• Racial Justice Act, Penal Code §745 
• Explicit and implicit racial biases in the courtroom 

California’s Racial Justice Act, as contained in Penal Code §745, prohibits investigative practices as well as the use of evidence or trial tactics exhibiting explicit and implicit racial biases in a criminal investigation or criminal trial. 

Defendant Akeem Simmons, in Philadelphia, and nightclub disc jockey Danny Graves, in Los Angeles, were friends. Graves was also Simmons’ supplier of marijuana in late 2017 to early 2018. Simmons is a Black man who was a barber in Philadelphia, selling marijuana on the side to supplement his income. He frequently traveled to Los Angeles to socialize with Graves, and to buy drugs. When in L.A., Simmons and Graves would hook up with friends, meeting and dating women.  

Simmons gave Graves $10,000 on one such visit for the purchase of marijuana. Graves passed this money onto his supplier who failed to deliver, interrupting the supply chain. Although Graves was eventually able to secure 22 pounds of marijuana for Simmons, this didn’t cover the amount of money that had been lost. Simmons was not happy. In March and May of 2018, Simmons unsuccessfully tried to kill Graves, shooting at him but missing the first time, and gravely wounding him the second time. Charged in state court with two counts of attempted murder and related charges, Simmons was convicted of the first attempt but acquitted of the second despite Graves having identified defendant as the shooter in both, and with the same gun used in both. Simmons testified in his own defense at trial, denying being the shooter in either instance. 

During the trial, in what the appellate court described as a “lengthy and disjointed cross-examination,” the prosecutor made a big thing out of Simmons’ relationships with women, getting him to acknowledge that he “always (tries) to be charming.” The prosecutor also commented several times that Simmons is a “light-skinned” Black man, asking him to compare his skin tone to that of other people he mentioned in his testimony. Presumably, this was for the purpose of supporting identification evidence of him as the shooter in both cases. 

Simmons did not deny that he could easily be mistaken as Caucasian or Hispanic, and that “yes,” the women did in fact love him. During the prosecutor’s closing and rebuttal arguments, she made repeated references to Simmons’ race, his good looks, his “charming” nature, and the fact that he was so light-skinned that he could have been mistaken for a White or Hispanic man. 

Convicted of the March attempted murder, Simmons’ sentencing was delayed due to COVID until January 4, 2021. This happened to be three days after the effective date of the California Legislature-enacted Racial Justice Act, Penal Code §745. At sentencing, neither party mentioned this new legislation. Sentenced to life in prison plus a 20-year enhancement?for the firearm use, and a concurrent term of 27 months for attempting to evade police when originally arrested, Simmons appealed. 

The Second District Court of Appeal (Div. 6), in a two-to-one decision, reversed.  

Simmons’ primary contention on appeal, in fact the only one discussed, was the applicability of the just-enacted Racial Justice Act (RJA), found in Penal Code §745. Specifically, Simmons argued that the prosecutor violated the?RJA?by repeatedly referring to his skin tone, suggesting that he could be mistaken as being Hispanic or “even White,” and arguing, or at least suggesting, that he was deceptive and not a credible witness because he had an “ambiguous ethnic presentation.” In addition, Simmons submitted that the prosecutor’s many questions during cross-examination, as well as her comments about his relationships with women and his “charming” personality, also had a racist tone. 

The People conceded that the prosecutor’s comments regarding Simmons’ ambiguous ethnic presentation violated the RJA, but contended that the comments regarding his relationships with women were proper commentary on his credibility. The issue arose following the legislative enactment of AB 2542, The California Racial Justice Act of 2020, which became effective as of Jan. 1, 2021. By its terms, (i.e., subdivision (j)), this section applied to all cases for which judgment had not yet been entered, which included Simmons’ case. (Note: P.C. §745 was amended subsequent to this case by AB 256, applicable to all cases not final as of Jan. 1, 2023, through Jan. 1, 2026, depending on the nature of the sentencing that applied. See new subdivision (j)(1)-(5).) The RJA sought to deal with discrimination in California’s criminal justice trial system, whether “explicit” (intentional) or “implicit” (unintentional). The court first noted the legislative findings relative to racial biases in the courtroom and elsewhere: 

 “‘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.’...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 legislative findings provided several examples of cases in which trial and appellate courts have tolerated racist testimony from expert witnesses, racial bias exhibited by defense counsel and the use by prosecutors of ‘racially incendiary or racially coded language, images, and racial stereotypes,’ including ‘cases where prosecutors have compared defendants who are people of color to Bengal tigers and other animals, even while acknowledging that such statements are ‘highly offensive and inappropriate.’...The legislature’s findings noted a ‘growing awareness that no degree or amount of racial bias is tolerable in a fair and just criminal justice system, that racial bias is often insidious, and that purposeful discrimination is often masked and racial animus disguised...Examples of the racism that pervades the criminal justice system are too numerous to list.’” (Pgs. 332-333.) 

Having identified the problem, the court then noted that the RJA’s intent is “to eliminate racial bias from California’s criminal justice system,” noting that “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.” The court further pointed out that it is not the court’s intent to punish those who engage in explicit or implicit racial bias, “but rather to remedy the harm to the defendant’s case and to the integrity of the judicial system.” Further, “(i)t is the intent of the legislature to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.” The court also noted that where alleged to have occurred, it is the defendant’s burden to prove by a preponderance of the evidence (subd. (c)(2)) at least one 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; or: 

     (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.” (Subd. (a)           (1) and (2).) 

Sanctions also may be imposed if the defendant can prove by a preponderance of the evidence that he or she was convicted of a more serious offense or received a stiffer penalty due to their race. (Subd. (a)(3) and (4).)  

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.” The court further noted that “(e)vidence 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.”  

Provisions are made in the statute for an evidentiary hearing should the defendant make a prima facie showing of a violation. (Subd. (c).) Depending on the nature and the timing of the violation, various remedies are available to the court: declaring a mistrial, discharging the jury and starting over, or outright dismissal of the case, and everything in between. (See subd. (e).)  

The parties to this appeal agreed that the prosecutor violated the RJA in her rebuttal argument when she said to the jury: Simmons “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.” This constitutes a violation of the prohibition described in P.C. §745(a)(2). It’s a violation, according to the court, because her statements equate the defendant’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.  

As opined by the court: “The suggestion that a witness is lying based on nothing more than his complexion is as baseless as it is offensive.?Section 745?targets precisely this sort of racially biased language.” Simmons’ argument on appeal was that he was “denied the effective assistance of counsel” because his attorney didn’t recognize the prosecutor’s argument to the jury as a violation of the three-day-old P.C. §745, and object to it.  

As dictated by the penalty provisions contained in P.C. §745 at subd. (e), Simmons was entitled at the very least to a mistrial and/or the empaneling of a new jury and a new trial. “The statute forecloses any traditional case-specific harmless error analysis. The legislature’s stated intent in adopting 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.’” (Italics in original.)  

As such, defense counsel’s ineffectiveness was automatically material, requiring that the case be reversed and remanded to the trial court for the purpose of allowing the court “to exercise its (P.C. § 745, subd. (e)) discretion to select which of the enumerated remedies it would impose.”  

I can’t fault the prosecutor here, or anyone else. No one involved in this case — the prosecutor, the defense attorney, nor the trial court judge — predicted that the very recently effective RJA would be interpreted so strictly. (Note: They would have at least been aware of P.C. §745’s existence had they each subscribed to LegalUpdates.com and read my “New and Amended Statutes Update” that was published on January 1, 2021).  

The dissenting justice did not disagree with the majority’s finding of bias under P.C. §745, by the way. His argument is that it is the courts —and not the legislature — that ultimately determine whether a miscarriage of justice results from a RJA violation, and thus whether sanctions are appropriate, an issue both sides suggest needs to be resolved by the California Supreme Court.  

Also, reading this case and the legislature’s (and the court’s) findings that racial biases are rampant throughout California’s criminal justice system might piss you off. (It did me.) But we have a professional obligation to set aside any disagreement we might have with this conclusion and recognize that racial biases — explicit and implicit — do exist in our criminal justice system, at least to some extent, and deal with it. The recent passing of O.J. Simpson, with all the racial overtones emanating from both sides of the courtroom in his 1994-95 double-murder trial, should remind us all about this indisputable fact. 

This case and other RJA court decisions [Finley v. Superior Court (2023) 95 Cal.App.5th 12, Bonds v. Superior Court (2024) 99 Cal.App.5th 821, People v. Lashon (2024) 98 Cal.App.5th 804, Mosby vs. Superior Court (2024) 99 Cal.App.5th 106, People v. Coleman (2024) 98 Cal.App.5th 709] should be read very carefully and considered when, as a cop, you are making arrests and doing criminal investigations; as a lawyer, when you are prosecuting or defending criminal cases involving minorities; and, as a judge, when you are overseeing such cases.  

If you get nothing else from this case, you need to note that it takes very little to violate the RJA, and that the consequences to your case are extensive.