Alleyne v. United States (2013) 570 U.S. 99 [extending Apprendi to facts triggering mandatory minimum sentences]; Ring v. Arizona (2002) 536 U.S. 584, 589 [overruling prior precedent to hold that death-qualifying aggravating factor is an element of the offense of capital murder].) The special circumstance thus elevates Jimenez’s first 11 degree murder conviction to the “more serious offense” of special-circumstance murder. (§ 745(a)(3).) Applying the plain terms of sections 745(a)(3) and 745(h)(1), then, Jimenez’s claim for relief based on disparate charging will ultimately require a showing that (1) Jimenez was charged with special-circumstance murder and subject to mandatory LWOP when “defendants of other races, ethnicities, or national origins” who engaged in similar conduct and were similarly situated were not charged or adjudicated with a special circumstance (§ 745(a)(3)), and (2) the frequency with which the People sought or obtained a special circumstance against eligible Latinx murder defendants significantly exceeds the corresponding frequency among eligible murder defendants of another non- Latinx group (§ 745(a)(3) & (h)(1)). 7 To be entitled to an evidentiary hearing on his claim, he need only “make[] a prima facie showing of a violation.” (§ 745(c).) At the prima facie stage, “the court does not ask if the defendant proffered facts sufficient to demonstrate actual entitlement to relief.” (Finley v. Superior Court (2023) 95 Cal.App.5th 12, 22 (Finley).) A “ ‘[p]rima facie showing’ ” requires only the production of “facts that, if true, establish that there is a substantial likelihood that a violation of subdivision (a) [of section 745] occurred.” (§ 745(h)(2).) “[A] ‘substantial likelihood’ requires more than a mere possibility, but less than a standard of more likely than not.” (§ 745(h)(2).) In Assembly Bill No. 1071, the Legislature “reassert[ed] the low threshold required to establish a prima facie showing under paragraphs (1) through (4) of” section 745. (Stats. 2025, ch. 721, § 1(c).) It “again emphasize[d] its rejection of [McCleskey]” and made explicit “its intent that statistical evidence be sufficient for 7 Because Jimenez takes White defendants as his point of comparison for both elements of section 745(a)(3), we need not decide whether the Legislature intended section 745(a)(3)’s control group of “defendants of other races, ethnicities, or national origins” to permit aggregation of all non-Latinx defendants or requires only a comparison with a single non-Latinx race, ethnicity or national origin. 12 finding a prima facie case and may suffice to show an RJA violation.” (Stats. 2025, ch. 721, § 1(c).) 2. Jimenez’s Showing Jimenez predicated his RJA motion on a report prepared by a recent J.D/Ph.D. graduate and an attorney titled “Quick Facts: LWOP vs. LIFE [S]entences in Santa Clara County, California.” Based on data from the California Department of Corrections and Rehabilitation, the report (1) compared the racial demographics of 18- to 26-year-olds sentenced to LWOP in Santa Clara County and statewide with the racial demographics of the county and state general populations, and (2) examined patterns of charges common to those serving life sentences and those serving LWOP sentences, providing an undefined sample of White defendants who fit these charging patterns and received life sentences. At the deliberately low prima facie threshold, we will assume the authors’ undefined sample of White defendants who received life sentences for murder despite a concurrent conviction for a felony listed in section 190.2, subdivision (a)(17) had “engaged in similar conduct” as Jimenez but were spared a special-circumstance allegation by prosecutorial discretion. So we assume that Jimenez has shown a substantial likelihood that he was charged with a more serious offense than some similarly situated White defendants, the first of section 745(a)(3)’s two criteria. But neither the authors nor Jimenez meaningfully address section 745(a)(3)’s second criterion—whether “the prosecution more frequently sought or obtained convictions for more serious offenses against people who share [Jimenez’s] race, ethnicity, or national origin” than against similarly situated people of “other races, ethnicities, or national origins.” (See § 745(a)(3), italics added.) Instead, they rely on the demographics of the general population, not the similarly situated population of defendants charged with or convicted of murder; they also sample discrete occurrences of less serious outcomes for White murder defendants, without examining either a complementary sample of the more serious alternative occurring among White murder 13 defendants or corresponding samples for Latinx defendants. 8 Absent these additional comparisons, there is no basis to infer the relative frequency of the prosecutor’s election to charge the special circumstance across racial groups. The Legislature has instructed that neither “statistical evidence” nor “[s]tatistical significance” is required to show greater frequency in seeking or obtaining the more serious offense. (§ 745(h)(1).) But to make a prima facie showing, Jimenez must still show a substantial likelihood of a significant difference in the frequency of the charging decision across his own and another group of different race, ethnicity, or national origin. (Ibid.) So having based his RJA claim on the report’s undefined sample of White murder defendants serving life with the possibility of parole, Jimenez would need to complete the logical loop of that theory by similarly sampling White defendants serving LWOP and examining the corresponding samples of Latinx murder defendants—sentenced both with and without the possibility of parole. He has not done so. a. General Population versus Similarly Situated Defendants The report discloses that 2,867 persons currently serving LWOP sentences in California were between 18 and 26 years old at the time of their offenses. Of these 2,867, more than one-third (1,073) are “Hispanic/Mexican.” Only about one-seventh of these (or 405) are “Caucasian.” 9 Jimenez also observes that young adult Latinx offenders are 8 One co-author of the report has submitted a declaration with additional Santa Clara County charging data and anecdotal evidence in support of Jimenez’s posttransfer motion for stay and limited remand. That evidence not having been before the trial court, we cannot consider it when reviewing on direct appeal the merits of Jimenez’s claim of RJA error. (People v. Avila (2004) 117 Cal.App.4th 771, 780, fn. 4 [“review[ing] the correctness of the trial court’s ruling at the time it was made and not by reference to evidence produced at a later date”].) We may consider the declaration only as to the propriety of the requested stay, post. 9 The raw numbers and corresponding percentages reflect that the authors of the report took the racial and ethnic classifications used in both the CDCR and the county data to be distinct and mutually exclusive, such that “Hispanic” as used in the analysis 14 “severely overrepresented” among offenders sentenced to LWOP in Santa Clara County, relative to the racial demographics of the county at large: These data reflect that as a whole, defendants identified as Hispanic/Mexican or Black are grossly overrepresented in the LWOP population compared to their share of the county’s general population. (See, e.g., Hardin, supra, 15 Cal.5th 834, 901 (dis. opn. of Evans, J.).) But essential to Jimenez’s claim of prosecutorial bias under section 745(a)(3) is a prima facie showing that this overrepresentation of Latinx defendants stems from disparities in charging a special circumstance that, once proven in conjunction with the underlying murder, mandates LWOP as the minimum sentence rather than an indeterminate life sentence with the possibility of parole. Prosecutors cannot allege a section 190.2 special circumstance except when charging the life-eligible crime of murder, and a true finding on a special circumstance cannot be reached unless the murder is found to be of the first degree. Santa Clara County residents who have no sentencing exposure at all cannot be considered to have “engaged in similar conduct” or be “similarly situated” to Jimenez by presenting similar “factors … relevant in charging and has no overlap with “White” (or “Caucasian”),“Black,” or “Other.” Jimenez makes no contrary claim. 15 sentencing” first degree special-circumstance murder. 10 (§ 745(h)(1) & (6).) So for the narrow inquiry presented by Jimenez’s challenge to his LWOP sentence, the “similarly situated” population (§ 745(h)(1)) is not the general population, most of whom will have no criminal legal exposure. The racial demographics of the county at large may supply a relevant benchmark for whether an RJA violation “could or might have” occurred, warranting further investigation or discovery. (See Young v. Superior Court (2022) 79 Cal.App.5th 138, 159 (Young) [articulating RJA discovery standard]; Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 63; McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 243–244.) And overrepresentation relative to share of general population may be highly relevant to a prima facie showing of a different claim of racial bias. (See, e.g., Jackson v. Superior Court (2025) 109 Cal.App.5th 372, 386 [finding prima facie showing of racially biased law enforcement (§ 745(a)(1)) based in part on overrepresentation of Black drivers, relative to share of general population, in the population of drivers subjected to traffic stops and searches].) For members of different racial or ethnic groups to be similarly susceptible to discretionary traffic stops and searches, for example, they presumably need only be drivers. But here, unknown and presumably substantial numbers in the county’s general population have never been suspected of involvement in any crime, let alone charged with murder; their inclusion as “similarly situated” thus invalidates the comparison Jimenez and the report’s authors would have us read into the data they supplied. (Cf. Mosby, supra, 99 Cal.App.5th 106, 115–117 [comparing reported percentage of murder defendants of the defendants’ ethnicity who were charged with a special circumstance with corresponding percentage for murder defendants of another race].) Although the 10 Jimenez does not contend that murder charging patterns (as opposed to special- circumstance charging patterns) themselves reflect bias. 16 authors included comparable county data for 18- to 26-year-olds serving life sentences, here too the authors focus on overrepresentation of Hispanic defendants in this non- LWOP population as compared to the county’s general population, rather than examine how the demographics of this non-LWOP cohort compare with those of the LWOP cohort. 11 And even that comparison would not suffice without a showing that the non- LWOP cohort faced murder charges: To show that members of different racial or ethnic groups were similarly susceptible to a district attorney’s discretionary charging of a special circumstance, they must at a minimum have been subject to a murder charge. b. Raw Numbers versus Frequency The asymmetrical omissions from the data Jimenez supplied likewise prevent us from gauging how frequently the state seeks and obtains a special-circumstance finding and how that frequency varies across racial lines. Jimenez argues that the disparate frequency of special-circumstance prosecution is established by the reported percentage of Hispanic LWOP defendants compared to the percentage of White LWOP defendants. But this argument conflates disparity in the frequency of seeking or obtaining the more serious special-circumstance allegation against Latinx murder defendants with disparity in representation within the LWOP population alone. The former—which Jimenez leaves unexamined—compares the 11 The report is silent as to whether all these non-LWOP defendants had been convicted of murder and, if so, whether they were eligible for a special-circumstance allegation. (See, e.g., §§ 209, subds. (a) & (b)(1) [certain kidnapping offenses punishable by life], 667.61, subd. (c) [“one-strike” sex offenses].) To the extent that the authors and Jimenez consider the combined life and LWOP numbers for 18- to 26-year olds is an acceptable proxy for the total number of people charged with murder and thus eligible for a special circumstance (LWOP eligible), the reported data would tend to undermine Jimenez’s claim. Accepting those premises for argument’s sake, their data appear to suggest that the percentage of Hispanic defendants sentenced to LWOP is in fact smaller than the percentage of LWOP-eligible Hispanic defendants, while the percentage of White defendants sentenced to LWOP is higher than the percentage of LWOP-eligible White defendants. 17 demographics of the LWOP population with the baseline demographics of the broader murder population (as a rough proxy for those potentially subject to pleading and proof of a special circumstance), examining the charging frequency across the relevant racial groups for “a significant difference in seeking or obtaining” the more serious conviction rather than a murder conviction without the special circumstance. (§ 745(h)(1).) The latter—the comparison advanced by Jimenez here—compares only each race’s share of the LWOP population, without disentangling what we have explained is a minimum relevant baseline (the population of defendants charged with murder) and the disputed charging decision or outcome (allegation of a special circumstance) that is the crux of a section 745(a)(3) claim. The Legislature in the RJA expressly repudiated McCleskey’s requirement of “discriminatory purpose.” (Stats. 2020, ch. 317, § 2(f); Stats. 2025, ch. 721, § 1(c); see McCleskey, supra, 481 U.S. at p. 298 [requiring that “racially discriminatory effect” be explained by “racially discriminatory purpose” for equal protection challenge to capital punishment statute].) But this repudiation did nothing to relieve an RJA claimant from showing racially disparate treatment—however unintentional, unconscious, or implicit— in “[t]he state[’s] [decision to] seek or obtain” the challenged judgment. (§ 745(a).) To illustrate: If the prosecution were to seek and obtain a special-circumstance finding against every eligible murder defendant irrespective of race, ethnicity, or national origin, the frequency of discretionary LWOP charging and successful prosecution would be 100 percent across all racial groups. There would be no difference in frequency across groups similarly situated by their conduct, even if the racial composition of the LWOP population diverged significantly from the county’s general population. Those hypothetical circumstances, though alarming, would not suggest the disparate frequency of state action targeted by section 745(a)(3). We do not doubt that the overrepresentation of Latinx young adults among those sentenced to LWOP reflects pervasive structural racism. Nor do we mean to diminish the 18 significance of the RJA by observing that its focus on implicit and explicit bias in the narrower context of criminal investigation, prosecution, adjudication, and sentencing does not extend to broader race-based injustice that predates a defendant’s involvement in the criminal legal system. But fundamental to section 745(a)(3)’s focus on the differential frequency of seeking or obtaining convictions of more serious offenses are (1) the People’s discretion to choose between lesser and greater charges, (2) the fraction of those similarly situated within a given racial group for whom the more serious offense was sought or obtained when a less serious alternative for the same conduct was available, and (3) how that fraction differs for defendants of a different race. Jimenez’s focus on how representation within the LWOP population differs from representation within the general population excludes these essential comparisons. There must be some effort to show the frequency with which those “engaged in similar conduct and … similarly situated”—whose charges could at least in theory implicate a special circumstance—were not subject to that allegation and how that frequency varies across racial lines.