A defense attorney’s advice to a defendant to “speak how you speak” does not indicate racial bias to support a violation of the RJA

THE PEOPLE, Plaintiff and Respondent v.DEMETRIUS COLEMAN,Defendant and Appellant. A165198; Filed 1/5/20242024 WL 64082 (Cal.App. 1 Dist.)

Summary: A defense attorney’sadvice to a defendant to speak in his or her own voice when he or she testifies does not indicate bias or animus toward a defendant because of his or her race, ethnicity, or national origin. The California Racial Justice Act of 2020 (RJA) (Stats. 2020, ch. 317) is not violated when a testifying defendant follows an attorney’s advice to speak authentically and in his normal manner, even if the result is that the defendant testifies using slang terms, a certain accent, or a certain linguistic style.

Coleman was convicted by a jury of first degree murder with special circumstances that the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(21))1 and an enhancement for personally and intentionally discharging a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).)

Coleman argued that his conviction should be reversed because his trial counsel exhibited racial bias toward him in violation of the RJA by advising him to “use Ebonics, slang, and to sound ghetto,” when he testified. The Court of Appeal disagreed.

Racial Justice Act

Coleman argued  that his conviction should be reversed because his attorney violated the RJA by exhibiting racial bias against him. Specifically, he asserts that his attorney advised him to “use Ebonics, slang, and to sound ghetto,” when he testified and that by doing so she at least exhibited implicit bias toward him.

On December 30, 2020, Coleman made an oral Marsden motion to replace his appointed attorney for advising him “to speak Ubonics [sic] and sound ghetto” when he testified. She told him to “use my slang.” When he asked her why he should do this, his  attorney said she did not want him to sound like someone he was not. Coleman felt that his counsel’s advice was discriminatory against him.

Coleman’s counsel responded as follows: “He wanted, … or was concerned about, I guess, trying to speak in a different manner. My experience has been, in serious felony trials, including murder, that … the jury will be able to pick up on if someone’s trying to speak in a way that’s not authentic or genuine, and it produces very, very bad results. So … I told him … don’t be anybody that he’s not. ‘Speak how you speak. They’re going to be able to know if you’re trying to fake it and … adopt a manner of speech that’s not yourself.’  … It wasn’t based in race at all. And at points I would redirect him and … question him, ‘Well, what does that actually mean,’ to explain it to the jury so nothing went over their head, for sure.”

The trial court denied defendant’s Marsden motion on all grounds and found that defendant did not demonstrate ineffective assistance of counsel. However, the trial court decided to appoint new counsel who could investigate a potential motion for new trial, including possibly based on ineffective assistance of counsel due to an alleged disagreement between defendant and his counsel as to whether he should testify.

The RJA became effective on January 1, 2021. (§ 745, added by Stats. 2020, ch. 317, § 3.5.) The Legislature enacted the RJA with the intent “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(i); see Young v. Superior Court (2022) 79 Cal.App.5th 138, 149–150.) The goal of the RJA is “to provide remedies that will eliminate racially discriminatory practices in the criminal justice system, in addition to intentional discrimination.” (Stats. 2020, ch. 317, § 2(j).)

The RJA provides: “The 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 RJA includes four categories of conduct, any one of which, if proven by a preponderance of the evidence, establishes a violation of the RJA. (§ 745, subd. (a)(1)–(4).) It is a violation of the RJA if: “(1) [t]he judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin”; or “(2) [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 about the defendant’s race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful. This paragraph 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.” (§ 745, subd. (a)(1) & (2).)

Assembly Bill No. 1118 (2023–2024 Reg. Sess.) (Assembly Bill No. 1118),  became effective on January 1, 2024, and amended subdivision (b) of section 745 as follows: “A defendant may file a motion pursuant to this section, or a petition for writ of habeas corpus or a motion under Section 1473.7, in a court of competent jurisdiction, alleging a violation of subdivision (a). For claims based on the trial record, a defendant may raise a claim alleging violation of subdivision (a) on direct appeal from the conviction or sentence. The defendant may also move to stay the appeal and request remand to the superior court to file a motion pursuant to this section.” (§ 745, subd. (b), amended by Stats. 2023, ch. 464, § 1, eff. Jan. 1, 2024.) Coleman asserts that the trial record establishes a violation of section 745 and that he may raise this issue on direct appeal.

No RJA Violation

The Legislature’s stated intent in enacting the RJA was “ ‘to eliminate racial bias from California’s criminal justice system because racism in any form or amount, at any stage of a criminal trial, is intolerable, inimical to a fair criminal justice system, is a miscarriage of justice under article VI of the California Constitution, and violates the laws and Constitution of the State of California.’ ” (People v. Simmons (2023) 96 Cal.App.5th 323, 333, petn. for review filed Dec. 1, 2023, S282895, quoting Assem. Bill No. 2542 [(2019–2020 Reg. Sess.)], § 2, subd. (i).) The RJA may be violated by evidence of unintentional or implicit bias or animus toward a defendant based on the defendant’s race, ethnicity, or national origin. (§ 745, subd. (a)(2).)

Coleman argued  that the record shows he testified in “a highly unusual and informal manner, repeatedly using slang, street vernacular, improper English, and other language inappropriate in any formal courtroom setting ….” He cites examples from the record highlighting his use of slang terms, such as: he would “[c]harge a dollar off each bag,” which meant he received $100 for each pound of marijuana sold; he “smash[ed]” in his truck, which meant he had sex; and he repeatedly referred to “ ‘bags,’ ” “ ‘weed,’ ” and “ ‘totes.’ ” He further references his response, when asked about Regina O. and Jovan I.’s share of the proceeds from their marijuana deal, that he “wasn’t worried about they cut because I wasn’t concerned about what they got they cut for or what they got each the bag for or if it was theirs or—you know what I mean? I was just there to make that deal then worry about my people getting up out of there.” (Sic.) Further, he cites to the answer he gave when he was asked if he understood Jovan I. to be Bulgarian.7 Defendant responded that he did not know the difference between Bulgarians, Serbians, and Russians and that “[i]n the gang where I’m at, we call them Bulgarians on the street ….”

Nothing about defendant’s use of these terms or the manner of his overall testimony suggests that his attorney exhibited racial bias or animus toward him. It is not unusual for witnesses of any race to use slang terms in cases involving illegal drug dealing.

Defense counsel confirmed that her advice to Coleman was to “ ‘[s]peak how you speak’ ” and not to adopt a different manner of speech in order to avoid appearing inauthentic before the jury. As the trial court found, in denying defendant’s Marsden motion, defense counsel was not ineffective for advising defendant to “be yourself” when he testified.

When a defendant testifies in his or her own defense, his or her credibility is always at issue. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.) The record establishes that defense counsel had a valid tactical reason for advising defendant not to change his manner of speaking. Counsel was not ineffective for recognizing the importance of defendant’s appearing authentic and genuine when he testified before his jury. This record falls far short of meeting defendant’s burden to demonstrate by a preponderance of the evidence that defense counsel’s sound advice indicated racial animus or bias toward him. A defense attorney’s advice to a defendant to “ ‘[s]peak how you speak’ ” when testifying, without more, does not indicate racial bias or animus sufficient to support a violation of the RJA.

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