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Name: People v. Simmons (2023) 96 Cal.App.5th 323
Case #: B309921
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/12/2023

The prosecutor violated the Racial Justice Act (RJA) during closing argument when she referred to defendant’s complexion and “ambiguous ethnic presentation” as reasons to doubt his credibility and defense counsel was ineffective for failing to raise the RJA issue in the trial court. Simmons was convicted of attempted premeditated murder. On appeal, the court addressed an RJA issue that was not raised in the trial court. Held: Reversed and remanded. The parties agreed that the prosecutor violated the RJA when she stated in her rebuttal closing argument that 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.” 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).) The comment in this case violates the RJA “because it equates 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 RJA took effect after the prosecutor’s closing argument, but before Simmons’ sentencing hearing. Defense counsel’s failure to raise the RJA violation at Simmons’ sentencing hearing constituted ineffective assistance of counsel.

The Legislature properly exercised its authority to declare that racially discriminatory language used during trial constitutes a miscarriage of justice, and no case-specific prejudice inquiry was required in this case. Section 745(e) provides that, once an RJA violation has been established, the trial court “shall impose a remedy” from a list of possible remedies. In 2022, the Legislature amended section 745 to add subdivision (k), which expressly allows for a prejudice analysis in a narrow class of RJA cases where the “judgment was entered before January 1, 2021, and only in those cases.” The plain language of the statute mandates that a remedy be imposed (and no case-specific prejudice inquiry be performed) in RJA cases, like this one, where judgment was entered after January 1, 2021. The Court of Appeal also analyzed the California Constitution (which requires a court to determine that an error resulted in a miscarriage of justice before a judgment is reversed or a new trial is granted) and concluded that it does not prohibit the Legislature from defining certain errors as a miscarriage of justice. “[T]he 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 . . . .” In this case, the trial court has not had the opportunity to exercise its discretion to select which of the remedies enumerated in section 745(e) it would impose. The Court of Appeal remanded the matter to the trial court so it may exercise its discretion.

Dissent: Justice Yegan dissented, explaining that the Legislature’s attempt to create an exception to the constitutional “miscarriage of justice” reversal requirement for violations of the RJA is unconstitutional. He noted that “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.” Justice Yegan urged the California Supreme Court to grant review in this case on its own motion.