California Racial Justice Act Claim in Appellate Court

In May of 2021, a jury in Contra Costa Superior Court convicted Ms. Menique Lashon of first-degree murder, as well as second-degree murder, and found true special circumstance allegations of multiple murders. The judge then sentenced her to life without the possibility of parole.

On appeal to the First Appellate District Court of Appeal, Ms. Lashon alleged that the judgment was a result of the trial judge’s implicit racial bias against her, as well as her trial counsel, in violation of the California Racial Justice Act, codified at Penal Code § 745.

She argued for the first time about this bias in her opening brief to the appellate court and asked the First Appellate District Court to remand the matter to the trial court for an evidentiary hearing.

The First Appellate District denied this claim, finding that Ms. Lashon forfeited her CRJA claim by not filing such a claim in the trial court before judgement was entered, so the appellate court affirmed the judgment.

The First Appellate District explained that the CRJA was enacted over four months prior to the start of Ms. Lashon’s trial and it was made applicable to all cases then pending in the trial courts.

Penal Code § 745 provides “[t]he 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.” Penal Code § 745(a).

A violation of the CRJA, as relevant to Ms. Lashon’s case, takes place when “[d]uring the defendant’s trial, in court and during the proceedings,” a trial judge “exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.”

The CRJA sets forth the procedures for seeking relief during the various stages of a criminal proceeding. “A defendant may file a motion in the trial court or, if judgment has been imposed, may filed 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).” Penal Code § 745(b). The CRJA also sets forth remedies for successful prejudgment and post judgment claims in Penal Code § 745(e)(1) and (e)(2).

However, because no CRJA motion premised on Ms. Lashon’s claim of implicit bias by the trial court judge was filed in the trial court during either the trial or sentencing phases, the First Appellate District deemed her CRJA claim forfeited for purposes of direct appeal. See e.g., People v. Elliot (2012) 53 Cal. 4th 535, 572 (defendant forfeited claim that trial court exhibited racial bias during jury selection process by failing to raise the issue at trial).

Ms. Lashon asserted that the general forfeiture rule should not apply because her claim involves a “substantial right” or “an important issue of constitutional law.” In re Sheena K. (2007) 40 Cal. 4th 875. However, the First Appellate District found this assertion and reliance on Sheena K. misplaced because in Sheena K., the California Supreme Court held a juvenile could present a constitutional challenge to a probation condition on direct appeal because it presented “a pure question of law, easily remediable on appeal by modification of the condition.” Id. at 888.

However, the Sheena K. court did not conclude “that all constitutional defects in conditions of probation may be raised for the first time on appeal since there may be circumstances that do not present “pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.” In those circumstances, “[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.” Id. at 889.

Simply put, the First Appellate District found, Ms. Lashon’s claim for relief did not fall under the In re Sheena K. exception because it does not present a pure question of law that can be resolved without consideration as to what occurred during the trial and sentencing proceedings.

Lashon also argued that the forfeiture rule should not apply to her because there were no obvious signs of racial bias by the trial judge “until the African American defense attorney corrected the judge on his misassumption that the attorney had not followed the correct procedure on a subpoena duces tecum for medical records of a victim.” “However, once this judge felt challenged by this attorney of color, both she and her client became targets of increasing hostility. This behavior seems most likely explained by the implicit bias held by the judge that was unleashed only after she felt her authority questioned.”

The First Appellate District found this explanation unavailing because Ms. Lashon did not argue that she could not have objected to encourage the trial court to lay a record at this point. She also does not explain why she did not file a CRJA motion at that point.

Therefore, her appeal was denied and the judgment was affirmed.

Our hunch is that Ms. Lashon will now file a petition for a writ of habeas corpus alleging a CRJA violation, as the CRJA specifies that such a claim may be asserted in a habeas proceeding. Such a claim, however, may meet the same fate, as no objection or claim of racial bias was asserted in the trial court.