Friday, August 14, 2026

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California Supreme Court:

Conviction Stands in Murder-for-Hire Plot That Led to Gruesome Death of Elderly Couple

Opinion Says Justification for Challenged Peremptory Strike Is Not Required Where Judge Found No Prima Facie Case of Bias After Hearing Reasons as to Other Panelists, Drawing Dissent

By a MetNews Staff Writer

A divided California Supreme Court yesterday upheld the judgment of death and conviction of a man accused of hiring a friend to kill an elderly couple while they slept because he wanted to gain control of the husband’s aerospace hardware business, rejecting the assertion that the prosecutor violated the state and federal Constitutions by exercising peremptory challenges against Black potential jurors.

At issue is the three-step procedure that governs so-called Batson/Wheeler challenges to peremptory strikes. Under the scheme, a defendant objecting to the dismissal of a juror must make a prima facie case of discrimination, and then the burden shifts to the prosecutor to provide a racially neutral reason; after the first two steps, a judge must determine whether the offered justification is credible and if racial bias underpinned the prosecutor’s decision.

The majority opinion cited a “wrinkle,” noting that courts are to imply a prima facie finding of discrimination and proceed directly to the third step if the judge listens to explanations for the strikes. In the case before the court, the prosecutor launched into justifications for three of the four challenges, but neglected to provide reasons for the fourth strike, before the trial court ruled that no prima facie case had been made.

Yesterday’s decision, authored by Justice Leondra R. Kruger, declares that “[u]nder the circumstances, we review the court’s denial of [a defendant’s] Batson/Wheeler motion…as a first-stage denial” and found that no prima facie case had been made, highlighting that peremptory strikes must be considered “in context.”

She pointed out that “Black jurors were the most represented racial group on the jury” and “two other Black jurors” were next in line at the time the prosecutor exercised the strikes at issue.

Justices Corrigan, Groban, and Presiding Justice Laurie M. Earl of the Third District Court of Appeal, sitting by assignment, joined in majority opinion.

Dissenting, Justice Kelli Evans, joined by Justice Goodwin H. Liu, called for a reversal of the judgment, saying:

“Rather than being compelled by our precedent, the majority’s creation of a new exception for a rule intended to be ‘clear, predictable, and easy to apply’…seems to be driven by the absence of any justification under which we could uphold the trial court’s ruling at stage three with respect to a juror for whom no reason was ever provided.”

She added:

“Perhaps such an explanation exists. But…such an explanation must be provided and ruled upon for the strike to be upheld. Since this was never done for Prospective Juror No. 206, and because a limited remand after nearly two decades is infeasible, affirming the trial court’s ruling in this case is unwarranted.”

Appealing the judgment was Theodore Shove III, who was convicted of two counts of first-degree murder relating to the deaths of Hubert and Elizabeth Souther, who were 79 and 81 years old when they were found bludgeoned to death in their beds in 2001.

Prosecutors proceeded on the theory that Shove had hired his friend, Lewis Hardin, to kill them based on forensic evidence tying the latter to the scene and proof of conversations between the two men leading up to the fatal incident.

Peremptory Challenges

During jury selection, the defendant’s counsel made a Batson/Wheeler motion challenging the prosecutor’s use of peremptory strikes to dismiss four Black potential panelists. The prosecutor began reciting each of the eight dismissals requested at that point, citing that “[t]he first person we dismissed,” a man identified as “Juror Number 206,” “was a Black male.”

She then went on to give reasons for the remaining challenges of Black panelists but never circled back to provide a justification for why she exercised the strike on Juror Number 206. Then-Los Angeles Superior Court Judge Kathleen A. Kennedy (now retired) declared:

“I didn’t find a prima facie case, and I am not finding a prima facie case. However, I did allow the prosecution to state the reasons for the exercise of the challenges. And I do believe that the reasons that have been indicated for the African/American jurors that have been excused are race neutral reasons….”

The defendant was sentenced to death on March 13, 2008 after a jury found him guilty the previous October.

Kruger wrote:

“Although Shove and the victims are White, which might ‘lessen[] concerns that the prosecutor had an improper motive for excluding’ Black prospective jurors in his case…, Shove observes that the jury was also being selected for Hardin, who is Black. Although the identity of the victims and the defendants certainly weighs in the analysis, we conclude that the totality of the circumstances supports the trial court’s conclusion that no prima facie case of discrimination was established.”

Five Challenges

Recognizing that the “prosecution did exercise five of its first eight challenges against Black prospective jurors,” she remarked:

“The jury ultimately included five Black jurors, four Asian jurors, two Hispanic jurors, and one White juror. Of the six alternate jurors, three were Black, two were White, and one was Asian. Thus, at the time of the challenged strikes, there were at least eight other Black prospective jurors in the courtroom who were ultimately seated as jurors or alternate jurors.”

She was unpersuaded by the defendant’s assertion that the fact that the prosecutor failed to address the reasons for the exercise of the peremptory challenge “provides strong support that the strike was based on race,” commenting:

“[T]he prosecutor here did not ‘decline[]’ or ‘refus[e]’ a judge’s request to justify her challenges…, nor did she claim to have no memory of her reasons….Rather,…the court generally requested a response to the Batson/Wheeler motion, and the prosecutor recounted the challenges, beginning with Prospective Juror No. 206; as she continued, she then began volunteering reasons for striking the other jurors. The defense raised no concerns about the omission at the time. Under the circumstances, the prosecutor’s omission does not support an inference of bias.”

After rejecting the defendant’s other assertions of prejudicial error, the court affirmed the judgment.

Evan’s View

Evans argued:

“[T]he prosecutor here never provided any justification for her exclusion of Prospective Juror No. 206. The majority circumvents this inadequacy in the record by reviewing Prospective Juror No. 206 at the prima facie stage. But the prosecutor’s failure to explain why she excluded this prospective juror does not provide a reason to create a new exception to our practice of implying a prima facie finding when the prosecutor’s justifications precede the trial court’s ruling of no prima facie case.”

The jurist continued:

“To be sure, the trial court’s ruling on a prima facie case would not have been affected by justifications provided for Prospective Juror No. 206, since none were provided. However, since all jurors were considered and ruled upon together, it is impossible to know whether the justifications that were provided improperly influenced the trial court’s prima facie finding. Indeed, an improper influence appears highly likely. The trial court undeniably ‘listen[ed] to’ the prosecutor’s justifications prior to making a finding of no prima facie case.”

She added:

“Moreover, in the very same sentence, [the court] also concluded that all four of the reasons were ‘race-neutral’ and, at least in the majority’s view, genuine. It is difficult to imagine that the trial court’s finding that all jurors for whom justifications were given had been validly stricken would not influence its assessment of the overall pattern of strikes here.”

The case is People v. Shove, 2026 S.O.S. 2499.