Opinion
S283717
05-01-2024
PEOPLE v. COLEMAN (DEMETRIUS)
A165198 First Appellate District, Div. 5.
Petition for review denied
The petition for review is denied.
See Concurring Statement
Evans, Justice
I agree with my colleagues that this is not an appropriate case in which to grant review. I write separately, however, to discuss the proper inquiry under the California Racial Justice Act of 2020 (RJA) (Stats. 2020, ch. 317) when a defendant alleges discrimination by their attorney.
Defendant Demetrius Coleman testified in his own defense at his trial for special circumstance murder in 2020. Following his testimony, Coleman brought a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) in the trial court to replace his appointed counsel. Coleman, a Black man, claimed his counsel discriminated against him by advising him to "speak [E]bonics," "sound ghetto," and "talk hood" when he testified. In response, trial counsel did not deny Coleman's claims but explained she was advising him to testify authentically and" '[s]peak how you speak.'" On December 30, 2020, the trial court denied the Marsden motion, finding Coleman failed to demonstrate his counsel rendered ineffective assistance. The court appointed new counsel to explore a potential motion for a new trial based on another ground of ineffective assistance. After its ruling, Coleman asked the trial court if it was acceptable for counsel to advise their client "to sound ghetto right before he gets on the stand and testifies for his life." The trial court responded: "I can understand an attorney telling someone . . . [¶] . . . [¶] to be yourself." The court stated new counsel could further explore that issue "whether or not which words were used." Ultimately, Coleman's new counsel did not raise any claim relating to counsel's advisements regarding Coleman's testimony. At sentencing, in April 2022, Coleman again told the trial court that his prior counsel had advised him "to speak ebonese [sic], sound hood . . . and sound like a thug." The trial court sentenced Coleman to life without the possibility of parole, along with additional determinate terms.
The Legislature enacted the RJA "to eliminate racial bias from California's criminal justice system." (Stats. 2020, ch. 317, § 2(i).) The Legislature pronounced 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." (Ibid.) As relevant here, an RJA violation occurs when specific actors, including counsel, exhibit racial bias - explicit or implicit. (Pen. Code, § 745, subd. (a)(1) & (2).) "Implicit bias, although often unintentional and unconscious, may inject racism and unfairness into proceedings similar to intentional bias." (Stats. 2020, ch. 317, § 2(i).) When an RJA violation occurs, the court shall impose an appropriate remedy. (Pen. Code, § 745, subd. (e).)
In rejecting his RJA claim, the Court of Appeal focused on Coleman's testimony and concluded "[n]othing about defendant's use of [slang] terms or the manner of his overall testimony suggests that his attorney exhibited racial bias or animus toward him." (People v. Coleman (2024) 98 Cal.App.5th 709, 722 (Coleman).) The Court of Appeal also opined that counsel did not render ineffective assistance of counsel - which requires a showing of prejudice - because she had a tactical reason for advising Coleman to not change the way in which he spoke. (Ibid.) The Court of Appeal's analysis suggests that establishing an RJA violation hinges on whether a defendant can demonstrate the alleged bias constituted ineffective assistance of counsel or otherwise had a tangible or prejudicial impact on the proceeding. Given the need for guidance, I write separately to underscore the proper inquiry in determining whether an RJA violation occurred when a defendant alleges bias by their attorney.
The RJA requires a court to determine whether there was an exhibition of racial bias or animus against the defendant. In this case, the question is whether counsel's advisements to Coleman regarding the manner in which he should testify violate the RJA. Coleman argues the record establishes his counsel advised him to "sound ghetto," "sound hood," and "sound like a thug," and such advisements reflect racial bias, in violation of the RJA. The Court of Appeal emphasized the record "reflects that the trial court credited defense counsel's statement that she told [Coleman] to 'be yourself.'" (Coleman, supra, 98 Cal.App.5th at p. 722.) It further opined: "Even if we assume that in preparation for defendant's testimony defendant or defense counsel used slang terms regarding defendant's manner of speaking, when considered in the context of giving advice to testify authentically, we find no violation of the RJA." (Ibid.)
Advisements to "sound ghetto," "sound hood," and "sound like a thug" are wholly different from general advice that one should testify authentically. These specific terms have deeply racialized and pejorative meanings that are widely known. They are laden with negative stereotypes including associations with heightened criminality, violence, and reduced humanity. In my view, these particular advisements, standing alone, would be sufficient to infer Coleman's counsel exhibited at least implicit bias. However, it is unclear from the record whether counsel advised Coleman in this exact manner. As the Court of Appeal noted, Coleman did not move for a stay and remand to the trial court for further proceedings. (See Pen. Code, § 745, subd. (b).) Had he done so, the trial court could have conducted an evidentiary hearing to determine if counsel specifically advised Coleman to "sound ghetto," "sound hood," and "sound like a thug." (See Pen. Code, § 745, subd. (c).) An evidentiary hearing would have also presented Coleman with an opportunity to introduce any additional evidence, such as social science research or expert testimony, to demonstrate such statements evince racial bias. (See Pen. Code, § 745, subd. (c)(2).)
Coleman filed a petition for a writ of habeas corpus - which provides another avenue for obtaining an evidentiary hearing relating to an RJA claim (see Pen. Code, § 745, subd. (b)) - in the Court of Appeal. The Court of Appeal summarily denied his habeas petition. Coleman did not file a petition for review before this court challenging that summary denial.
In my view, the trial court should have conducted further inquiry into Coleman's allegations. While the RJA technically became effective two days after the trial court's Marsden ruling, the court could have asked counsel whether she made the specific statements Coleman alleged when considering the Marsden motion or afterwards when Coleman asked the court whether the alleged comments by counsel were acceptable. Had Coleman made his Marsden motion two days later, when the RJA became effective, it would have been appropriate - perhaps even required - for the court to construe his motion and argument as raising an RJA claim. (See Pen. Code, § 745, subd. (b) ["a defendant may file a motion . . . alleging a violation of subdivision (a)" (italics added)].) And when Coleman once again brought up the issue at his sentencing hearing in 2022, the trial court certainly could have inquired further into his allegations. The court's failure to do so appears to offend the RJA's demand that courts be scrupulous in examining concerns like the ones Coleman repeatedly raised here. The RJA was enacted because "[e]ven though racial bias is widely acknowledged as intolerable in our criminal justice system, it nevertheless persists because courts generally only address racial bias in its most extreme and blatant forms." (Stats. 2020, ch. 317, § 2(c).) In enacting the RJA, the Legislature acknowledged "all persons possess implicit biases [citation], . . . these biases impact the criminal justice system [citation], . . . [and] negative implicit biases tend to disfavor people of color." (Stats. 2020, ch. 317, § 2(g); see also id., § 2(i).) The RJA contemplates the possibility of violations from varied actors in the legal system; neither defense counsel nor the courts are exempt. (See, e.g., Pen. Code, § 745, subd. (a)(1)-(2).) Whether or not Coleman's defense was prejudiced by counsel's guidance, public confidence in our legal system depends on identifying and eliminating racial bias, however subtle, wherever it appears.
In light of the underdeveloped record, I do not vote to grant review. Nevertheless, the question remains whether Coleman could have established an RJA violation had the trial court conducted a more probing inquiry into his claims. If Coleman's counsel actually advised him in the manner he alleges, it appears the answer is yes as such advisements reflect racial bias that the RJA was designed to uproot, to ensure racial discrimination - in all its forms - is eradicated from our criminal justice system.
I Concur:
LIU, J.