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Name: People v. Coleman (2024) 98 Cal.App.5th 709
Case #: A165198
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 01/05/2024
Summary

Trial counsel’s advice regarding defendant’s manner of speaking while testifying did not indicate racial bias sufficient to support a violation of the Racial Justice Act (RJA). Defendant appealed his conviction of first degree murder, arguing the court should reverse his conviction because his trial counsel exhibited racial bias toward him in violation of the RJA by advising him to “use Ebonics, slang, and to sound ghetto” when he testified. Held: Affirmed. The RJA 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.” (§ 745, subd. (a).) The RJA includes four categories of conduct, any one of which, if proven by a preponderance of the evidence, establishes a violation of the RJA. (§ 745, subd. (a)(1)–(4).) As relevant here, a violation can occur if an attorney in the case exhibited bias or animus towards the defendant because of the defendant’s race or used racially discriminatory language about the defendant’s race. (§ 745, subd. (a)(1) & (2).) Relying on the record developed at his Marsden hearing, defendant argued that his attorney exhibited at least implicit bias toward him based on his race when she allegedly told him “to speak [E]bonics and sound ghetto” and to “use [his] slang” when he testified. Defense counsel explained her advice to defendant was to “speak how you speak” and not to adopt a different manner of speech in order to avoid appearing inauthentic before the jury. A defense attorney’s salient advice to a defendant to speak in his own voice when he testifies does not indicate bias or animus toward the defendant because of his race, ethnicity, or national origin. Thus, defendant did not meet his burden “to demonstrate by a preponderance of the evidence that defense counsel’s sound advice indicated racial animus or bias toward him.” [Editor’s Note: As the RJA was not raised specifically during trial, on appeal defendant argued that Assembly Bill No. 1118’s amendments to the RJA (effective on 1/1/2024) permitted him to raise this issue for the first time on direct appeal. The court exercised its discretion to reach the merits of defendant’s RJA claim and did not decide whether AB 1118’s amendments to section 745 excuse forfeiture.]

Defendant’s claim that his enhancements should have been dismissed under Penal Code section 1385 was forfeited where trial counsel failed to request that the court strike the enhancements. Defendant was sentenced on April 19, 2022, over four months after the effective date of Senate Bill No. 81, which amended section 1385. Under section 1385, a defendant has the right to “invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading.” However, any failure on the part of a defendant to invite the court to dismiss under section 1385 waives or forfeits his right to raise the issue on appeal. [Editor’s Note: The Court of Appeal agreed with defendant that the trial court erred in imposing a parole revocation restitution fine after sentencing him to LWOP, and ordered the fine stricken.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A165198.PDF