People v. Simmons ( 2023 )

Filed 10/12/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B309921
(Super. Ct. No. BA468709)
Plaintiff and Respondent, (Los Angeles County)
v.
AKEEM SIMMONS,
Defendant and Appellant.
The Racial Justice Act (RJA) seeks to eliminate racism
from criminal trials in California. Here we decide the RJA does
not violate article VI, section 13 of the California Constitution.
We acknowledge the dissent’s cogent argument 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. We are hopeful, indeed confident, that our Supreme
Court will resolve this issue … soon.
Akeem Simmons appeals 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 appellant personally used a
handgun in committing the attempted murder. (§ 12022.53,
subds. (b), (c).) It acquitted appellant of a second count of
attempted murder on the same victim. 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.
Appellant contends that numerous evidentiary, procedural,
and instructional errors occurred at his trial. Of primary interest
to us is the contention that the prosecutor violated the RJA,
section 745, during her cross-examination of appellant 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 concedes the
prosecutor’s rebuttal argument violated section 745 and that
defense counsel rendered ineffective assistance. We agree. The
judgment is reversed and the matter remanded to the trial court
for further proceedings as mandated by the RJA.
Facts
Danny Graves, a nightclub disc jockey and middle-man
supplier of marijuana, sold several pounds of marijuana to
appellant on a couple of occasions in late 2017 and early 2018.
He considered himself to be a friend of appellant’s, whom he
called “Red.” The two socialized at Graves’s house and appellant
stayed overnight there at least twice.
All statutory references are to the Penal Code unless
1
otherwise stated.
2
Appellant lived and worked as a barber and marijuana
seller in and around Philadelphia, Pennsylvania. He frequently
traveled to Los Angeles to buy drugs. While in Southern
California, appellant would also socialize with friends and meet
and date women.
When appellant bought marijuana from Graves and others,
the seller would package it and send it to an address in the
Philadelphia area provided by appellant. In late 2017 or early
2018, appellant gave Graves $10,000 for marijuana. Graves gave
the money to another supplier who failed to deliver the
marijuana to Graves. As a result, Graves could not send
appellant the marijuana or return his cash. He called appellant
and explained the situation. Within a few weeks, Graves mailed
appellant 22 pounds of marijuana.
The First Shooting.
At about 11:00 a.m. on March 25, 2018, Graves was
backing his pickup truck out of his driveway when he saw
appellant pull up next to him in a smaller white SUV. Appellant
got out of the SUV and pulled a handgun from his pocket. Graves
testified that the look on appellant’s face told him that appellant
“came with a mind to do something.” He decided to “just drive off
for [his] safety.” Through his rear view mirror, Graves saw
appellant stand in the middle of the street and shoot at Graves’s
truck. Appellant fired seven shots. There were holes in the side
of the truck, the back window, and the seats, but Graves himself
was not injured.
Graves identified appellant as the shooter to the
responding police officer and later to the investigating detective.
The police recovered several casings from a .45 caliber gun.
Footage from neighbors’ surveillance cameras captured the
3
incident, but the shooter’s face was obscured by a truck parked on
the street. Another neighbor testified that she looked out her
apartment window when she heard the gunshots. She saw
someone standing in the street whom she described as “fair-
skinned” and of “medium-build.” She did not see the person’s
face.
The Second Shooting.
In the early morning hours of May 19, 2018, Graves was
standing outside his house when he was confronted by three men,
one of whom pointed a gun at his face. Graves scurried to take
cover under a van that was parked in the driveway. He felt and
heard several shots. Graves yelled for help. The shooter and
accomplices fled. Graves, who had been shot four times, was
transported to the hospital. He identified appellant as the
shooter. Graves later confirmed the identification when the
investigating detective showed him a photograph of appellant.
Portions of this incident were also captured on surveillance video
but the images were not sufficient by themselves to identify the
shooters.
A Los Angeles police department criminalist testified that,
based on an analysis of casings recovered after each shooting, one
gun was used in the March 25 shooting and two guns were used
in the May 19 shooting. All the recovered casings were .45
caliber. One casing from the May 19 shooting matched the
casings found on March 25. The criminalist concluded that the
same gun was used in both shootings.
The jury found appellant not guilty of attempted murder in
connection with the May 19 shooting.
4
Appellant’s Arrest.
Between the two shootings, Graves received phone calls
from a Pennsylvania number but did not speak to the caller.
Detective Soto, the investigating detective, obtained a search
warrant for that number and tracked the phone to an apartment
on Serrano Avenue in Los Angeles. When Soto arrived at the
address, he saw a person matching appellant’s description sitting
in a car outside the apartment. The car drove off when Soto
walked toward the apartment door. Geolocation tracking showed
that the phone was moving away from the apartment, in the
same location as the car was headed.
Los Angeles police officers began surveillance of the
Serrano address. In early June 2018, an officer saw appellant
leave the building and get into a gray BMW. He called for
backup and several marked police cars began following the BMW.
Appellant eventually pulled over but then drove off at a high rate
of speed. After crashing his car, appellant jumped out and ran.
He was arrested shortly thereafter. Appellant had a New York
driver’s license and a Social Security card in the name of “Kevin
Husband.” Paperwork found inside the BMW listed its owner as
Kevin Husband and mail addressed to that name was also found
at the Serrano address. Multiple cell phones were recovered from
the BMW.
The Serrano Avenue Apartment.
Ladana Tate rented the apartment on Serrano Avenue
where appellant was seen and where “Kevin Husband” received
mail. After appellant’s arrest, she gave a recorded interview to
Detective Bellows. Tate told Bellows that appellant had been her
boyfriend since March and that he sometimes used the name
Kevin Husband. She knew appellant was from Pennsylvania and
5
that he frequently traveled to Los Angeles. He stayed at her
place “weekly” from March 2018 to June 2018. Tate told Bellows
that appellant sold drugs and that he “had issues” with someone
who owed him money. She believed appellant wanted to confront
that person because appellant had a gun. At some point,
appellant asked to borrow her Honda Accord to conduct
“surveillance” on this person. She agreed to swap cars with him.
Tate told Bellows that she became pregnant by appellant in
March 2018 and had an abortion. This caused problems in their
relationship. Tate was also aware that appellant was seeing
other women. They did not speak for a few weeks after the day
they switched cars.
In her trial testimony, Tate denied most of the statements
she made to Detective Bellows and even denied recognizing her
voice on the recording of the interview.
Appellant’s Trial Testimony.
Appellant testified and denied any involvement in either
shooting. He claimed to have met the victim, Danny Graves,
through a mutual friend, “Pops.” Graves sold quantities of
methamphetamine and cocaine to Pops. Appellant believed he
and Graves were friends. They spent time together at Graves’s
house and at the nightclub where he worked. In October 2017, he
was with Graves when Graves got into a confrontation with
someone who then “pulled out a gun and started shooting at
him.”
Appellant and Graves had a falling out after he gave
Graves money for marijuana that Graves could not deliver. After
Graves sent him 22 pounds of marijuana, appellant considered
their business concluded and found another marijuana supplier.
6
Appellant testified that he always had at least two cell
phones: one for friends and family and one for business. He
changed the business phone number monthly. Appellant never
had the Pennsylvania number the police were investigating.
Appellant denied telling Tate that he needed to surveil
Graves. He asked to borrow her car because he wanted to keep
tabs on someone else who owed him money. He and Tate “hooked
up” a few times. They broke up because appellant did not believe
he was responsible for Tate’s pregnancy and did not want to pay
for it. She also was not happy that appellant was seeing other
women.
During a lengthy and disjointed cross-examination, the
prosecutor seemed to focus on appellant’s relationships with
women, the people and places he visited while in California, and
his use of a false name to buy a car and make airline
reservations, rather than on his relationship with Graves or the
circumstances of either shooting. She mentioned on many
occasions that appellant is a “light-skinned” Black man and
asked him to compare his skin tone to that of other people
mentioned in his testimony.
For example, when the prosecutor asked appellant to
describe “Pops,” the mutual friend who introduced appellant to
Graves, she asked whether Pops was “dark-skin or light-skin like
[appellant].” Appellant answered, “He’s brown skin. Not dark.
But not as light as I am.” The prosecutor again asked, “Darker
than you?” Appellant confirmed that Pops was “[d]arker.”
Similarly, appellant testified that the man who shot at
Graves in October was “light skinned.” The prosecutor asked
appellant to confirm that he was also light skinned and that
7
“[s]ometimes people mistake you for something other than
Black.” Appellant answered “Sometimes.”
“[Carrion]: Sometimes people mistake you for maybe even
white, right?
“[Appellant]: No. Never white.”
The prosecutor responded by speculating, “It’s pretty safe
to say that there are all kinds of people mistaking you for
something other than Black; right?” Appellant replied that
sometimes people who did not know him would mistake his race.
The cross-examination of appellant also focused on four
women he met in Southern California during the months before
the shootings. There was no evidence any of these women were
involved with the victim or with either shooting. The prosecutor
asked detailed questions about where appellant met each woman,
how many times he saw them, and when he stayed at their
apartments. Appellant testified that, during one trip to Los
Angeles in February, he spent the entire weekend at Tate’s
apartment. The prosecutor asked, “Were you trying to be
charming with Ladana too?” Appellant replied, “I always try to
be charming.”
Prosecutor’s Closing Arguments.
During both her closing and rebuttal arguments, the
prosecutor told the jury that appellant was not credible and lied
whenever it was convenient for him, even to people, like the
victim, who trusted him. “You know who else trusted him?
Numerous women that agreed to go out with him. That he lied
to. And numerous other people that he did business with.”
Repeating the theme later in her argument, the prosecutor
described appellant as having been “so charming yesterday.” “I’m
sure he was just as charming with all the women that he’s
8
coached into bed while he was roaming the streets of Los Angeles
in 2017 . . . .” She pointed out that he refused to answer many
questions, claimed not to remember other facts, and changed his
answers on other occasions. “He lied to you. He tried to bat his
eyes and put on nice clothes and be charming the way he used to
be charming with all of the other women and some of his business
partners. . . . And the defendant even told you himself, ‘I always
try to be charming.’ So I argue you should consider not believing
anything he says.”
The prosecutor concluded her rebuttal argument by
reminding the jury that, when appellant was on the stand, he
“talked his smooth talk that he uses, I’m sure, with the ladies
and that he uses, I’m sure, with new clients. He told you how he
always tried to be charming. He 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.”
On November 13, 2019, the jury returned its verdicts
convicting appellant of the March 25, 2018, attempted murder
and finding him not guilty of the May 19, 2018, attempted
murder. It also found appellant guilty of fleeing a pursuing peace
officer’s motor vehicle while driving recklessly, in violation of
Vehicle Code section 2800.2. Appellant’s probation and
sentencing hearing was continued until January 4, 2021, in
response to the COVID-19 pandemic and to permit newly
retained defense counsel to file a motion for new trial. 2 The
2The motion for new trial, attachments, and any written
opposition to it could not be located by the Clerk of the Superior
Court and for that reason are not included in the record. The
9
motion for new trial and the sentencing hearing occurred on
January 4, 2021, three days after the effective date of the RJA.
Appellant’s counsel did not mention the RJA at the hearing.
Contentions on Appeal
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 and not a credible witness because he had an
“ambiguous ethnic presentation.” In addition, appellant contends
the prosecutor’s many questions and comments about his
relationships with women and “charming” personality also had a
racist tone. Respondent concedes the comments regarding
appellant’s ambiguous ethnic presentation violated the RJA, but
contends the comments regarding his relationships with women
were proper commentary on his credibility.
Appellant contends numerous other errors occurred at his
trial. Because the RJA violation is dispositive, however, we do
not address those contentions.
The RJA
In enacting the RJA, our Legislature found and declared,
“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 (2019-2020 Reg. Sess.) § 2, subd. (a)
(hereafter Assem. Bill No. 2542).) The Legislature found that,
record does, however, include the reporter’s transcript of the
hearing on the motion.
10
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.”
(Id., subd. (c).) In its view, current law “is insufficient to address
discrimination in our justice system. [Citations.] Even when
racism clearly infects a criminal proceeding, under current legal
precedent, proof of purposeful discrimination is often required,
but nearly impossible to establish.” (Ibid.) 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.’” (Id.,
subd. (e).)
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.” (Assem. Bill No. 2542,
§ 2, subd. (h).)
It then declared 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.” (Assem. Bill No.
11
2542, § 2, subd. (i).) The legislative findings note that it is not
the intent of the Legislature to punish explicit or implicit racial
bias, “but rather to remedy the harm to the defendant’s case and
to the integrity of the judicial system. It is the intent of the
Legislature to ensure that race plays no role at all in seeking or
obtaining convictions or in sentencing. It is the intent of the
Legislature to reject the conclusion that racial disparities within
our criminal justice are inevitable, and to actively work to
eradicate them.” (Ibid.) The Legislature also declared its intent
to “eliminate racially discriminatory practices” in the system and
to provide individual defendants with “access to all relevant
evidence, including statistical evidence, regarding potential
discrimination in seeking or obtaining convictions or imposing
sentences.” (Id., subd. (j).)
To accomplish this goal, 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
12
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.” (§ 745, subd. (a)(1),(2).) 3 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.”
(Id., subd. (h)(4).)
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. 4 (§ 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
3 A violation of the statute may also be established if the
defendant was charged with or convicted of a more serious
offense, or received a more severe sentence, than similarly
situated defendants of other races, ethnicities, or national
origins. (§ 745, subd. (a)(3), (4).) These subdivisions are not at
issue here.
4 A motion in the trial court “shall be made as soon as
practicable” and “may be deemed waived, in the discretion of the
court,” if not made in a timely manner. (§ 745, subd. (c).)
13
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.
14
“(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).)
Discussion
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.” We agree.
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 at issue here violates subdivision (a) because it equates
15
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 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.
The statute, however, also establishes an exclusive set of
procedures for addressing violations of its terms. Subdivision (b)
of section 745 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).” There is no provision in section 745 for raising a violation of
the statute for the first time on direct appeal.
Here, however, appellant 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. Respondent concedes defense counsel was ineffective
in this regard and we agree.
To prevail on an ineffective assistance of counsel claim,
appellant must satisfy the test established in Strickland v.
Washington (1984) 466 U.S. 668. “First, the defendant must
show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant [under] the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” (Id. at
16
p. 687; see also People v. Ledesma (1987) 43 Cal.3d 171, 215.) To
satisfy the first part of the test, appellant must demonstrate that
“counsel’s representation fell below an objective standard of
reasonableness.” (Strickland, at p. 688.) To satisfy the second,
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.” (Id. at p. 694.)
The RJA violation at issue here occurred during the
prosecutor’s rebuttal closing argument, before the RJA took
effect. Counsel should, however, have raised the issue at the first
opportunity after the statute took effect, appellant’s sentencing
hearing. The failure to do so was both objectively unreasonable
and prejudicial within the meaning of Strickland. 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. Accordingly, appellant has established that he
received ineffective assistance of counsel because counsel failed to
raise the RJA violation at his sentencing hearing.
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
17
Constitution of the State of California.” (Assem. Bill No. 2542,
§ 2, subd. (i), italics added.)
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).)
We further note that, in 2022, the Legislature amended
section 745 to add subdivision (k) which expressly allows for a
prejudice analysis in a narrow class of cases. “For petitions that
are filed in cases for which judgment was entered before January
1, 2021, and only in those cases, if the petition is based on a
violation of paragraph (1) or (2) of subdivision (a), the petitioner
shall be entitled to relief as provided in subdivision (e), unless the
state proves beyond a reasonable doubt that the violation did not
contribute to the judgment.” (§ 745, subd. (k), italics added.)
Subdivision (k) thus limits any analysis of individualized
prejudice to cases in which judgment was entered before January
1, 2021. This is a strong indication that the Legislature did not
intend a case-specific prejudice inquiry to be performed in cases,
like this one, where judgment was entered after January 1, 2021.
Nor does the California Constitution require a case-specific
prejudice inquiry. Article VI, section 13 of the California
Constitution provides, “No judgment shall be set aside, or new
18
trial granted, in any cause, on the ground of misdirection of the
jury, or of the improper admission or rejection of evidence, or for
any error as to any matter of pleading, or for any error as to any
matter of procedure, unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion
that the error complained of has resulted in a miscarriage of
justice.” The RJA represents the Legislature’s express
determination 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.” (Assem. Bill No. 2542, § 2, subd. (i).)
Article VI, section 13 does not prohibit the Legislature from
making this presumptively constitutional determination.
To understand the interplay between the RJA and article
VI, section 13 of the California Constitution, we begin with a
fundamental principle of constitutional adjudication: “‘Unlike
the federal Constitution, which is a grant of power to Congress,
the California Constitution is a limitation or restriction on the
powers of the Legislature. [Citations.] Two important
consequences flow from this fact. First, the entire law-making
authority of the state, except the people’s right of initiative and
referendum, is vested in the Legislature, and that body may
exercise any and all legislative powers which are not expressly, or
by necessary implication denied to it by the Constitution.
[Citations.] . . . Secondly, all intendments favor the exercise of the
Legislature’s plenary authority . . . .’” (Pacific Legal Foundation
v. Brown (1981) 29 Cal.3d 168, 180 (Brown), quoting Methodist
Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691.)
19
Because the Legislature has the entire law-making
authority of the state, any doubts concerning its power to act
legislatively are resolved in favor of the Legislature’s action.
(California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th
231, 254 (Matosantos).) The presumption of constitutionality is
even stronger where the Legislature enacts a statute with the
relevant state constitutional provisions in mind. “‘Although the
ultimate constitutional interpretation must rest, of course, with
the judiciary [citation], a focused legislative judgment on the
question enjoys significant weight and deference by the courts.’”
(Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151,
192-193, quoting Brown, supra, 29 Cal.3d at p. 180.)
We further note that nothing in article VI, section 13 of the
California Constitution prohibits the Legislature from defining
certain errors as a miscarriage of justice. The constitutional
provision empowers reviewing courts to assess the underlying
facts of and procedures employed in each case to determine
whether an error impacted the outcome. It also limits the court’s
power to set aside a judgment or order a new trial in the absence
of a miscarriage of justice. (People v. Blackburn (2015) 61 Cal.4th
1113, 1139-1140 (conc. opn. of Liu, J.).)
But article VI, section 13 of the California Constitution
does not limit, or even mention, the plenary law-making
authority of Legislature. It has exercised that authority here to
declare that racially discriminatory language used during trial
constitutes a miscarriage of justice within the meaning of article
VI, section 13. Because the state constitution does not limit the
Legislature’s power to define a miscarriage of justice, we must
conclude it has properly exercised its authority to do so here.
(Matosantos, supra, 53 Cal.4th at p. 254 [“We thus start from the
20
premise that the Legislature possesses the full extent of the
legislative power and its enactments are authorized exercises of
that power. Only where the state Constitution withdraws
legislative power will we conclude an enactment is invalid for
want of authority”].)
We have 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. There remains the question of the proper remedy.
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.”
(Ibid.) 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).)
Consequently, we remand the matter to the trial court so it may
exercise its discretion in this regard.
21
Conclusion
The judgment is reversed. The matter is remanded to the
trial court for further proceedings consistent with section 745 and
this opinion.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
I concur:
BALTODANO, J.
22
YEGAN, J., Dissenting:
The majority opinion upholds the Legislature’s attempt to
create an exception to the constitutional “miscarriage of justice”
reversal requirement for violations of the California Racial
Justice Act of 2020 (RJA). (Assem. Bill No. 2542 (2019-2020 Reg.
Sess.) Stats. 2020, ch. 317, § 1.) As Justice Mosk said, “The
Goddess of Justice is wearing a black arm-band today, as she
weeps for the Constitution of California.” (Brosnahan v. Brown
(1982) 32 Cal.3d 236, 299 (dis. opn. of Mosk, J.) (Brosnahan).)
“[T]he mythical Goddess of Justice . . . is depicted [as wearing a
blindfold] to illustrate her impartiality and freedom from
external influences.” (Fujii v. State of California (1952) 38 Cal.2d
718, 739 (conc. opn. of Carter, J.).)
Justice Mosk noted: “James Madison, in the Federalist
Papers (No. LXXVIII), wrote, inter alia, ‘The interpretation of the
laws is the proper and peculiar province of the courts. A
constitution is, in fact, and must be regarded by the judges, as a
fundamental law. It, therefore, belongs to them [the judges] to
ascertain its meaning . . . .’” (Brosnahan, supra, 32 Cal.3d at p.
298.) But the majority opinion concludes that, as to violations of
the RJA, it belongs to the Legislature, not the judiciary, to
determine the meaning of “miscarriage of justice” in Article VI,
section 13 of the California Constitution (section 13). As I
explain below, the majority’s deferral to the Legislature violates
the California Constitution’s separation of powers clause.
The Attorney General and appellant agree with the
majority opinion. Therefore, it is unlikely that a party will file a
petition for review in the California Supreme Court. “If no
petition for review is filed, the Supreme Court may, on its own
motion, order review of a Court of Appeal decision . . . .” (Cal.
Rules of Court, rule 8.512(c)(1).) If neither party files a petition
for review, I urge the Supreme Court to grant review on its own
motion.
I respectfully dissent from the majority opinion’s holding
that section 13 does not “require a case-specific prejudice inquiry”
where, as here, there is a violation of the RJA and judgment was
entered after January 1, 2021. (Maj. opn., ante, at p. 18.) The
majority concludes “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 . . . .” (Id., at p. 21.)
Section 13 provides, “No judgment shall be set aside, or
new trial granted, in any cause, on the ground of misdirection of
the jury, or of the improper admission or rejection of evidence, or
for any error as to any matter of pleading, or for any error as to
any matter of procedure, unless, after an examination of the
entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a
miscarriage of justice.” “This test is not met unless it appears
‘reasonably probable’ the defendant would have achieved a more
favorable result had the error not occurred.” (People v.
Breverman (1998) 19 Cal.4th 142, 149 (Breverman).) “[F]or over
100 years, the California Constitution has . . . expressly
precluded reversal absent prejudice.” (F.P. v. Monier (2017) 3
Cal.5th 1099, 1107 (Monier).) The Legislature may not enact a
statute that amends the California Constitution. “Wherever
statutes conflict with constitutional provisions, the latter must
prevail.” (People v. Navarro (1972) 7 Cal.3d 248, 260.)
“To be sure, even under . . . section 13, an error is
reversible per se when it constitutes ‘a “‘structural [defect] in the
2
. . . trial mechanism’” that defies evaluation for harmlessness.’
([Citation]; see People v. Anzalone (2013) 56 Cal.4th 545, 554 . . .
[‘A structural error requires per se reversal because it cannot be
fairly determined how a trial would have been resolved if the
grave error had not occurred.’]; Sandquist v. Lebo Automotive,
Inc. (2016) 1 Cal.5th 233, 261 . . . [finding error ‘reversible per se’
because its ‘effects are “‘unmeasurable’” and “‘def[y] analysis by
“harmless-error” standards’”’].)” (Monier, supra, 3 Cal.5th at p.
1108.)
“[T]he defining feature of a structural error is that it
‘affect[s] the framework within which the trial proceeds,’ rather
than being ‘simply an error in the trial process itself.’” (Weaver v.
Massachusetts (2017) 582 U.S. 286, 295 (Weaver).) “Examples of
structural errors in the criminal context include the total
deprivation of the right to counsel at trial, a biased judge,
unlawful exclusion of members of the defendant’s race from a
grand jury, denial of the right to self-representation at trial,
denial of the right to a public trial, and an erroneous reasonable
doubt instruction to the jury.” (In re Enrique G. (2006) 140
Cal.App.4th 676, 685.)
“‘[C]ategorization of an error as structural represents “the
exception and not the rule.”’ [Citation.] ‘[A] strong presumption’
exists against finding that an error falls within the structural
category, and ‘it will be the rare case’ where an error—even ‘a
constitutional violation’—‘will not be subject to harmless error
analysis.’” (Monier, supra, 3 Cal.5th at p. 1108.)
The United States or California Supreme Court ordinarily
decides whether an error is structural. Except for the RJA, I am
aware of no instance in the history of California law where the
3
Legislature has purported to define what constitutes structural
error.
The violation here of the RJA cannot be characterized as a
structural error or defect. It did not “‘affect[] the framework
within which the trial proceed[ed]’ . . . ” (Weaver, supra, 582 U.S.
at p. 295.) It was “‘simply an error in the trial process itself.’”
(Ibid.) “The effect of this form of error can be quantitatively
assessed in light of the evidence to determine whether the error
was prejudicial or harmless.” (Breverman, supra, 19 Cal.4th at p.
174.) There is no doubt that any violation of the RJA is harmless
in this case. The majority does not opine on this issue which
surely lurks below the surface of its opinion.
The prosecutor’s violation of the RJA may be characterized
as a form of misconduct. “California appellate courts have
repeatedly recognized that even flagrant misconduct by a
prosecutor does not relieve them of their obligation to ascertain
whether the misconduct resulted in a miscarriage of justice
within the meaning of article VI, section 13, of the California
Constitution.” (People v. Luparello (1986) 187 Cal.App.3d 410,
427.) “Whatever methods a trial or appellate court might
otherwise use to bring to heel a recalcitrant or incorrigible
prosecutor, the federal Constitution does not require (and the
state Constitution does not permit) the reversal of a criminal
conviction unless the misconduct deprived defendant of a fair
trial or resulted in a miscarriage of justice.” (People v. Hinton
(2006) 37 Cal.4th 839, 865, italics added.)
The majority opinion notes, “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 a miscarriage of
4
justice under Article VI of the California Constitution and violates
the laws and Constitution of the State of California.’ (Assem. Bill
No. 2542, § 2, subd. (i), italics added.)” (Maj. opn., ante, at pp. 17-
18.) But by mandating that “racism in any form or amount . . . is
a miscarriage of justice under Article VI,” the Legislature
usurped the judiciary’s authority to determine what constitutes
“a miscarriage of justice” within the meaning of Article VI.
Section 13 provides that a judgment shall not be reversed “unless
. . . the court [not the Legislature] shall be of the opinion that the
error complained of has resulted in a miscarriage of justice.”
(Italics added.) The Legislature’s usurpation of this judicial
function violated the separation of powers clause of the California
Constitution, which provides, “The powers of state government
are legislative, executive, and judicial. Persons charged with the
exercise of one power may not exercise either of the others except
as permitted by this Constitution.” (Cal. Const., Art. III, § 3.)
“The separation of powers doctrine limits the authority of
one of the three branches of government to arrogate to itself the
core functions of another branch. [Citations.] ‘“The courts have
long recognized that [the] primary purpose [of the separation-of-
powers doctrine] is to prevent the combination in the hands of a
single person or group of the basic or fundamental powers of
government.”’ [Citations.] To serve this purpose, courts ‘“have
not hesitated to strike down provisions of law that either accrete
to a single Branch powers more appropriately diffused among
separate Branches or that undermine the authority and
independence of one or another coordinate Branch.”’” (Carmel
Valley Fire Protection Dist. v. State of California (2001) 25
Cal.4th 287, 297 (Carmel Valley Fire).)
5
“The founders of our republic viewed the legislature as the
branch most likely to encroach upon the power of the other
branches. [Citations.] The principle of separation of powers
limits any such tendency. . . . [I]t prohibits the legislative branch
from arrogating to itself core functions of the executive or judicial
branch.” (Carmel Valley Fire, supra, 25 Cal.4th at p. 298.)
A core function of the judicial branch is to interpret the
California Constitution, including section 13. It is a “well-
established jurisprudential principle that, ‘The judiciary, from
the very nature of its powers and means given it by the
Constitution, must possess the right to construe the Constitution
in the last resort . . . .’ (Nogues v. Douglass (185[7]) 7 Cal. 65,
[]70; see also Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137,
176, [2 L.Ed. 60 . . .] [[in a unanimous decision Chief Justice John
Marshall wrote that] interpreting and applying the Constitution
is ‘the very essence of judicial power’]; [Citation.])” (Raven v.
Deukmejian (1990) 52 Cal.3d 336, 354 (Raven).) “It would be idle
to make the Constitution the supreme law, and then require the
judges to take the oath to support it, and after all that, require
the Courts to take the legislative construction as correct.”
(Nogues v. Douglass, supra, 7 Cal. at p. 70; see also Legislature v.
Eu (1991) 54 Cal.3d 492, 509 [“Raven[, supra, 52 Cal.3d at pp.
352-355] . . . invalidated a portion of Proposition 115 because it
deprived the state judiciary of its foundational power to decide
cases by independently interpreting provisions of the state
Constitution”]; Breverman, supra, 19 Cal.4th at p. 178, fn. 26
[“the meaning of the . . . California Constitution (art. VI, § 13),
[is] a matter on which we are the final arbiter”].)
“‘[T]he [L]egislature may put reasonable restrictions upon
constitutional functions of the courts provided they do not defeat
6
or materially impair the exercise of those functions.’” (Superior
Court v. County of Mendocino (1996) 13 Cal.4th 45, 58.) The
courts’ core function to interpret the California Constitution is
defeated and materially impaired by the Legislature’s direction
that a violation of the RJA constitutes a miscarriage of justice
within the meaning of section 13. We have been applying the
“miscarriage of justice” constitutional rule for at least the last one
hundred years. The application of this rule involves the exercise
of judgment by appellate court justices based upon their legal
knowledge and experience. The Legislature has no comparable
knowledge or experience. It is ill-equipped to dictate how we
should perform our judicial functions.
In addition to violating the separation of powers clause, the
Legislature has created a statutory scheme that will waste scarce
judicial resources and undermine the public’s confidence in the
fairness of our criminal justice system. Defense counsel will
scour trial transcripts in search of the new and magical reversal
ticket: “During the defendant’s trial, . . . 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.” (Pen. Code, § 745, subd. (a)(2).) If judgment was
entered after January 1, 2021, and counsel discovers such
language or such an exhibition of “bias or animus,” counsel may
be able to obtain a reversal of the defendant’s conviction even if
the violation of the RJA was innocuous and the evidence of the
defendant’s guilt was overwhelming. (Pen. Code, § 745, subd.
(e)(2)(A).)
7
As Justice Peters said over fifty years ago: “Our courts are
not gambling halls but forums for the discovery of truth.” (People
v. St. Martin (1970) 1 Cal.3d 524, 533.) Here, a jury determined
the truth of the charges against appellant. The jury’s acquittal of
appellant on a second count of attempted murder indicates it was
not swayed by the prosecutor’s use of “[r]acially discriminatory
language.” (Maj. opn., ante, at p. 15.)
“A defendant is entitled to a fair trial, but not a perfect
one.” (Lutwak v. United States (1953) 344 U.S. 604, 619.)
Appellant was convicted not because of racial bias or
discrimination, but because he attempted to murder his drug
supplier for failing to deliver the marijuana he had purchased.
There is no reason to believe that the offense was not committed
or that the victim was mistaken in his identification of appellant.
Accordingly, the prosecutor’s comment about “appellant’s
complexion and ‘ambiguous ethnic presentation’” (Maj. opn., ante,
at p. 21) did not result in “a miscarriage of justice” as that term
has been construed by the courts. The People, witnesses, and the
trial court should not be subjected to the expense, delay, and
burden of a retrial.
In enacting the RJA, the Legislature’s goal was “to
eliminate racial bias from California’s criminal justice system,”
“to ensure that race plays no role at all in seeking or obtaining
convictions or in sentencing,” and “to provide remedies that will
eliminate racially discriminatory practices in the criminal justice
system . . . .” (Stats. 2020, ch. 317, § 2, subds. (i), (j).) The
Legislature’s goal is laudable, but to achieve that goal it has
resorted to an extreme unconstitutional measure that may wreak
havoc on the criminal justice system.
8
I agree with Chief Justice John Marshall that “[i]t is
emphatically the province and duty of the judicial department to
say what the [constitutional] law is.” (Marbury v. Madison,
supra, 5 U.S., at p. 177.) It is therefore also emphatically the
province and duty of the judiciary, not the Legislature, to
determine what constitutes a “miscarriage of justice” within the
meaning of section 13. The Legislature cannot dismantle
California’s separation of powers doctrine by dictating to the
judiciary how the California Constitution should be construed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
9
David V. Herriford, Judge
Superior Court County of Los Angeles
______________________________
John Lanahan for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sillivan Pithey, Assistant
Attorney General, Scott A. Taryle, Idan Ivri, Stephanie C.
Santoro and Blythe J. Leszkay, Deputy Attorneys General, for
Plaintiff and Respondent.