Prima facie showing of violation of Racial Justice Act in trial court requires reversal of murder conviction

People v. Howard (Cal. Ct. App., Aug. 27, 2024, No. H050156) 2024 WL 3947977, at *1

Summary: Howard shot a man at a nightclub in San Jose. At trial, Howard testified that he acted in self-defense. A jury convicted him of second degree murder.

After the jury’s verdict but prior to sentencing, Howard filed a motion alleging the prosecutor had violated the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 3.5; Pen. Code, § 7451) (hereafter RJA or Act). Howard asserted the prosecutor violated the RJA by cross-examining him about his connection to East Palo Alto. The trial court denied the motion, deciding Howard failed to make a prima facie showing of an RJA violation, and sentenced him to prison for 19 years to life.

On appeal, Howard contends the trial court erred in denying his motion because he had demonstrated violations of the RJA and due process clause. Howard claimed the prosecutor violated the Act and due process by arguing to the jury that the victim’s use of the n-word before the shooting was not offensive in Howard’s “world.” The Court of Appeal held that the trial court erred in concluding that Howard had not made a prima facie showing of a violation of the RJA as to the prosecutor’s cross-examination. The Court reversed the judgment and remand for further proceedings on Howard’s motion.

Howard’s Racial Justice Act (RJA) claim: (1) the prosecutor violated the RJA and constitutional due process protections by cross-examining him about whether he grew up in and was connected to East Palo Alto (first RJA claim); (2) the prosecutor further violated the RJA and due process protections by arguing that Reinol’s use of the n-word before the shooting was not offensive in Howard’s “ ‘world’ ” (second RJA claim).

Howard identified himself as “African American” and Howard asserted that “East Palo Alto has a reputation for being unsafe, violent, gang-related. In 1992, East Palo Alto was dubbed the ‘murder capital of the world [sic].’ East Palo Alto, or EPA, was also historically predominately African American.”

Howard contended the prosecutor committed misconduct and violated his rights under the Act “by repeated questions trying to connect him to East Palo Alto.” Because East Palo Alto, or EPA, was historically an African American community and was known as the murder capital of the world [sic], the prosecution was seeking to introduce improper character evidence, and  Howard’s racial background against him.

Racial discrimination, whether explicit or implicit is no longer acceptable in the criminal courtroom given the passage of the Racial Justice Act.” Howard urged the court to find that he met his burden to show, by a preponderance of the evidence, a violation of the Act under section 745, subdivision (a)(2) (section 745(a)(2)).

The purpose of the Racial Justice Act is ‘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 [and] inimical to a fair criminal justice system ….’ (Stats. 2020, ch. 317, § 2, subd. (i) [uncodified].)” (Bonds v. Superior Court (2024) 99 Cal.App.5th 821, 828, 318 Cal.Rptr.3d 226 (Bonds).)

Current section 745(a)(2) provides: “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.”

“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.” (§ 745, subd. (c).)

Under section 745, subdivision (h)(2), a “ ‘[p]rima facie showing’ means that the defendant produces facts that, if true, establish that there is a substantial likelihood that a violation of subdivision (a) occurred.” “[A] ‘substantial likelihood’ requires more than a mere possibility, but less than a standard of more likely than not.” (Ibid.)

The Court of Appeal in Finley v. Superior Court (2023) 95 Cal.App.5th 12, 312 Cal.Rptr.3d 907 (Finley)  “agreed that the type of information a defendant should present at the prima facie stage of a Racial Justice Act case is similar to the information a defendant should present in a habeas petition, the standard by which a court assesses the information is somewhat different. In a habeas proceeding, ‘the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them.’ Under the Racial Justice Act, the court does not ask if the defendant proffered facts sufficient to demonstrate actual entitlement to relief. Rather, the court asks if a defendant has proffered facts sufficient to show a ‘substantial likelihood’–defined as ‘more than a mere possibility, but less than a standard of more likely than not’–that the Racial Justice Act has been violated.  The prima facie threshold is thus lower than the preponderance of the evidence standard required to establish an actual violation of the Racial Justice Act.” (Id. at p. 22, 312 Cal.Rptr.3d 907.)

The court should not make credibility determinations at the prima facie stage.

At a hearing under section 745, “evidence may be presented by either party” (§ 745, subd. (c)(1)) and “[t]he 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).)

Howard made a prima face showing under RJA

Courts have recognized that a person’s place of residence may serve as a proxy for race. (See, e.g., People v. Turner (2001) 90 Cal.App.4th 413, 420, 109 Cal.Rptr.2d 138; United States v. Bishop (9th Cir. 1992) 959 F.2d 820, 825–826 overruled on another ground by United States v. Nevils (9th Cir. 2010) 598 F.3d 1158, 1167.) The Legislature has categorized a “prospective juror’s neighborhood” (Code Civ. Proc., § 231.7, subd. (e)(4)) as a presumptively invalid reason for exercising a peremptory challenge “unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race … and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case.” (Id., subd. (e).)

The trial court had information that could be accepted as true for the prima facie determination, including the statements in the motion about East Palo Alto’s history of violence and its historical racial makeup, the link to the website, and the general reputation of East Palo Alto in the 1990’s.

Howard satisfied his initial minimal burden to produce facts that, if true, establish that there is more than a mere possibility of an RJA violation. Because Howard made the requisite showing in his RJA motion, the trial court erred in failing to hold a hearing on the alleged violation of section 745(a)(2). (See Mosby, supra, 99 Cal.App.5th at p. 131, 317 Cal.Rptr.3d 658.)

Given that “evidence may be presented by either party” at the hearing (§ 745, subd (c)(1)), the Court of Appeal conditionally reversed the judgment and remand this matter to the trial court with directions to hold a hearing on Howard’s RJA motion. (See Mosby, supra, 99 Cal.App.5th at p. 131, 317 Cal.Rptr.3d 658; see also People v. Maldonado (2023) 87 Cal.App.5th 1257, 1259, 1269, 304 Cal.Rptr.3d 391 [remanding for an evidentiary hearing upon finding the defendant had made a prima facie case for sentencing relief under section 1172.6].)

In concluding Howard made a prima facie showing of an RJA violation under section 745 subdivision (c), we do not decide that Howard has established that the prosecutor’s questions violated the Act. (§ 745, subd. (c)(2).) The trial court erred in declining to hold an evidentiary hearing on Howard’s motion. The Court of Appeal gave no opinion on whether Howard’s RJA motion should be granted or denied following further proceedings. It expressed no opinion on the remedy that should be imposed if the trial court were to find that Howard has proved a violation of the Act.

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