By Robert Phillips

Deputy District Attorney (ret.)

Legal Concepts and Case Citation

California’s Racial Justice Act (RJA), Penal Code §745

The use of racially discriminatory language in a prosecutor’s argument to a jury

People v. Stubblefield (Dec. 26, 2024), Cal.App.5th [2024 Cal.App. LEXIS 834]

Rule: California’s Racial Justice Act (RJA), Penal Code §745, prohibits the use of racially discriminatory language in a prosecutor’s argument to a jury.

Facts: Defendant Dana William Stubblefield is a former professional football player in the National Football League. He was also, at the time of this alleged crime, a 44-year-old, 6-foot 3-inch tall, 340-pound Black man, living with his wife and two children in his Morgan Hill, California, home. Jane Doe is an intellectually disabled, 31-year-old, 5-foot 3inch tall, 125-pound woman, living with her mother in nearby Hollister. Doe’s scores in IQ tests were in the bottom two percentile and she suffered from a language disorder that hampered her ability to speak and testify clearly.

Stubblefield needed a baby-sitter. Jane Doe needed a job. In April 2015, Stubblefield contacted Doe through a profile made on SitterCity.com, a web site for hiring childcare workers. After an exchange of texts, they agreed that they would meet at Stubblefield’s home and discuss her possible employment. Given the distance between Hollister and Morgan Hill, Stubblefield offered to pay her for her time to drive to Morgan Hill for the interview. Doe drove to Stubblefield’s home on the afternoon of April 9, arriving at 2:47 p.m., stayed for a 23-minute interview and left. At 3:10 p.m., Stubblefield texted her that he wanted to pay her for her drive time, as previously promised. So, Doe drove back to his house, arriving at 3:45 p.m.

According to her later testimony, when she arrived, Stubblefield immediately locked the door behind her. Then, over her protests, he picked her up and took her into a dark room that contained a bed and a dresser. Doe told Stubblefield, “No,” and “I don’t want no money,” while insisting that she wanted to leave. Stubblefield, however, wouldn’t let her go and raped her. She testified.

During the incident, Doe told Stubblefield that she did not want to have sex, but she didn’t physically resist or scream because “he had big muscles.” At one point, she said, Stubblefield pointed a gun at her and threatened to kill her. She said that after the rape, which consisted of several sex acts, including “shov(ing) the gun into her vagina”, Stubblefield let her leave. Doe drove directly to the police station and reported she was raped. A SART examination later showed that although there was no semen in her vagina, Stubblefield’s DNA was on her body. Multiple lacerations and erythema — redness resulting from burst capillaries — were also found in Doe’s internal vaginal areas. Stubblefield argued Doe consented to sex in exchange for money.

In a follow-up investigation, Doe was unable to pick Stubblefield out of a photographic lineup. Although Stubblefield later denied that he owned any firearms, a law enforcement firearms database showed that firearms had been registered to him in the past. Because Doe was unable to identify Stubblefield in a lineup, however, the decision was made not to seek a search warrant for his home.

Despite the obvious issues in this case, Stubblefield was charged in state court with five rape-related offenses along with various firearms-use allegations. After trial, closing arguments began on July 21, 2020 — eight weeks after a white Minneapolis police officer murdered George Floyd, a Black man, setting off weeks of massive protests and nationwide social unrest. In his closing argument, the prosecutor asserted that the police made the decision not to search Stubblefield’s house partly because he was a famous, Black man. Specifically, the prosecutor sought to explain the decision not to search defendant’s house as follows: “Now, there’s no search of the defendant’s house. What are some reasons why? Well, first of all, [Doe] hasn’t identified [Stubblefield]. Second of all, they are aware we’re dealing with somebody who was — if he’s not famous still, was famous at one time. And third, he’s African American.”

The prosecutor then suggested that a search would have opened “a storm of controversy,” and added, “Can you imagine in Morgan Hill when they search an African American —.” At this point, the defense attorney objected. The trial court judge sustained the objection. However, the judge gave no admonishments or instructions with respect to this part of the prosecutor’s arguments. Stubblefield was convicted and sentenced to 15 years to life in prison. He appealed.

Held: The Sixth District Court of Appeal reversed the conviction.

In 2020, California’s Legislature passed the so-called Racial Justice Act (AB 2542). The stated purpose of the act was “to eliminate racial bias from California’s criminal justice system,” and “to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.” (Stats. 2020, ch. 317, §2, subd. (i).) “To that end, the RJA prohibits the state from seeking or obtaining a criminal conviction, or seeking, obtaining, or imposing a sentence, on the basis of race, ethnicity, or national origin.” (People v. Wilson (2024) 16 Cal.5th 844, 945–946.)

The RJA added section 745 to the Penal Code effective January 1, 2021, and has since been amended twice. Subdivision (a) of P.C. §745 sets forth four categories of conduct, any of which if proven by a preponderance of the evidence, establish a violation of the RJA. Stubblefield’s case concerns the use of “racially discriminatory language” in violation of subdivision (a)(2) of P.C. §745. Specifically, a violation of the RJA has occurred under this subdivision if “[d]uring 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, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.”

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 coded language...or language that references the defendant’s physical appearance, culture, ethnicity, or national origin.” (P.C. § 745(h)(4))

Effective January 1, 2023, the RJA was made retroactive “[t]o all cases in which judgment is not final.” (P.C. § 745(j)(1).) Effective January 1, 2024, the RJA was amended to provide that post-judgment RJA claims based on the trial record may be raised on direct appeal from the conviction or sentence (including to cases with judgments entered before January 1, 2021).” This includes Stubblefield’s case.

The issue here was whether the prosecutor’s remarks to the jury concerning the potential repercussions of searching a Black man’s house violated the RJA. Interestingly enough, it was defense counsel’s argument to the jury concerning the lack of evidence that defendant had any guns at his house, contrary to the Doe’s assertions, that triggered the prosecutor’s perceived need to explain why the house was not searched for a gun. But why the prosecutor said what he said is irrelevant. After taking judicial notice of the facts and circumstances behind the Floyd killing and its aftermath, the appellate court, in a long esoteric discussion, found that the RJA did in fact apply to the prosecutor’s comments, “appealing to racial biases and explicitly using Stubblefield’s race against him...implying that if jurors did not convict him, it would amount to letting him go free because he was Black.”

Specifically, it was noted by the court that “(t)he prosecutor explicitly mentioned Stubblefield’s race twice. The prosecutor began describing ‘some reasons why’ there was no search of Stubblefield’s house, starting with the fact that Doe had not identified Stubblefield. The prosecutor asserted a second reason — that police were aware Stubblefield was famous. The prosecutor then explicitly raised Stubblefield’s race: ‘[T]hird, he’s African American.’ (Italics added.)

Next, the prosecutor asserted an explanation for why these facts would matter to the police: “So if you do a search on somebody’s house with no identification, no real idea of the victim or what you’re dealing with, that’s just going to open up a storm of controversy.” (Italics added.) The prosecutor immediately followed this by asking the jury, “Can you imagine in Morgan Hill when they search an African American —,” before the prosecutor was cut off by an objection.

This record, as noted by the court, “clearly establishes several elements required for a violation of the RJA under section 745, subdivision (a)(2). The prosecutor was ‘an attorney in the case,’ and he made the statements in closing arguments, ‘[d]uring the defendant’s trial, in court and during the proceedings.’ Furthermore, the prosecutor was not ‘relating language used by another that is relevant to the case.’ (Ibid.) Nor can the statements be characterized as ‘giving a racially neutral and unbiased physical description of the suspect.’”

The court continued on to find the statement that Stubblefield’s race was a factor in law enforcement’s decision-making, “to an objective observer, explicitly or implicitly appeals to racial bias,” making it “racially discriminatory language” within the meaning of section Penal Code § 745(a)(2) and (h)(4). The attorney general argued that any RJA violations were “harmless beyond a reasonable doubt.” The court found, however, that it is irrelevant whether or not the error was harmless. Pursuant to P.C. §745(a), if a violation is found, the court “shall impose” one of several enumerated remedies specific to the violation, “foreclos(ing) any traditional case-specific harmless error analysis.” In this case, the applicable remedy was to void the conviction and sentence. (See P.C. § 745(e)(2)(A)).

Stubblefield remained in prison pending an early February 2025 hearing, during which his attorneys will ask a judge to release him. Prosecutors have several options, including asking the court to stay their decision so they can appeal to the state’s Supreme Court, or refile charges.

Note: This case is obviously limited to an individual prosecutor’s comments to a jury to the effect that the defendant’s race might have played a part in decisions that were made by the police in deciding whether to search the suspect’s home, finding these comments alone to be a violation of the Racial Justice Act.

But the Act is not limited to this scenario by any means. It also extends to the possible biases of police officers in the field, conceivably affecting the decisions an officer may make. For instance, in Bonds v. Superior Court (2024) 99 Cal.App.5th 821, the concern was whether the defendant’s detention was because of his race, noting that an officer’s racial biases can be unconscious and implied as well as conscious and express.

Subdivision (a)(1) of P.C. §745 specifically lists the potential biases that are relevant to this act as extending to one’s “race, ethnicity, or national origin.” Subdivision (a)(1) also talks about the biases of “(t)he judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror,” that may reflect a “bias or animus towards the defendant...” Racial biases by any one of these listed participants in the criminal justice system is sufficient to bring about sanctions, up to and including reversal of a conviction (P.C. § 745(e)).

The rest of subdivision (a) deals with biases that might precipitate the use of racially discriminatory language, biases that might have caused a defendant to be charged or convicted of a more serious offense, or biases that might have led to a longer or more severe sentence.

So, expect this issue might come up in almost scenarios involving a defendant of a minority “race, ethnicity, or national origin.” Also, you have to recognize that these biases may not be explicit. It must be recognized that we all as human beings are subject to having “implicit biases” as well. “Implicit bias,” also known as implicit prejudice or implicit attitude, is defined as “a negative attitude, of which one is not consciously aware, against a specific social group.” (Per the American Psychological Association.)

In an attempt to get a handle on this issue, law enforcement is now required to “annually report to the attorney general data on all stops conducted by that agency’s peace officers for the preceding calendar year.” (Govt. Code §12525.5(a)(1)) These reports are to include, along with a pile of other information: “(t)he perceived race or ethnicity, gender, and approximate age of the person stopped” per (subd. (b)(6)).

This is the new reality in police work. And it’s likely to be around for a long time. So, get used to it.