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• The use of “biometrics” and the compelled opening of private devices  
• Good faith in the execution of a search warrant absent settled law to the contrary  
• The “foregone conclusion” doctrine  
• Communications search warrants for cellphones  
• Compelled use of one’s finger to unlock a cellphone and Fourth Amendment, Fifth Amendment and due process issues 

A separate statement of probable cause, and a request to use reasonable force if necessary, becomes a part of a search warrant when specifically incorporated by reference. An officer’s good faith, absent settled law to the contrary, allows for the execution of a search warrant even if the warrant is later found to be legally inadequate. The use of a suspect’s fingerprint to unlock his cellphone, the contents of the cellphone being non-testimonial, does not violate the subject’s Fifth Amendment privilege against self-incrimination.  

Also, with law enforcement already knowing what the cellphone contains, the “foregone conclusion doctrine” applies, allowing law enforcement to search and seize the cellphone’s contents. A suspect’s due process rights are not violated by a law enforcement officer forcing a suspect to use his fingerprint to open his cellphone when the force used is minimal and insignificant.

Defendant Alfredo Ramirez, as a high school student and into adulthood, preferred younger girls. When in high school (his age is not mentioned), he dated a 15-year-old girl, listed simply as “M.” The couple got pregnant and then married. M, however, was one of 12 children in her family, with at least three younger sisters who are referred to here as Jane Does #2, #3, and #4. The three Jane Does were between the ages of nine and 13 during the events described here. 

During the years Ramirez and M lived together as husband and wife, he often pressured her into having her three sisters sleep over at their house, intentionally excluding M’s brothers. When they visited, Ramirez would take them to places like a boardwalk, a swimming pool, and an amusement park. All three Jane Does eventually complained to their mother, however, that Ramirez habitually came into their bedroom at night and undid, or completely removed, their clothing, sometimes touching them inappropriately.  

Jane Doe #2 also reported that Ramirez took her to a swimming pool, where she wore a bikini he had bought for her. While at the pool, Ramirez repeatedly threw her in the air, lifting her top each time, and touching her breasts as she came back down in the water.  

In 1996, the three Jane Does reported Ramirez’s illicit acts (described in considerably more detail in the written case decision) to their mother, who filed a complaint with police. For unexplained reasons, the case was never submitted for prosecution. Even so, Ramirez was apparently contacted by police in that he called the girls’ mother that same day, asking her who had reported him. When told that she did, he “desperately pleaded” with her that she needed “to drop everything” because if she didn’t, it would harm his marriage to M and he’d have to move out of town. Because the police dropped the ball, however, Ramirez was left to continue his sexual acts on young girls.  

By August 2018 — 22 years after the above, and after being divorced from M — Ramirez went after another young girl, his cousin’s daughter, called Jane Doe #1, whose age is not mentioned in the decision. Ramirez had a daughter with another woman and Jane Doe #1 slept over at his home with this newest daughter. On August 5, Jane Doe #1 complained to her mother that she did not want to sleep over at Ramirez’s house again because he was “weird.” When asked what she meant, she described how defendant had pulled down her pants and took pictures of her with his cellphone. 

Jane Doe #1’s mother reported this to the Salinas Police Department, providing them with a photograph of her daughter depicting the clothing she had been wearing that night. Detective Gabriel Gonzalez took over the investigation, interviewing all four Jane Does. He then obtained several search warrants for Ramirez’s home, vehicles, cellphone, and iPad. After executing the warrants and arresting Ramirez, the detective obtained what the court referred to as a “communications search warrant” for the contents of Ramirez’s cellphone. Executing this warrant, Detective Gonzalez forced Ramirez to unlock his cellphone with a fingerprint.  

In the phone, the detective found “dozens of images of young girls,” with many “focused on the buttocks of these young girls.” During a second warrant-authorized search of Ramirez’s cellphone, after the cellphone had locked again, Detective Gonzalez found three videos of Jane Doe #1 wearing the same clothing as in the photograph the girl’s mother had provided to the police. These videos each depicted Jane Doe #1 lying in bed with her eyes closed as the camera approached and a hand, coming from behind the camera, pulled down her shorts and touched her genitals. Ramirez was charged in state court with multiple counts of using a minor for sex acts (P.C. § 311.4(c)), possession of matter depicting a minor engaging in sexual conduct (P.C. § 311.11(a)), and lewd or lascivious act upon child (P.C. § 288(a)), plus enhancements for committing the offenses against multiple victims (P.C. §§ 667.61(b)?&?(e)(4), and 1203.066(a)(7).)  

After the trial court denied Ramirez’s motion to suppress, a jury convicted him of all the above, resulting in a prison sentence of 107 years to life. He appealed. 

The Sixth District Court of Appeal affirmed the trial court’s ruling. 

Ramirez’s primary argument on appeal was the constitutionality of compelling him to use his fingerprint to open his cellphone, alleging that to do so constituted (1) an unreasonable warrantless search under the Fourth Amendment, (2) a violation of his privilege against compulsory self-incrimination under the Fifth Amendment, and (3) a violation his Fifth and Fourteenth amendment due process rights.  

Although Detective Gonzalez initially obtained two search warrants relative to Ramirez’s cellphone, one to seize it and one to search it, neither referenced the issue of how police could unlock the phone. However, in an attached “statement of probable cause” that was incorporated by reference by the affidavit, the detective asked for permission to use Ramirez’s fingerprint to open his cell phone, and to use reasonable force if necessary to do so. Detective Gonzalez went with the warrant and the cellphone to the jail?where Ramirez was located. The detective then went through each of defendant’s fingers before finding one, the left thumb, that worked.  

Ramirez cooperated until Detective Gonzalez got to the left thumb, when he tried to pull away, causing the detective to “grab” his left hand and “guide it towards the phone.” This minimal use of force immediately resulted in Ramirez’s compliance, although he told the detective as this was going on: “I’m not giving you permission to do that.” Later, after observing the sexual images of minor sin the phone, the detective attempted to hand the phone off to his department’s computer forensic team. While doing so, the phone locked up again. So, Detective Gonzalez obtained another (the third) warrant and repeated the process.  

As with the earlier search warrant, this warrant was accompanied by a separate statement of probable cause requesting permission to contact Ramirez to obtain his fingerprint to unlock the phone and to use reasonable force if necessary. This time, however, Ramirez only verbally objected, stating that he first wanted his attorney to review the warrant and to be present during its execution. Ramirez did not resist, however, after being told by a second detective, in so many words, that they were going to use his thumb to open his phone whether he liked it or not. Detective Gonzalez then used the left thumb to unlock the phone, but this time without the need of physical force. A subsequent search of the phone’s contents resulted in the discovery of three videos of Jane Doe #1 as described above. Detective Gonzalez also found sexually explicit images of other young girls on the phone, which led to additional charges.  

Based upon this sequence of events, Ramirez raised issues arguing that it was an unreasonable warrantless search, and violated his privilege against compulsory self-incrimination and due process rights. 

Appeal Issues 

Search of the Cellphone and the Fourth Amendment 

The law on this issue is relatively simple. “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” (United States v. Jacobsen?(1984) 466 U.S. 109, 113.) In general, the warrant requirement applies to searches of cellphones because of the “broad array of private information” contained in modern cellphones. (Riley v. California?(2014) 573 U.S. 373, 397.) The constitutionality of forcing a suspect to provide his thumbprint on a cellphone to unlock it depends on whether it was reasonable to do so. “As the text of the?Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’” (People v. Robinson?(2010) 47 Cal.4th 1104, 1119–1120.) “Reasonableness...is measured in objective terms by examining the totality of the circumstances,” and “whether?a particular search meets the reasonableness standard is judged by balancing its intrusion on the individual’s Fourth Amendment?interests against its promotion of legitimate governmental interests.” [Citations.] (Id.?at p. 1120.) 

On appeal, defendant Ramirez raised three Fourth Amendment issues: (1) Whether the compelled use of his fingerprint constituted a search entitled to?Fourth Amendment?protection, (2) whether the “electronic search communications” warrants provided law enforcement with authority to compel him to produce his fingerprint, and (3) whether — if a warrant was required to use his fingerprint to unlock the phone but such a warrant was not obtained — suppression of the evidence from his phone is required under the exclusionary rule.  

Assuming (without specifically deciding) that the compelled use of defendant’s finger to unlock his phone constituted a search within the meaning of the Fourth Amendment, for which there is really little doubt, the Appellate Court held that such a search was authorized by the warrant obtained by Detective Gonzalez. Although none of the three warrants used in this case granted permission to use force, Detective Gonzalez’s statements of probable cause, incorporated by reference into each of the warrants, sought the use of “reasonable force.” Contrary to Ramirez’s argument, there is no authority for the proposition that a magistrate’s authorization to use a suspect’s fingerprint to unlock his cellphone, and to use reasonable force if necessary, must be contained on the face of the warrant itself. Asking for a magistrate’s permission to use such reasonable force may be contained in a separate statement of probable cause so long as it is incorporated by reference. Per the court: “(T)he requirements of incorporation by reference and attachments provide the same protection provided by an adequate description on the face of the warrant: clear notice to the executing officer and those subject to search of the authorized scope of the search?at the time the warrant is executed.” (Italics in the original; citing People v. MacAvoy?(1984) 162 Cal.App.3rd 746, 755-756.) Thus, the magistrate, upon approving the warrants, was also approving the use of Ramirez’s finger to unlock the phone as well as the use of reasonable force if necessary to do so.  

The court further held that even if this constituted a Fourth Amendment violation, there is nothing in the settled law that would have told the parties that Detective Gonzalez was acting illegally. Thus, the “good faith” exception to the exclusionary rule also applied. As summarized by the court: “A reasonable officer in Gonzalez’s position would have understood that the warrants authorized him to obtain defendant’s fingerprint to unlock the phone, and to use reasonable force to compel defendant to produce his fingerprint.” With that, there was no Fourth Amendment violation. 

Use of a Defendant’s Finger to Unlock a Cellphone and the Fifth Amendment Privilege Against Compulsory Self-Incrimination 

Ramirez argued that making him use his finger to unlock his cellphone violated his Fifth Amendment privilege against self-incrimination (as well as the California Constitution’s equivalent found in article I, section 15). 

For this argument to fly, a defendant must show that using his fingerprint to unlock his cellphone was “compelled, incriminating, and testimonial.” The Attorney General argued on appeal that making him use his fingerprint to unlock his phone was not only “not tantamount to compelled testimony,” but that it also “did not violate?defendant’s privilege against compulsory self-incrimination because this act?produced nontestimonial evidence under the “foregone conclusion doctrine.” The U.S. Constitution’s Fifth Amendment prohibits, among other things, the state from “compel(ling) in any criminal case” a person from “be(ing) a witness against himself.” “Accordingly, the (Fifth) (A)mendment prohibits the direct or derivative?criminal use?against an individual of ‘testimonial’ communications of an incriminatory nature, obtained from the person under official compulsion. [Citations.]” (People v. Low?(2010) 49 Cal.4th 372, 390.)  

However, “[t]o qualify for the?Fifth Amendment?privilege, a communication must be testimonial, incriminating, and compelled. [Citation.]” (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty.?(2004) 542 U.S. 177, 189.) While the information contained in defendant’s cellphone was certainly obtained by being “compelled,” as well as it being “incriminating,” it was held not to be “testimonial,” as this term is defined by the case law. “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. (Doe v. United States “Thus, a suspect may be compelled to furnish a blood sample, a handwriting exemplar, or a voice exemplar, to stand in a lineup, and to wear particular clothing in that lineup.”  (Citations omitted)  It is only when the accused is compelled to testify against himself (i.e., provide “evidence of a testimonial or communicative nature”) that the Fifth Amendment self-incrimination privilege applies.  Here, the Court likened the use of defendant’s thumbprint to being required to provide a blood sample or a handwriting exemplar, etc., as listed above, as opposed to obtaining information from his mind.  Requiring defendant to supply his thumbprint, therefore, was not testimonial and thus not protected by the Fifth Amendment.  Related to this is what is something called the “foregone conclusion doctrine.”  Under this theory, the prosecution must establish “with reasonable particularity”?that it knew ahead of time of the existence of the compelled evidence.  “Where the location, existence, and authenticity of the purported evidence is known with reasonable particularity, the contents of the individual’s mind are not used against him [or her], and therefore no?Fifth Amendment protection is available.”  (In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011?(11th Cir. 2012) 670 F.3rd 1335, 1344.)  The Ninth Circuit Court of Appeals has held that the foregone conclusion doctrine “allows for circumvention of the self-incrimination privilege if the government already has the information it is seeking to compel. [Citation.]” (United States v. Oriho?(9th Cir. 2020) 969 F.3d 917, 927.)  In this case, the Court agreed with the trial court that Detective Gonzalez already knew of the photographs and/or videos that were contained in defendant’s cellphone, triggering the foregone conclusion doctrine.  Per the Court: “The existence, location and authenticity of [the] requested materials in this case were foregone conclusions.” For these reasons, the Court held that the detective did not violate the Fifth Amendment self-incrimination privilege by requiring defendant to use his thumbprint to open up his phone.   “Thus, a suspect may be compelled to furnish a blood sample, a handwriting exemplar, or a voice exemplar, to stand in a lineup, and to wear particular clothing in that lineup.” (Citations omitted) It is only when the accused is compelled to testify against himself (i.e., provide “evidence of a testimonial or communicative nature”) that the Fifth Amendment self-incrimination privilege applies.  

Here, the court likened the use of Ramirez’s thumbprint to being required to provide a blood sample or a handwriting exemplar, as opposed to obtaining information from his mind. Requiring him to supply his thumbprint, therefore, was not testimonial and thus not protected by the Fifth Amendment.  

Related to this is the “foregone conclusion doctrine.” Under this theory, the prosecution must establish “with reasonable particularity”?that it knew ahead of time of the existence of the compelled evidence. “Where the location, existence, and authenticity of the purported evidence is known with reasonable particularity, the contents of the individual’s mind are not used against him [or her], and therefore no?Fifth Amendment protection is available.” (In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011?(11th Cir. 2012) 670 F.3rd 1335, 1344.) The Ninth Circuit Court of Appeals has held that the foregone conclusion doctrine “allows for circumvention of the self-incrimination privilege if the government already has the information it is seeking to compel. [Citation.]” (United States v. Oriho?(9th Cir. 2020) 969 F.3d 917, 927.)  

In this case, the appeals court agreed with the trial court that Detective Gonzalez already knew of the photographs and/or videos in the cellphone, triggering the foregone conclusion doctrine. Per the court: “The existence, location and authenticity of [the] requested materials in this case were foregone conclusions.” For these reasons, the court held that the detective did not violate the Fifth Amendment self-incrimination privilege by requiring Ramirez to use his thumbprint to open his phone. 

The Forced Use of a Defendant’s Finger to Unlock a Cellphone as Fifth and Fourteenth Amendment Due Process Violations 

Ramirez’s last argument was that the compelled use of his fingerprint to unlock the phone violated his due process rights under the?Fifth?and?Fourteenth Amendments to the United States Constitution (and under?article I, section 7 of the California Constitution). Specifically, he submitted that his due process rights were violated by the detective grabbing his hand and forcing his finger onto his phone, and then later by ignoring his request to have his attorney present as they threatened that it was going to happen “whether (he) like(d) it or not.” This, Ramirez argued, violated his rights in each instance because his “will was overborne.”  

Indeed, it is a due process violation for law enforcement to induce a suspect’s cooperation through threats and excessive force. The court, however, found no due process violation under the circumstances of this case. As for the force used to place Ramirez’s thumb on his cellphone, the court found it to be minimal, and reasonable. As noted by the court: The detectives “did not threaten defendant’s health or safety...they did not use deception and...any affront to defendant’s privacy was minimal when compared (to) other permissible uses of force such as bodily intrusion searches.” As for the second detective’s comment that it was going to happen whether he liked it or not, the court made no mention of this, apparently considering it an insignificant part of the overall reasonable use of force that was used. 

Conclusion 

Ramirez raised other issues dealing with the admission of expert testimony, instructional error, fines and fees imposed, and the possible incompetence of his attorney for not having contested each of these potential issues, all of which were rejected by the court. Thus, his conviction and sentence were affirmed. 

This case covered so many constitutional issues at once (Fourth, Fifth, Sixth and Fourteenth Amendments), which is one reason it’s 44 pages, and why you may have to read this brief several times to fully understand the ruling.  

It’s also important that this is a case of first impression, at least in California. I have some older cases from other jurisdictions that have gone both ways on the issue of the use of “biometrics” (i.e., the use of one’s finger, facial, or iris recognition) and the compelled opening of otherwise private devices.  

This case follows the trend on this issue, generally ruling that privacy rights don’t overcome a law enforcement officer’s commands to open those devices via the simple use of a fingerprint, at least when there’s probable cause supporting the officer’s right to do so. Interestingly, while I was briefing this case, the Ninth Circuit Court of Appeal reached similar conclusions in a case involving a California Highway Patrol officer who forced a suspect to unlock his cellphone via a thumbprint. In United States v. Payne (9th Cir. Apr. 17, 2024) F.4th [2024 U.S.App. LEXIS 9256], the Ninth Circuit held, as did the Ramirez court here, that the compelled use of a biometric (thumbprint) to unlock an electronic device was not “testimonial” because it required no cognitive exertion, placing it in the same category as blood draws in DUI cases and fingerprints taken during the booking process.  

Accordingly, a Fifth Amendment self-incrimination argument by the defendant did not fly. Payne had one more interesting twist, however. The defendant was only being temporarily detained during a typical traffic stop when his phone was searched. However, since he was on parole, the court held that requiring him to unlock his cellphone was no more than a lawful warrantless parole search. Payne, as a parolee, had waived his Fourth Amendment search and seizure rights. I will brief the entire Payne case in a future article. 

• Racial Justice Act, Penal Code §745 
• Explicit and implicit racial biases in the courtroom 

California’s Racial Justice Act, as contained in Penal Code §745, prohibits investigative practices as well as the use of evidence or trial tactics exhibiting explicit and implicit racial biases in a criminal investigation or criminal trial. 

Defendant Akeem Simmons, in Philadelphia, and nightclub disc jockey Danny Graves, in Los Angeles, were friends. Graves was also Simmons’ supplier of marijuana in late 2017 to early 2018. Simmons is a Black man who was a barber in Philadelphia, selling marijuana on the side to supplement his income. He frequently traveled to Los Angeles to socialize with Graves, and to buy drugs. When in L.A., Simmons and Graves would hook up with friends, meeting and dating women.  

Simmons gave Graves $10,000 on one such visit for the purchase of marijuana. Graves passed this money onto his supplier who failed to deliver, interrupting the supply chain. Although Graves was eventually able to secure 22 pounds of marijuana for Simmons, this didn’t cover the amount of money that had been lost. Simmons was not happy. In March and May of 2018, Simmons unsuccessfully tried to kill Graves, shooting at him but missing the first time, and gravely wounding him the second time. Charged in state court with two counts of attempted murder and related charges, Simmons was convicted of the first attempt but acquitted of the second despite Graves having identified defendant as the shooter in both, and with the same gun used in both. Simmons testified in his own defense at trial, denying being the shooter in either instance. 

During the trial, in what the appellate court described as a “lengthy and disjointed cross-examination,” the prosecutor made a big thing out of Simmons’ relationships with women, getting him to acknowledge that he “always (tries) to be charming.” The prosecutor also commented several times that Simmons is a “light-skinned” Black man, asking him to compare his skin tone to that of other people he mentioned in his testimony. Presumably, this was for the purpose of supporting identification evidence of him as the shooter in both cases. 

Simmons did not deny that he could easily be mistaken as Caucasian or Hispanic, and that “yes,” the women did in fact love him. During the prosecutor’s closing and rebuttal arguments, she made repeated references to Simmons’ race, his good looks, his “charming” nature, and the fact that he was so light-skinned that he could have been mistaken for a White or Hispanic man. 

Convicted of the March attempted murder, Simmons’ sentencing was delayed due to COVID until January 4, 2021. This happened to be three days after the effective date of the California Legislature-enacted Racial Justice Act, Penal Code §745. At sentencing, neither party mentioned this new legislation. Sentenced to life in prison plus a 20-year enhancement?for the firearm use, and a concurrent term of 27 months for attempting to evade police when originally arrested, Simmons appealed. 

The Second District Court of Appeal (Div. 6), in a two-to-one decision, reversed.  

Simmons’ primary contention on appeal, in fact the only one discussed, was the applicability of the just-enacted Racial Justice Act (RJA), found in Penal Code §745. Specifically, Simmons argued that the prosecutor violated the?RJA?by repeatedly referring to his skin tone, suggesting that he could be mistaken as being Hispanic or “even White,” and arguing, or at least suggesting, that he was deceptive and not a credible witness because he had an “ambiguous ethnic presentation.” In addition, Simmons submitted that the prosecutor’s many questions during cross-examination, as well as her comments about his relationships with women and his “charming” personality, also had a racist tone. 

The People conceded that the prosecutor’s comments regarding Simmons’ ambiguous ethnic presentation violated the RJA, but contended that the comments regarding his relationships with women were proper commentary on his credibility. The issue arose following the legislative enactment of AB 2542, The California Racial Justice Act of 2020, which became effective as of Jan. 1, 2021. By its terms, (i.e., subdivision (j)), this section applied to all cases for which judgment had not yet been entered, which included Simmons’ case. (Note: P.C. §745 was amended subsequent to this case by AB 256, applicable to all cases not final as of Jan. 1, 2023, through Jan. 1, 2026, depending on the nature of the sentencing that applied. See new subdivision (j)(1)-(5).) The RJA sought to deal with discrimination in California’s criminal justice trial system, whether “explicit” (intentional) or “implicit” (unintentional). The court first noted the legislative findings relative to racial biases in the courtroom and elsewhere: 

 “‘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.’...The legislature found that, 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.’...In its view, current law ‘is insufficient to address discrimination in our justice system...Even when racism clearly infects a criminal proceeding, under current legal precedent, proof of purposeful discrimination is often required, but nearly impossible to establish.’...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.’...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.’” (Pgs. 332-333.) 

Having identified the problem, the court then noted that the RJA’s intent is “to eliminate racial bias from California’s criminal justice system,” noting 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.” The court further pointed out that it is not the court’s intent to punish those who engage in explicit or implicit racial bias, “but rather to remedy the harm to the defendant’s case and to the integrity of the judicial system.” Further, “(i)t is the intent of the legislature to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.” The court also noted that where alleged to have occurred, it is the defendant’s burden to prove by a preponderance of the evidence (subd. (c)(2)) at least one 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; or: 

     (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.” (Subd. (a)           (1) and (2).) 

Sanctions also may be imposed if the defendant can prove by a preponderance of the evidence that he or she was convicted of a more serious offense or received a stiffer penalty due to their race. (Subd. (a)(3) and (4).)  

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.” The court further noted that “(e)vidence 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.”  

Provisions are made in the statute for an evidentiary hearing should the defendant make a prima facie showing of a violation. (Subd. (c).) Depending on the nature and the timing of the violation, various remedies are available to the court: declaring a mistrial, discharging the jury and starting over, or outright dismissal of the case, and everything in between. (See subd. (e).)  

The parties to this appeal agreed that the prosecutor violated the RJA in her rebuttal argument when she said to the jury: 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.” This constitutes a violation of the prohibition described in P.C. §745(a)(2). It’s a violation, according to the court, because her statements equate the defendant’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.  

As opined by the court: “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.” Simmons’ argument on appeal was that he was “denied the effective assistance of counsel” because his attorney didn’t recognize the prosecutor’s argument to the jury as a violation of the three-day-old P.C. §745, and object to it.  

As dictated by the penalty provisions contained in P.C. §745 at subd. (e), Simmons was entitled at the very least to a mistrial and/or the empaneling of a new jury and a new trial. “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 Constitution of the State of California.’” (Italics in original.)  

As such, defense counsel’s ineffectiveness was automatically material, requiring that the case be reversed and remanded to the trial court for the purpose of allowing the court “to exercise its (P.C. § 745, subd. (e)) discretion to select which of the enumerated remedies it would impose.”  

I can’t fault the prosecutor here, or anyone else. No one involved in this case — the prosecutor, the defense attorney, nor the trial court judge — predicted that the very recently effective RJA would be interpreted so strictly. (Note: They would have at least been aware of P.C. §745’s existence had they each subscribed to LegalUpdates.com and read my “New and Amended Statutes Update” that was published on January 1, 2021).  

The dissenting justice did not disagree with the majority’s finding of bias under P.C. §745, by the way. His argument is that it is the courts —and not the legislature — that ultimately determine whether a miscarriage of justice results from a RJA violation, and thus whether sanctions are appropriate, an issue both sides suggest needs to be resolved by the California Supreme Court.  

Also, reading this case and the legislature’s (and the court’s) findings that racial biases are rampant throughout California’s criminal justice system might piss you off. (It did me.) But we have a professional obligation to set aside any disagreement we might have with this conclusion and recognize that racial biases — explicit and implicit — do exist in our criminal justice system, at least to some extent, and deal with it. The recent passing of O.J. Simpson, with all the racial overtones emanating from both sides of the courtroom in his 1994-95 double-murder trial, should remind us all about this indisputable fact. 

This case and other RJA court decisions [Finley v. Superior Court (2023) 95 Cal.App.5th 12, Bonds v. Superior Court (2024) 99 Cal.App.5th 821, People v. Lashon (2024) 98 Cal.App.5th 804, Mosby vs. Superior Court (2024) 99 Cal.App.5th 106, People v. Coleman (2024) 98 Cal.App.5th 709] should be read very carefully and considered when, as a cop, you are making arrests and doing criminal investigations; as a lawyer, when you are prosecuting or defending criminal cases involving minorities; and, as a judge, when you are overseeing such cases.  

If you get nothing else from this case, you need to note that it takes very little to violate the RJA, and that the consequences to your case are extensive.