Racial Justice Act claim must be preserved in trial court to be appealed

People v. Corbi (2024) 106 Cal.App.5th 25, 35 [327 Cal.Rptr.3d 284, 289], as modified on denial of reh’g (Nov. 20, 2024), review filed (Dec. 4, 2024)

Summary: Corbi was convicted in the Superior Court, San Diego County, of second degree murder with a firearm enhancement. Corbi appealed.

The Court of Appeal held that defense counsel’s objection to the prosecutor’s closing argument comments about defendant did not preserve defendant’s appellate argument alleging the prosecutor’s remarks violated the California Racial Justice Act (RJA).

Corbi, who is Mexican-American, contends that the prosecutor violated the California Racial Justice Act of 2020 (RJA) during closing arguments by referencing his interest in white women.

The prosecution presented photos and messages from Corbi’s Facebook profile created after the shooting. In the photo, Corbi is shown making the letter “D” with his hand. The photo is captioned: “Papas n beer OMW #holla at wueritas[.]” The prosecutor suggested the photo was relevant to show flight after a crime—and thus consciousness of guilt—since Papas & Beer was “a famous cantina down in” Mexico. Defense counsel initially objected to all of the Facebook evidence on foundation grounds, but ultimately agreed that the detectives who arrested Corbi could identify him in the photos. She did not ask to exclude the photo or redact any portion of the caption under the RJA.

The California Racial Justice Act of 2020

The RJA, which took effect January 1, 2021, 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 RJA was intended “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.” (Assem. Bill No. 2542 (2019–2020 Reg. Sess.) § 2, subd. (i).) The Legislature’s goal was “to provide remedies that will eliminate racially discriminatory practices in the criminal justice system, in addition to intentional discrimination.” (Id., § 2, subd. (j).) The Legislature recognized that “[i]mplicit bias, although often unintentional and unconscious, may inject racism and unfairness into proceedings similar to intentional bias” and specified that its intent was “not to punish this type of bias, but rather to remedy the harm to the defendant’s case and to the integrity of the judicial system.” (Id., § 2, subd. (i).)

The RJA specifies four categories of conduct, any one of which, if proven by a preponderance of the evidence, establishes a violation. (§ 745, subd. (a)(1)–(4).) A violation occurs when, “[d]uring 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.” (Id., subd. (a)(2).) However, “[t]his paragraph *38 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.” (Ibid.)

The statute defines “[r]acially 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.” (§ 745, subd. (h)(4).) “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.” (Ibid.)

Corbi forfeited his RJA claim by failing to raise it at trial.

Corbi argues that the prosecutor’s remarks about his interest in white women were racially discriminatory under the RJA because they “primed implicit bias of jurors about interracial relationships in general, and about stereotypes of men-of-color seeking out white women for sex in a predatory manner in particular.” In any event, his interest in white women was irrelevant to the shooting. Making these remarks in the context of arguing that he was brazen and unremorseful amplified their discriminatory effect

Could a defendant could raise an RJA claim for the first time on direct appeal.  Lashon, supra, 98 Cal.App.5th 804, 317 Cal.Rptr.3d 92, the First Appellate District, Division Three concluded that “long-standing procedural appellate rules governing forfeiture of issues continue to apply” in this context. A defendant may be found to have forfeited an RJA claim made for the first time on direct appeal absent a showing that some exception to the forfeiture doctrine applies.

The Lashon court  analyzed the language of section 745. Although section 745, subdivision (b) now expressly permits a defendant “to  raise a claim alleging a violation of subdivision (a) on direct appeal,” the appellate court emphasized that the statute does not say that defendants may raise such claims for the first time on direct appeal. Absent such language, the court concluded that “review of 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.”

The court found support for its interpretation in section 745 subdivision (c). (Lasho That provision currently provides: “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. A motion made at trial shall be made as soon as practicable upon the defendant learning of the alleged violation. A motion that is not timely may be deemed waived, in the discretion of the court.” (§ 745, subd. (c).) Subdivision (c) goes on to describe the evidence that may be presented at the hearing, the burden of proof, and the requirement for the court to make its findings on the record. (Id., subd. (c)(1)–(3).)

The Lashon court reasoned that  it would not make sense “for the Legislature to prescribe a comprehensive procedure for making and adjudicating a section 745 motion at the trial level (including a specific waiver provision for untimely motions), only to allow defendants who could have but did not use that procedure (thereby preserving their claim for review) to bypass that procedure and pursue a section 745 claim for the first time on direct appeal.”

The Court here interpreted Lashon  to hold that a defendant forfeits an RJA argument that could have been raised in the trial court but was not. Forfeiture is not appropriate where a defendant has no reasonable means of making the argument.

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