from the Superior Court in Pinal County The Honorable Dwight
P. Callahan, Judge Pro Tempore No. CR201402545
of the Court of Appeals, Division Two 242 Ariz. 518 (App.
Brnovich, Arizona Attorney General, Dominic E. Draye,
Solicitor General, Joseph T. Maziarz, Chief Counsel, Phoenix,
Amy Pignatella Cain (argued), Assistant Attorney General,
Criminal Appeals Section, Tucson, Attorneys for State of
F. Gallego (argued), Gallego Law Firm, P.C., Tucson, Attorney
for Francisco Miguel Urrea
Kalman, Brian Thredgold, Arizona Attorneys for Criminal
Justice, Phoenix; Jared G. Keenan (argued), Kathleen E.
Brody, American Civil Liberties Union Foundation of Arizona,
Phoenix, Attorneys for Amici Curiae
JUSTICE BOLICK authored the opinion of the Court, in which
CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and
JUSTICES PELANDER, TIMMER, GOULD, and LOPEZ joined.
During a trial on narcotics charges, the prosecutor violated
Defendant's equal protection rights by using peremptory
strikes to remove Hispanic jurors from the venire in
violation of Batson v. Kentucky, 476 U.S. 79 (1986).
We hold that the trial court's remedy reinstating the
wrongfully excluded jurors to the venire was proper.
AND PROCEDURAL BACKGROUND
Defendant Francisco Miguel Urrea was charged with and found
guilty of transportation of a narcotic drug for sale. During
jury selection, Urrea raised a Batson challenge,
contending that five of the prosecutor's six peremptory
strikes targeted potential jurors with "Hispanic ethnic
The trial court conducted a Batson analysis and
concluded that the prosecutor could not establish a
race-neutral justification for striking three of the
challenged jurors. Although it found a Batson
violation, the court found no misconduct on the
prosecutor's part. The court ruled that the prosecutor
forfeited those three strikes and restored the three jurors
to the venire. Urrea moved for a mistrial and dismissal of
the entire venire. The court denied the motion and empaneled
the first nine jurors who had not been struck, including two
of the reinstated jurors.
A divided panel of the court of appeals affirmed. State
v. Urrea, 242 Ariz. 518 (App. 2017). The court
held that reinstatement of the wrongfully excluded jurors to
the venire was permissible under Batson and proper
under the circumstances. Id. at 525-26 ¶¶
21-25. The dissenting judge stated that restoring improperly
challenged jurors to the venire was permissible but an
"incomplete" remedy, id. at 529 ¶ 39
(Miller, J., dissenting), and expressed that the court should
have restored defense counsel's peremptory challenges or
started the jury selection process anew, id. at 530
We granted review because the appropriate remedies for a
Batson violation present an issue of statewide
concern and first impression in Arizona. We have jurisdiction
under article 6, section ...