Error and/or relief
The defendant has demonstrated by a preponderance of evidence that the prosecutor used racially discriminatory language, including language that, to an objective observer, compares the defendant to an animal, within the meaning of the Racial Justice Act (RJA).
The judgment is reversed.The defendant’s conviction and sentence are vacated and are legally invalid. The matter is remanded to the trial court for further proceedings consistent with Penal Code section 745(a).
First Holding:
Effective January 1, 2021, 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. An RJA violation may be established if the defendant proves by a preponderance of the evidence that 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, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.
Racially discriminatory language includes language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, language that compares the defendant to an animal. Thus, the RJA prohibits the use of racially discriminatory language that directly appeals to bias and facially neutral language that implicitly appeals to racial bias. To identify language that falls in the latter category, in particular, requires a nuanced inquiry that is sensitive to context.
Authority:
PEN 745
People v. Bankston (2026) 19 Cal.5th 786, 856-857
Second Holding:
It is undisputed that the RJA took effect before jury selection, trial, and entry of judgment here. At no point in the trial proceedings, however, did the defendant object to the statements he now challenges from the prosecutor’s voir dire, opening statement, and closing argument, despite raising the RJA at other points during the trial. Many appellate courts have found that a section 745 claim, like any other appellate claim, is subject to the general appellate rules of preservation and forfeiture of claims that could have been but were not made in the trial court.
Authority:
People v. Lashon (2024) 98 Cal.App.5th 804, 812
People v. Quintero (2024) 107 Cal.App.5th 1060, 1074
People v. Corbi (2024) 106 Cal.App.5th 25, 39
People v. Singh (2024) 103 Cal.App.5th 76, 114–115
People v. Wagstaff (2025) 111 Cal.App.5th 1207, 1219
People v. Gomez (2026) 118 Cal.App.5th 384, 391–392
Third Holding:
Nothing in the chaptered amendments to section 745 enacted by AB 1071 (2025-2026 Reg. Sess.) requires a reviewing court to address record-based RJA claims on direct appeal. The plain language of the statute establishes what was intended by the Legislature, and when the statutory language is clear, there is no need to resort to statutory construction.
Although early versions of AB 1071 introduced and ultimately passed by the Legislature and enacted into law contained language that record-based claims on appeal shall not be subject to waiver, that language was eliminated in the legislative process. We cannot overlook this deletion in determining the legislative intent. A review of the legislative history reflects that the Legislature intended to leave courts free to apply the forfeiture doctrine to unpreserved RJA claims.
Authority:
People v. Statum (2002) 28 Cal.4th 682, 690
People v. The North River Ins. Co. (2025) 18 Cal.5th 1, 19, fn. 4 [considering amendments to bill as aid in determining legislative intent]
Fourth Holding:
That RJA claims are generally subject to forfeiture, however, does not end our analysis. Neither forfeiture nor application of the forfeiture rule is automatic. Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.
The purpose of a timely objection to preserve claims of error is to permit the trial court to address an alleged issue and to cure any curable defects. Absent certain exceptions, appellate courts do not consider claims of error that could have been raised below because it is typically both unfair and inefficient to permit a claim which could have been properly litigated and addressed in the trial court.
But this case presents a unique scenario not typically present when a litigant fails to preserve a claim: The trial court was alerted that the prosecutor’s comments may have implicated racial bias during voir dire but swiftly rejected that interpretation.
(Gary note: The facts on which the court relied are not of any value to this summary, as they were case specific. The prosecutor compared the defendant to animals, and in more than simply a passing or light reference, and the court failed to sustain the defense objection.)
Authority:
People v. McCullough (2013) 56 Cal.4th 589, 593
People v. Partida (2005) 37 Cal.4th 428, 434
People v. Vera (1997) 15 Cal.4th 269, 275–276, overruled on a different ground as stated in People v. French (2008) 43 Cal.4th 36, 47, fn. 3
People v. Saunders (1993) 5 Cal.4th 580, 590
People v. Scott (1994) 9 Cal.4th 331, 353
People v. Perez (2020) 9 Cal.5th 1, 7–8
Fifth Holding:
On this unique record, where we see no likelihood that counsel’s reiteration of the objection by the prospective juror* would have produced a different result or finding, or that objections to predator/prey references—connoting nonhuman predators without specifically identifying any—would have been any more fruitful than prospective juror No. 50’s objection to the prosecutor’s direct reference to jurors judging a pit bull, we will exercise our discretion to reach the merits of defendant’s RJA claims to forestall his ineffective assistance of counsel claim.
(*Gary note: a prospective juror actually raised the objection to the prosecution’s analogy during voir dire, and the trial court rejected it. On the merits of the RJA claim, the court analyzed details of the statement made during the trial by the prosecution, the defense, and the court, and concluded that the defendant demonstrated by a preponderance of the evidence that the prosecution used racially discriminatory language during voir dire and closing arguments in violation of section 745(a)(2). That analysis has no value outside the unpublished opinion other than to the defendant, so I have not included it.)
Authority:
People v. Monroe (2022) 85 Cal.App.5th 393, 400
People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6,
People v. Gonzalez (2024) 107 Cal.App.5th 312, 326
Sixth Holding:
Finding a violation of the RJA, as judgment has already been entered, we vacate the defendants’ convictions and sentences and remand the matter to the trial court for determination of a remedy, potentially including retrial. The RJA expressly requires that after a judgment has been entered, if a violation of the RJA has been found, the court shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent with subdivision (a). In the course of our review of the record, we conclude that there was sufficient evidence to support the verdict within the meaning of appellate review, and thus retrial is not barred.
Authority:
PEN 745(e)(2)(A)
People v. Superior Court (Woodward) (2024) 100 Cal.App.5th 679, 697 [a determination of legal insufficiency of the evidence serves as a constitutional bar to retrial for that offense]