Racial Justice Act Violation requires reversal of death penalty

People v. Bankston (Cal., June 1, 2026, No. S044739) 2026 WL 1530539, at *1

Summary: This appeal is automatic from a death sentence.

The California Supreme Court finds that the penalty phase in this case violated the California Racial Justice Act of 2020, Penal Code section 745, subdivision (a), and requires reversal of the judgment of death.

Racial Justice Act Challenges

While this appeal was pending, the Legislature enacted the California Racial Justice Act, which provides a statutory basis for challenging racial, ethnic, and national origin discrimination in the administration of criminal justice. (Pen. Code, § 745; RJA or Act.) Bankston raises several claims based on provisions of the RJA forbidding the use of “language that, to an objective observer, … implicitly appeals to racial bias.” (Pen. Code, § 745, subds. (a)(2), (h)(4).)

Racial Justice Act background

Penal Code section 745 (section 745), which provides that “[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” (§ 745, subd. (a).) The Legislature’s stated intent in enacting the Racial Justice Act was “to eliminate racial bias from California’s criminal justice system” and “to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.” (Stats. 2020, ch. 317, § 2, subd. (i).)

Bankston’s claims in this case invoke the prohibition in section 745, subdivision (a)(2), which provides that a defendant may establish a violation by proving by a preponderance of the evidence that, “[d]uring the defendant’s trial, in court and during the proceedings, the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror, used racially discriminatory language … or otherwise exhibited [racial] bias or animus towards the defendant …, whether or not purposeful.” The statute defines the term “[r]acially discriminatory language” to mean “language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, racially charged or racially coded language, language that compares the defendant to an animal, or language that references the defendant’s physical appearance, culture, ethnicity, or national origin. Evidence that particular words or images are used exclusively or disproportionately in cases where the defendant is of a specific race, ethnicity, or national origin is relevant to determining whether language is discriminatory.” (Id. subd. (h)(4).) The prohibition on racially discriminatory language “does not apply if the person speaking is relating language used by another that is relevant to the case or if the person speaking is giving a racially neutral and unbiased physical description of the suspect.” (Id. subd. (a)(2).)

Bankston argued that his first guilt phase trial was marred by use of the terms “gang member” and “hardcore gang members,” which Bankston claims were coded appeals to racial bias. (§ 745, subds. (a)(2), (h)(4).) Because this case involved alleged gang-related violence,  the use of the term “gang member” was unavoidable. The use of the descriptor “hardcore” does not alter the analysis.

To the extent the gang experts or the prosecutor referred to Bankston’s gang membership and his “hardcore” dedication to the gang, it was to demonstrate a highly relevant factor unrelated to racial bias, namely, his motive in murdering and attempting to murder perceived gang rivals.

Bankston also contends that during both the first and second guilt trials, the prosecutors made references to Bankston’s poetry that were “racially coded and primed the jurors with the stereotype that African American men are violent and threatening.”

At each trial, the prosecutor argued that the poetry reflected Bankston’s gang dedication and was evidence of his motive in committing the charged murders.

Bankston has failed to show that the prosecution’s reliance on his poetry violated the RJA. (§ 745, subd. (a)(2).)

The prosecution quoted this language, and relied on the photo album writings generally, to demonstrate Bankston’s gang membership and the degree of his dedication to the gang, and thereby to demonstrate his motive in allegedly murdering and attempting to murder perceived gang rivals. The prosecution’s reliance on the poetry for purposes of establishing Bankston’s gang affiliation and gang-related motivations did not reflect a prohibited “explicit[ ] or implicit[ ] appeal[ ] to racial bias.” (§ 745, subd. (h)(4); cf. id. subd. (a)(2) [“relating language used by another that is relevant to the case” does not constitute a violation of the RJA].)

When an expert conveys information about gangs that are organized along racial or ethnic lines, the expert is not necessarily commenting on racial groups in general; testimony about such gangs or groups of gangs is not, without more, racially discriminatory language under the RJA.

Lieutenant Wright’s description of the organizational culture and activities of “Black gangs” was not an appeal to implicit racial bias, but instead as a way of conveying his knowledge of the organizational culture and activities of the group of gangs to which Bankston belonged.

Asserted RJA violations

Bankston asserts that the prosecutor’s closing argument contained several instances of racially discriminatory language, including her description of Bankston as a “hardcore gang member,” “killing machine,” and “thug”; her appeal to the values of “a civilized society”; and her use of a well-worn tale about a Bengal tiger to caution the jurors against judging Bankston based solely on his demeanor in the courtroom. The Attorney General concedes that the Bengal tiger story involved use of racially discriminatory language within the meaning of the RJA. (§ 745, subds. (a)(2), (h)(4).) The Attorney General takes the position that the prosecutor’s prohibited argument cannot be shown to have been harmless beyond a reasonable doubt and thus requires reversal of the death judgment. (§ 745, subds. (e)(2)(B), (k).) The Court agreed that the prosecutor’s argument violated the RJA and that reversal of the death judgment is warranted.

The court made clear whatever the intent behind telling the story may be, the Bengal tiger story should no longer be told in California courtrooms.

Prejudice analysis

The prosecutor invited the jury to imagine Bankston as an “enormous” Bengal tiger with his “muscles all flexed out,” “claws out,” “fangs” visible, and growling, and placed the tiger deep in the “jungle[ ].” She repeatedly called him a “thug.” These comments were an invitation to judge Bankston’s character in a manner that appeals to implicit racial bias.

Disposition

The Court reversed the judgment of death and remand to the trial court for proceedings consistent with this opinion.

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