The RJA does not violate article VI, section 13 of the California Constitution

People v. Simmons (Cal. Ct. App., Oct. 12, 2023, No. 2D CRIM. B309921) 2023 WL 6631578, at *1

Summary: The Racial Justice Act (RJA) aims to eliminate racism from criminal trials in California. The Court of Appeal held that  the RJA does not violate article VI, section 13 of the California Constitution. The dissent argued  that the RJA violates article VI because section 13 states that it is the province of the court to decide whether an error results in a miscarriage of justice.

Simmons appealed his conviction, by jury, of the attempted willful, premeditated, and deliberate murder of Danny Graves (Pen. Code, §§ 187, 664)1 and fleeing a pursuing peace officer’s motor vehicle while driving recklessly. (Veh. Code, § 2800.2.) The jury further found he personally used a handgun in committing the attempted murder. (§ 12022.53, subds. (b), (c).) The trial court sentenced appellant to life in prison plus a 20-year enhancement term for the firearm use and a concurrent term of 27 months on the evading conviction.

Summons claims that the prosecutor violated the RJA, section 745, during her cross-examination of him and her rebuttal closing argument, and that his counsel was ineffective for failing to raise the issue at the sentencing hearing, which was held after the effective date of the RJA. Respondent conceded the prosecutor’s rebuttal argument violated section 745 and that defense counsel rendered ineffective assistance. The Court of Appeal reversed and remanded to the trial court for further proceedings as mandated by the RJA.

Violations of the RJA

Appellant contends the prosecutor violated the RJA (§ 745) by repeatedly referring to his skin tone, suggesting that he could be mistaken for being Hispanic or “even white,” and arguing that he was deceptive because he had an “ambiguous ethnic presentation.” Simmons argued that the prosecutor’s questions and comments about his relationships with women and “charming” personality also had a racist tone. Respondent concedes the comments about Simmons’ ambiguous ethnic presentation violated the RJA, but contends the comments regarding his relationships with women were proper commentary on his credibility.

The RJA

“Discrimination in our criminal justice system based on race, ethnicity, or national origin (hereafter ‘race’ or ‘racial bias’) has a deleterious effect not only on individual criminal defendants but on our system of justice as a whole…. Discrimination undermines public confidence in the fairness of the state’s system of justice and deprives Californians of equal justice under law.” ( Assem. Bill No. 2542).) The Legislature found that, while racial bias is “widely acknowledged as intolerable in the criminal justice system,” it persists because “courts generally only address racial bias in its most extreme and blatant forms.”  In its view, current law “is insufficient to address discrimination in our justice system.  Even when racism clearly infects a criminal proceeding, under current legal precedent, proof of purposeful discrimination is often required, but nearly impossible to establish.”

The Legislature stated its intent “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.”

Subdivision (a) of section 745 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. A violation is established if the defendant proves, by a preponderance of the evidence, any of the following: (1) The 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.  (2) During 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.” The statute defines “racially discriminatory language” as 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.”

Raising a RJA Claim

To raise the question of whether section 745 was violated during a criminal proceeding, the defendant “may file a motion in the trial court,” a petition for writ of habeas corpus, or a motion under section 1473.7. (§ 745, subd. (b).) “If a motion is filed in the trial court and the defendant makes a prima facie showing of a violation of subdivision (a), the trial court shall hold a hearing.” (Id., subd. (c).) Either party may present evidence at the hearing. (Id., subd. (c)(1).) “The defendant shall have the burden of proving a violation of subdivision (a) by a preponderance of the evidence. The defendant does not need to prove intentional discrimination.” (Id., subd. (c)(2).) At the conclusion of the hearing, the trial court must make findings on the record. (Id., subd. (c)(3).)

If the trial court finds that a violation of section 745, subdivision (a), has occurred, the statute requires it to impose one of the remedies identified in the statute. Subdivision (e) provides:

“Notwithstanding any other law, except … for an initiative approved by the voters, if the court finds, by a preponderance of evidence, a violation of subdivision (a), the court shall impose a remedy specific to the violation found from the following list:

“(1) Before a judgment has been entered, the court may impose any of the following remedies:

“(A) Declare a mistrial, if requested by the defendant.

“(B) Discharge the jury panel and empanel a new jury.

“(C) If the court determines that it would be in the interest of justice, dismiss enhancements, special circumstances, or special allegations, or reduce one or more charges.

“(2)(A) After a judgment has been entered, if the court finds that a conviction was sought or obtained in violation of subdivision (a), the court shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent with subdivision (a). If the court finds that the only violation of subdivision (a) that occurred is based on paragraph (3) of subdivision (a), the court may modify the judgment to a lesser included or lesser related offense. On resentencing, the court shall not impose a new sentence greater than that previously imposed.

“(B) After a judgment has been entered, if the court finds that only the sentence was sought, obtained, or imposed in violation of subdivision (a), the court shall vacate the sentence, find that it is legally invalid, and impose a new sentence. On resentencing, the court shall not impose a new sentence greater than that previously imposed.

“(3) When the court finds there has been a violation of subdivision (a), the defendant shall not be eligible for the death penalty.

“(4) The remedies available under this section do not foreclose any other remedies available under the United States Constitution, the California Constitution, or any other law.” (§ 745, subd. (e).)”

The statute applies to “all cases in which judgment is not yet final.” (§ 745, subd. (j)(1).)

Violation of RJA

The parties agree that the prosecutor violated the RJA when she stated in her rebuttal argument, “[Appellant] bragged about all the women he was able to fool with his good looks, and he admitted to having an ambiguous ethnic presentation and that people that don’t know him think he’s something other than Black.” The Court of Appeal agreed.

The RJA is violated when, “During the defendant’s trial, in court and during the proceedings, … an attorney in the case … used racially discriminatory language about the defendant’s race, ethnicity or national origin, … whether or not purposeful.” (§ 745, subd. (a)(2).) Racially discriminatory language includes “language that references the defendant’s physical appearance, culture, ethnicity, or national origin.” (Id., subd. (h)(4).) The comment  here violates subdivision (a) because it equates appellant’s skin tone and “ethnic presentation” with deception, implying that he was not a credible witness because the color of his skin fooled women and confused strangers.

The procedures for addressing violation of the RJA  provides, “A defendant may file a motion in the trial court or, if judgment has been imposed, may file 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).”  Section 745 does not provide  for raising a violation of the statute for the first time on direct appeal.

Simmons contends he was denied the effective assistance of counsel because his counsel failed to bring the violation to the trial court’s attention at the sentencing hearing, which occurred three days after the effective date of section 745. The Court found ineffective assistance of counsel.

To prevail on an ineffective assistance of counsel claim, appellant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Although the RJA violation here occurred during the prosecutor’s rebuttal closing argument, before the RJA took effect, Simmons’s attorney should have raised the issue at the first opportunity after the statute took effect at the sentencing hearing. The failure to do so was both objectively unreasonable and prejudicial. Once a violation of the statute has been established, the trial court is required to “impose a remedy specific to the violation” from the list of remedies provided. (§ 745, subd. (e).) Imposing any one of the enumerated remedies would have changed the result of the proceeding.

Subdivision (e) of section 745 therefore provides that, once a violation of the RJA has been established, the trial court “shall impose” one of the enumerated remedies. The plain language of the statute thus mandates that a remedy be imposed without requiring a show of prejudice. As one treatise explains, “The Legislature’s directive is clear: if the court finds a violation, a remedy shall be imposed, and the remedy must come from the list provided by the Legislature. The imposition of a remedy does not depend on a finding of actual harm or prejudice to the defendant’s case.” (Couzens, et al., Sentencing California Crimes (The Rutter Group, Aug. 2022) § 28:5, subd. (C)(1).)

The Court of Appeal concluded that the Legislature acted within its law-making authority when it declared in the RJA that the use of racially discriminatory language in a criminal trial constitutes a miscarriage of justice, that the prosecutor violated the statute when she referred to appellant’s complexion and “ambiguous ethnic presentation” as reasons to doubt his credibility, and that his counsel was ineffective for failing to bring this statutory violation to the attention of the trial court at the earliest possible opportunity.

Subdivision (e) of section 745 provides that, once a violation has been established, the trial court “shall impose a remedy” from a list of possible remedies. Some remedies apply before a judgment is entered (id., subd. (e)(1)); others apply after a judgment has been entered. (Id., subd. (e)(2).) In addition, subdivision (e)(4) provides that the enumerated remedies “do not foreclose any other remedies available under the United States Constitution, the California Constitution, or any other law.” Because appellant’s trial counsel failed to raise the violation at the sentencing hearing, the trial court has not yet had the opportunity to exercise its discretion to select which of the enumerated remedies it would impose. (Id., subd. (e).) The Court of Appeal remanded the matter to the trial court so it may exercise its discretion in this regard.

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