Opinion
D081490
11-20-2024
The PEOPLE, Plaintiff and Respondent, v. Freddy Rivera CORBI, Defendant and Appellant.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Marvin E. Mizell and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed. (Super. Ct. No. SCD283353)
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Marvin E. Mizell and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
DATO, J.
Appellant Freddy Rivera Corbi was bulbed by gang members in his community for years. In the summer of 2019, a gang member stabbed him in the wrist with a broken beer bottle, causing serious injuries. A month later, Corbi ran into another member of that same gang, Lazaro Orozco. The encounter turned into an argument that ended with Corbi fatally shooting Orozco. At trial, the main issue was whether the shooting was self-defense, or whether Corbi actually belonged to a rival gang and killed Orozco as an act of revenge. Ultimately, the jury convicted Corbi of second degree murder.
On appeal, Corbi argues the trial court abused its discretion in allowing the prosecution’s gang expert to offer certain opinions on the significance of Corbi following Orozco before the shooting. He further asserts that the prosecutor violated the California Racial Justice Act of 2020 during closing arguments by repeatedly highlighting one of Corbi’s Facebook posts indicating his interest in white women. He claims the court erred in considering whether to dismiss a firearm enhancement at sentencing as well. For reasons we will explain below, we see no reversible error or reason to remand this case for resentencing and, accordingly, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As a child growing up, Corbi moved around often. Towards the end of his childhood, his family lived in a neighborhood with high gang activity. He got "banged a lot" in high school, meaning a group of five or six gang members would ask him where he was from, he would say, "Nowhere," and then they would stomp on him and beat him. This happened so often that he became afraid to go to school and dropped out after ninth grade. Even so, he continued to get "banged on" in his neighborhood. He was attacked with screwdrivers, bats, and knives.
In the summer of 2019, Corbi was 20 years old. That Fourth of July, he was at a local park celebrating when a group of three Eastside San Diego (ESD) gang members approached him. One of them was holding a glass beer bottle and asked Corbi where he was from. When he said, "Nowhere," the ESD member broke the bottle and thrust it towards Corbi’s face and neck. Corbi raised his hand defensively and the bottle stuck inside his wrist, causing serious injuries. Following this incident, he started carrying a gun to protect himself.
The shooting in question occurred about one month later. At around 2:30 in the afternoon, Corbi was walking to get some thing to eat. His arm was still in a cast from the stabbing. What happened next was recorded by a "smart" streetlight camera positioned nearby.
The video showed Corbi encountering Orozco near an intersection. Orozco was holding his shirt in his hand, revealing ESD tattoos all over his torso, neck, and face. Orozco raised his arm and approached Corbi. Although the video lacked sound, it looked as though they were arguing. Orozco continued raising his arm and making gestures with his hands.
Corbi and Orozco began to walk away from each other, then Orozco turned around and said something to Corbi. Orozco resumed walking away, but Corbi turned and followed Orozco around the corner of the city block. As Corbi followed, his right hand moved toward his midline, and he looked back and forth. Roughly 15 seconds later, Orozco disappeared into "a little alcove" at the entrance to a building, outside the camera’s view. He looked back towards Corbi just before entering the alcove.
When Orozco reemerged, he no longer had his shirt in his hand. As Corbi stood on the sidewalk just outside the alcove, Orozco walked in an arc around him toward the street. He raised his hands, made more gestures, and puffed out his chest, apparently challenging Corbi to a fight. Corbi fired several shots and Orozco fell into the street. Corbi immediately ran away, shooting again as he passed Orozco and then hiding his jacket and his gun in a nearby alleyway.
Despite receiving prompt medical attention, Orozco died of multiple gunshot wounds to the front of his neck, his left shoulder and lung, his right forearm, and his lower back. He had methamphetamine, marijuana, and fentanyl in his system at the time of his death. No weapons were found on his person or at the scene.
About three weeks later, the police received a Crime Stoppers Tip identifying Corbi as the shooter. The tipster said that Corbi had made a new Facebook profile under the username "QK Mobb." The lead detective on the case looked up the profile and discovered it was public, meaning anyone could review it. He noticed that the profile was created after the shooting, and at some point, the username was changed to "QK MDLS Adams Avenue." He also saw several photos of Corbi on the profile, including two that had been posted earlier that day. In one photo, Corbi is making the shape of a gun with his hand. The photo is captioned: "Where my CheexSers hoexs at?"
The lead detective obtained a warrant to search the Facebook account further. He discovered private messages sent from the account indicating that Corbi had been in Mexico since the shooting, but had recently returned to San Diego. The police arrested Corbi near his home shortly thereafter.
The prosecution charged Corbi with murder (Pen. Code, § 187, subd. (a)) and alleged that he personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). At trial, the prosecutor pursued first degree murder on a theory of premeditation and deliberation. Specifically, he theorized that Corbi belonged to a rival gang called Mexican Demon Lokos (MDLS) and shooting Orozco was an act of retaliation for the Fourth of July stabbing.
Further undesignated statutory references are to the Penal Code.
Detective Doru Hansel testified as a gang expert for the prosecution. The gangs he focuses on include ESD and MDLS. Hansel explained that ESD has existed since the 1960’s or 70’s and is one of the largest gangs in town with about 170 active members. Hansel confirmed that Orozco was an ESD member. He identified Orozco’s tattoos, including "ESD" above his right eye, an "E" and "S" on his right cheek, and "Eastside" along his lower torso.
MDLS started in the 1990’s and its membership is "extremely low" with less than 10 active members. Adams Avenue is a significant street for MDLS, and the members sometimes call themselves "Calle Adams Boys." Looking at some pictures of Corbi, Hansel opined that a "C" and "A" tattoo on his chest symbolized "Calle Adams." Hansel further opined that Corbi making the letters "M" and "D" with his hands indicates MDLS membership, or at least a desire to join MDLS.
Regarding the Facebook evidence, Hansel explained that calling an ESD member a "quesero" or "cheeser" was an extremely disrespectful insult. Since "QK" can mean "Queso Killer," Hansel interpreted Corbi’s username—"QK MDLS Adams Avenue"— to mean "I killed an Eastsider or I’m willing to kill an Eastsider, ready to kill an Eastsider, and I’m from MDLS." The photo captioned with the phrase "CheexSers hoexs" was a derogatory callout to ESD members, with the inserted "x" letters symbolizing crossing out ESD graffiti. In Hansel’s opinion, the fact that the profile was public meant that Corbi was proud and unafraid.
Hansel confirmed that the shooting in this case took place in ESD territory. According to Hansel, simply walking through ESD turf as a rival gang member is disrespectful. "If you plan to go into rival territory," he explained, "you better be armed. It’s common knowledge you’re not just going to go into somebody’s turf as a rival." And if somebody "hits you up," you must be ready to go. When a gang member asks—"Where are you from?"—it is a challenge and can be a precursor to violence.
Generally, Hansel testified, if someone is attacked by a certain gang, and the gang catches that person on their turf again, they would be a target and their life could possibly be in danger. If that person was part of a rival gang, they would be "looking for trouble" by returning to that turf. Considering a hypothetical wherein Gang A attacks a member of Gang B, then one month later the Gang B member ventures into Gang A territory, Hansel opined that the Gang B member was brazen and unafraid. Bringing a gun into that scenario means, "I’m ready to get down." As discussed in more detail below, Hansel watched the streetlight video and gave his opinion on the encounter between Corbi and Orozco as well.
The defense at trial was self-defense. Corbi testified that he had never seen Orozco before. When they crossed paths, Orozco caught his attention by saying, "Hey," and raising his hand. Orozco then asked where he was from. He said, "Nowhere." Orozco asked again. At this point, he noticed that Orozco "looked high" because he was "twitching a lot" and his pupils were dilating. He was big, muscular, and had tattoos all over his body. Corbi felt afraid and thought he was going to be killed.
Orozco asked Corbi to follow him. Corbi started to walk away, but decided he "couldn’t" keep walking away. He thought that if he ran, he could be hit by a car, or Orozco could catch him, tackle him, pull out a gun, and kill him. So he followed Orozco, and he took out his gun in case Orozco "attacked" him or "pushed" him. As he followed, he looked around for additional gang members because, in his experience, they attacked in a group. When Orozco reached the alcove, he put his tank top down, which signaled to Corbi that he was ready to fight or kill. Corbi did not see any weapons, but he thought Orozco might have a screwdriver or a knife in his boxer shorts. When Orozco walked towards the street and raised his hands, Corbi thought he was going to attack, so he shot him. Corbi elaborated: "He just looked – he looked scary. He took, like, a step forward towards me with his hands up. He would have tackled me down, dropped me, [felt] the gun, he would have shot me."
After the shooting, Corbi went to stay with his older sister in Mexico, as he often did. Although he felt terrible about the shooting, he started claiming MDLS, derogating ESD, and bragging about the killing on Facebook, hoping this would convince ESD members to leave him alone. He denied that he was a member of MDLS before or at the time of the shooting. He said his "CA" tattoo simply stood for "California."
In support of the defense, forensic psychologist Dr. Kristina Malek testified regarding Corbi’s cognitive abilities and mental health. Upon evaluating Corbi before trial, Dr. Malek determined that Corbi has a mild intellectual disability and "pretty extensive trauma." Aside from the Fourth of July attack, he suffered child abuse, child neglect, community violence, and extreme poverty. As a result, he exhibits some symptoms of PTSD, including hypervigilance. Moreover, because he was only 20 years old at the time of the shooting, his brain was not yet fully developed. At this age, the "reward system" part of the brain is "only loosely connected" to the decisionmaking part, which causes youths to seek out high-risk, high-reward experiences while ignoring the potential consequences. They are less able to problem solve in stressful situations as well. This can be exacerbated by intellectual disability and trauma.
Dr. Malek agreed that Corbi’s learning impairment, the immaturity of his brain, and his past trauma could all affect how he handled the incident in question. She believed he "would be in a heightened state of arousal" when asked where he was from, especially considering that he perceived Orozco as large and intimidating. Although individuals who have experienced repeated trauma "tend to overrespond in stressful situations" or "misinterpret cues as being more dangerous than what they actually are," Dr. Malek opined that, in this particular case, Corbi’s flight-or-fight response and fear were legitimate.
The defense also presented the testimony of their own gang expert, Adam Mortera Mortera is a reformed gang member who develops and facilitates rehabilitative programs throughout the state prison system. He explained that gangs recruit in schools within their turf. If someone is not interested in joining, the gang could target that person for bullying, harassment, and even assault.
Similar to Hansel, Mortera testified that the question "where are you from" is "step one in gang confrontation" and could lead to an assault or possibly death. If the person asking the question is "staring you down" and appears to be under the influence, Mortera opined that person is probably looking for a confrontation.
Mortera also explained that because "gang culture is all mainly retaliation and ego or image," if a gang attacks someone, they would expect the victim to retaliate. In anticipation of that, the gang would continue to target the victim "to keep them on the defensive." And once someone is attacked, the levels of threat and violence "[a]bsolutely" continue to escalate. Mortera agreed that a nonmember might engage in gang-like behavior after an incident like the shooting in order to gain protection. A nonmember might begin associating with rival gang members, get tattoos like them, and brag about the killing. They might use derogatory terms as a way of saying, "keep messing with me and you’re going to get what the last person got." Hypothetically, if someone killed an ESD member and then posted on Facebook that they were a "Queso Killer," Mortera opined this could communicate bravado and fearlessness.
Watching the smart streetlight video, Mortera testified that it was possible Corbi was afraid when he followed Orozco. He clarified: "[I]f Mr. Corbi thought that this person was going to attack him, walking away, even distancing yourself is fruitless. It’s irrelevant. The person is going to get you. If that’s what you really believe, then walking back isn’t out of what you would think would be considered normal. Especially for someone who is claiming to be fearful."
Consistent with Hansel, Mortera believed an average gang member who was followed as Orozco was followed would "[g]et ready to fight." Indeed, just before the shooting, he recognized that Orozco was "moving his arms around" and "getting ready to square up and fight." Although Mortera knew Orozco was unarmed, he concurred that gang members often hide weapons in their boxer shorts.
Ultimately, the jury convicted Corbi of second degree murder and found true the firearm allegation (§ 12022.53, subd. (d)). At sentencing, the trial court granted the defense’s motion to impose a lesser firearm enhancement (id., subd. (b)) and accordingly sentenced Corbi to 15 years to life for the murder, consecutive to 10 years for the reduced firearm enhancement.
DISCUSSION
A. There is no prejudicial error regarding the expert testimony.
See footnote *, ante.
B. Corbi did not preserve his Racial Justice Act claim for appeal.
Corbi, who is Mexican-American, contends that the prosecutor violated the California Racial Justice Act of 2020 (RJA) during closing arguments by referencing his interest in white women.
1. Additional Background
As discussed above, the prosecution presented photos and messages from the Facebook profile that Corbi created after the shooting. In the photo at issue here, Corbi is shown making the letter "D" with his hand. The photo is captioned: "Papas n beer OMW #holla at wueritas[.]" Before trial, the prosecutor suggested the photo was relevant to show flight after a crime— and thus consciousness of guilt—since Papas & Beer was "a famous cantina down in" Mexico. Defense counsel initially objected to all of the Facebook evidence on foundation grounds, but ultimately agreed that the detectives who arrested Corbi could identify him in the photos. She did not ask to exclude the photo or redact any portion of the caption under the RJA.
The photo was discussed a few times at trial. The lead detective confirmed that he took a screenshot of the photo from the "QK MDLS Adams Avenue" profile and identified Corbi in the picture. He read the caption out loud for the jury, and testified that he understood "wueritas" to mean "white girls." Detective Hansel opined that the letter "D" could be a gang sign for MDLS. And on cross-examination, Corbi agreed that he took this picture and posted it when he was in Mexico after the shooting. He acknowledged he did not look remorseful in the photo. Defense counsel did not object to the photo or the translation at trial.
In closing, the prosecutor referenced the Facebook evidence in arguing that Corbi’s behavior after the shooting showed a lack of remorse:
"But this is the guy who came in here and told you the sympathetic story about his upbringing and about how his learning disabilities make him make bad decisions. Now, this guy headed down to Mexico, started drinking at Papas & Beer, wondering where all the white ladies were at [¶] But the aftermath of this case is important. We see him gang banging on the internet. We see the threats. We see the name changing. All of which are important. This gang member defendant. This was taken after the shooting by his own admissions. Not very remorseful. Throwing MDLS gang signs, posting it on public pages. More gang signs, more gangster. ‘Papas & Beer, on my way. Holla at the white women’. This is the no remorse. This is the defendant outside this courtroom. The one proud to represent his gang set. Proud to change his name to Queso Killer. Proud to represent Adams Avenue. Flashing gang signs, having a pretty good time.… Calling out[,] Where my CheexSer hoexs at?’ This is murder. This is somebody proud of what he did. Not somebody that it was him or me." (Italics added.)
Then, towards the end of his argument, the prosecutor again referenced the Facebook evidence in characterizing Corbi’s actions as brazen:
"It’s nice in a murder trial to see that the People’s gang expert and one of the defendant’s own witnesses can agree about something. It has to do with the brazen acts of the defendant. We’ve talked about how going into ESD territory in and of itself, if you’re claiming to kick it with MDLS, is a brazen act. To do so at 2:30 in the afternoon, packing heat in a jacket, even more so. Bragging about being a queso killer on Facebook is a brazen act because you’re asking for retaliation. You’re saying[,] ‘I’m the queso killer, bring it ESD.’ This is not someone so afraid of ESD that it was him or me. Shooting someone dead in the street, going on a holiday in Mexcio, drinking at Papas & Beer, looking for white women, brazen. Changing your screen name to Queso Killer, brazen." (Italics added.)
When the prosecutor completed his closing argument, the trial court excused the jury for a 15 minute break. Outside the presence of the jury, the court and counsel had an unreported discussion. Defense counsel then memorialized some or all of the discussion for the record:
"During the Prosecution’s closing argument, I believe that there were certain comments that were improper. There were comments about the Defense trying to get him off. He made a comment about Mr. Corbi trying to get at white women. And he called Mr. Corbi a gangster. I believe that those arguments were improper. That he’s saying those things to inflame the passions of the jury, and I just want that to be noted."
In response, the prosecutor addressed his use of the term "gangster" only. The court then expressed its views:
"Here’s the way I look at it, and you can respond if you wish. I think the comment – the insinuating that it’s the job of a defense attorney to get him off is an improper comment.
"I don’t think the white women is an improper comment because I believe
there’s something on one of those things – it’s in Spanish indicating that’s a white woman. I mean, it’s there. Whether it should be argued or not is something else, but it’s there.
"Gangster or gang member, I think is not so different that I would prohibit the prosecutor from saying ‘gang member’ or ‘gangster,’ either one.
"Any comment or disagreement with that by the defense? Obviously, you don’t agree with all of it."
Defense counsel replied: "Correct, your Honor. I would just hope that in rebuttal that there isn’t another comment about trying to get my client off." The court did not expect any such comments. The jury returned to the courtroom and counsel gave her closing argument. On rebuttal, the prosecutor did not mention "white women" again.
2. The California Racial Justice Act of 2020
The RJA, which took effect January 1, 2021, provides that "[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." (§ 745, subd. (a).)
The RJA was passed with the express intent "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." (Assem. Bill No. 2542 (2019–2020 Reg. Sess.) § 2, subd. (i).) The Legislature’s goal was "to provide remedies that will eliminate racially discriminatory practices in the criminal justice system, in addition to intentional discrimination." Id., § 2, subd. (j).) The Legislature recognized that "[i]mplicit bias, although often unintentional and unconscious, may inject racism and unfairness into proceedings similar to intentional bias" and specified that its intent was "not to punish this type of bias, but rather to remedy the harm to the defendant’s case and to the integrity of the judicial system." Id., § 2, subd. (i).)
The RJA specifies four categories of conduct, any one of which, if proven by a preponderance of the evidence, establishes a violation. (§ 745, subd. (a)(1)–(4).) As relevant here, a violation occurs when, "[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." Id., subd. (a)(2).) However, "[t]his paragraph does not apply if the person speaking is relating language used by another that is relevant to the case or if the person speaking is giving a racially neutral and unbiased physical description of the suspect." Ibid.)
In turn, the statute defines "[r]acially 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." (§ 745, subd. (h)(4).) "Evidence 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." Ibid.)
3. Corbi forfeited his RJA claim by failing to raise it below.
[1] Corbi argues that the prosecutor’s remarks about his interest in white women were racially discriminatory under the RJA because they "primed implicit bias of jurors about interracial relationships in general, and about stereotypes of men-of-color seeking out white women for sex in a predatory manner in particular." While his Facebook photo used the phrase "holla at wueritas," Corbi points out that the prosecutor took liberties with the photo’s caption—suggesting he was "wondering where all the white ladies were at" and "looking for white women"—and, in any event, his interest in white women was wholly irrelevant to the shooting at issue. Moreover, making these remarks in the context of arguing that he was brazen and unremorseful amplified their discriminatory effect.
The Attorney General argues that Corbi forfeited his claim because he failed to bring a motion under the RJA in the trial court. He further contends the claim fails on the merits because the prosecutor simply related language that Corbi used in his Facebook photo, and the photo was "relevant to counter the defense narrative that [Corbi] lived in fear of the Eastsiders, killed out of self-defense, and was remorseful for taking Orozco’s life."
Corbi’s point is well taken, but we agree with the Attorney General that he failed to preserve his claim for direct appeal.
In its initial form, the RJA stated that "[a] defendant may file a motion in the trial court or, if judgment has been imposed, may file 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)." (Stats. 2020, ch. 317 (Assem. Bill No. 2542) § 3.5, eff. Jan. 1, 2021; § 745, subd. (b).) This language created a question of whether, postjudgment, an RJA claim could only be pursued via habeas petition or section 1473.7 motion, i.e., not on direct appeal. (See People v. Lashon (2024) 98 Cal. App.5th 804, 811–812, 317 Cal.Rptr.3d 92 (Lashon).)
The Legislature responded three years later with Assembly Bill No. 1118 (2023–2024 Reg. Sess.) which, effective January 1, 2024, amended section 745, subdivision (b) to state, in relevant part: "A defendant may file a motion pursuant to this section, or 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). For claims based on the trial record, a defendant may raise a claim alleging a violation of subdivision (a) on direct appeal from the conviction or sentence. The defendant may also move to stay the appeal and request remand to the superior court to file a motion pursuant to this section."
The Supreme Court recently discussed how a defendant may establish good cause for a stay and remand under the RJA. People v. Wilson (2024) 16 Cal.5th 874, 943–962, 323 Cal.Rptr.3d 790, 552 P.3d 974.) Corbi did not seek a stay and remand in this court.
The question then became whether a defendant could raise an RJA claim for the first time on direct appeal. In Lashon, supra, 98 Cal.App.5th 804, 317 Cal.Rptr.3d 92, the First Appellate District, Division Three answered this question in the negative, concluding that "long-standing procedural appellate rules governing forfeiture of issues continue to apply" in this context. Id. at p. 809, 317 Cal.Rptr.3d 92.) Accordingly, a defendant may be found to have forfeited an RJA claim made for the first time on direct appeal absent a showing that some exception to the forfeiture doctrine applies. Id. at p. 815, 317 Cal. Rptr.3d 92.)
To reach that conclusion, the Lashon court first analyzed the language of section 745. Although section 745, subdivision (b) now expressly permits a defendant "to raise a claim alleging a violation of subdivision (a) on direct appeal," the appellate court emphasized that the statute does not say that defendants may raise such claims for the first time on direct appeal. (Lashon, supra, 98 Cal.App.5th at p. 812, 317 Cal.Rptr.3d 92.) Absent such language, the court concluded that "review of a section 745 claim, like any other appellate claim, is subject to the general appellate rules of preservation and forfeiture of claims that could have been but were not made in the trial court." (Ibid.; see also Hayes v. Temecula Valley Unified School Dist. (2018) 21 Cal.App.5th 735, 748, 230 Cal.Rptr.3d 576 ["Appellate courts may not add provisions to a statute or rewrite it to conform to an asserted ‘intent that does not appear from its plain language’"].)
The court found support for its interpretation in other parts of section 745—notably, subdivision (c). (Lashon, supra, 98 CalApp.5th at pp. 812–813, 317 Cal. Rptr.3d 92.) That provision currently provides: "If a motion is filed in the trial court and the defendant makes a prima facie showing of a violation of subdivision (a), the trial court shall hold a hearing. A motion made at trial shall be made as soon as practicable upon the defendant learning of the alleged violation. A motion that is not timely may be deemed waived, in the discretion of the court." (§ 745, subd. (c), italics added.) Subdivision (c) goes on to describe the evidence that may be presented at the hearing, the burden of proof, and the requirement for the court to make its findings on the record. (Id., subd. (c)(1)–(3).)
The Lashon court opined it would not make sense "for the Legislature to prescribe a comprehensive procedure for making and adjudicating a section 745 motion at the trial level (including a specific waiver provision for untimely motions), only to allow defendants who could have but did not use that procedure (thereby preserving their claim for review) to bypass that procedure and pursue a section 745 claim for the first time on direct appeal." (Lashon, supra, 98 Cal.App.5th at p. 813, 317 Cal.Rptr.3d 92; accord People v. Singh (2024) 103 Cal.App.5th 76, 115, 323 Cal.Rptr.3d 45 Singh) ["To permit a defendant to raise a claim on direct appeal where, as here, he could have but failed to timely raise it at trial would render the timeliness requirement set forth in section 745, subdivision (c) meaningless because, even if such a claim was not timely raised below, it could be raised for the first time on appeal"].) The court also considered the waiver provision to be "consistent with the basic rationale of the forfeiture doctrine— i.e., ‘ " ‘ "to encourage a defendant to bring errors to the attention of the trial court, so they may be corrected or avoided and a fair trial had." "" " Lashon, at p. 813, 317 Cal.Rptr.3d 92, quoting People v. Simon (2001) 25 Cal.4th 1082, 1103, 108 Cal. Rptr.2d 385, 25 P.3d 598 (Simon).)
To the extent section 745 was ambiguous, the Lashon court also examined the legislative history of Assembly Bill No. 1118 and confirmed that the Legislature did not intend to allow defendants to pursue RJA claims for the first time on direct appeal. (Lashon, supra, 98 Cal.App.5th at p. 813, 317 Cal.Rptr.3d 92.) An analysis from the Assembly Committee on Public Safety was particularly illuminating. There, the committee explained in critical part:
"This bill would make additional clarifying changes to the CRJA. It would specify that a CRJA claim based on the trial record may be raised on direct appeal from the conviction or sentence, not just in a habeas petition. (In re Carpenter (1995) 9 Cal.4th 634, 646 [38 Cal.Rptr.2d 665, 889 P.2d 985 "Appellate jurisdiction is limited to the four corners of the
record on appeal[ ]"].) This bill would also clarify that the defendant/appellant may move to stay the appeal and request remand to the superior court to file a CRJA motion. This may be necessary to permit the trial court to rule on the claim in the first instance, and to allow the parties to fully litigate the issue. (See Grayl CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal. App.4th 882, 897 [182 Cal.Rptr.3d 654 "[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court. Thus, we ignore arguments, authority and facts not presented and litigated in the trial court"] (citation and quotations omitted); see also People v. Welch (1993) 5 Cal.4th 228, 237 [19 Cal.Rptr.2d 520, 851 P.2d 802 "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence"].)" (Assem.Com. Public Saf., com. on Assem. Bill No. 1118 (2023-2024 Reg. Sess.) as amended Mar. 15, 2023, pp. 5–6 (Assembly Public Safety comment).)
Since this discussion indicated that the Legislature was aware of the general rules of preservation and forfeiture of issues on appeal, the Lashon court could not attribute the absence of language allowing defendants to raise RJA claims for the first time on direct appeal to mere inadvertence. (Lashon, supra, 98 Cal.App.5th at pp. 813–814, 317 Cal.Rptr.3d 92.) To the contrary, the omission in light of this discussion "strongly suggest[ed] the Legislature intended to leave the issues of preservation and forfeiture of claims on direct appeal to be resolved by the courts based on long-standing procedural canons." (Id. at p. 814, 317 Cal.Rptr.3d 92.)
We agree with this analysis. Corbi raises several arguments urging us to depart from Lashon, but none are persuasive. As we understand it, his main argument is that the clause "[f]or claims based on the trial record" in section 745, subdivision (b) means that claims based exclusively on the record—in his view, subdivision (a)(2) claims—are not subject to forfeiture because they "rise and fall entirely on an assessment of what is in the record—for example, in this case, an assessment of the prosecutor’s statements during closing argument." By contrast, "disparate enforcement" claims—under subdivision (a)(1), (3), or (4)—must be preserved in the trial court via motion because they require "an evidentiary hearing or additional factual development."
Under section 745, subdivision (a)(1), a violation is established if the defendant proves, by a preponderance of the evidence, that "[t]he 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." A subdivision (a)(3) violation is established if "[t]he defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins," and an (a)(4) violation occurs when "[a] longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated individuals convicted of the same offense. " (§ 745, subd. (a)(3)–(4).)
Corbi’s argument runs afoul of the plain language of section 745, which prescribes the same procedures for raising a claim under any subpart of subdivision (a). (See § 745, subd. (b) ["A defendant may file a motion pursuant to this section, or a petition for writ of habeas corpus or a motion under Section 1473.7, in a court of competent jurisdiction, alleging a violation of [section 745,] subdivision a). For claims based on the trial record, a defendant may raise a claim alleging a violation of subdivision a) on direct appeal from the conviction or sentence" (italics added)]; § 745, subd. (c) ["If a motion is filed in the trial court and the defendant makes a prima facie showing of a violation of subdivision (a), the trial court shall hold a hearing" (italics added)]; id., subd. (c)(2) ["The defendant shall have the burden of proving a violation of subdivision a) by a preponderance of the evidence" (italics added)].) Indeed, the defendant in Lashon, like Corbi in this case, was pursuing a section 745, subdivision (a)(2) claim. (See Lashon, supra, 98 Cal.App.5th at pp. 809-810, 317 Cal.Rptr.3d 92.)
[2] Moreover, his argument assumes that forfeiture only concerns whether the claim raised on appeal is supported by the trial record. As we have already noted, however, "the basic rationale of the forfeiture doctrine" is to encourage defendants " ‘ " ‘to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had….’ " ’ " (Simon, supra, 25 Cal.4th at p. 1103, 108 Cal.Rptr.2d 385, 25 P.3d 598; see also People v. Partida (2005) 37 Cal.4th 428, 434, 35 Cal.Rptr.3d 644, 122 P.3d 765 Partida) [a specific objection "‘serves to prevent error’" and "‘avoid possible prejudice’"].) Here, had defense counsel presented the RJA claim to the trial court as soon as practicable, the defense could have pursued "a remedy specific to the violation" much sooner—even before the jury began deliberations. (See § 745, subd. (e).)
In light of the relevant legislative history, we believe the Legislature included the phrase "[f]or claims based on the trial record" to acknowledge that appeals, as opposed to habeas petitions or section 1473.7 motions, are "‘limited to the four comers of the record.’" (Assem. Public Saf. com., supra, at p. 5, quoting In re Carpenter (1995) 9 Cal.4th 634, 646, 38 Cal.Rptr.2d 665, 889 P.2d 985.) We do not read this clause to mean that certain RJA claims are not forfeitable.
[3] Corbi further asserts that following the reasoning of Lashon would result in "mass forfeiture of an entire category of RJA claims—those in which the defendant’s own attorney used racially discriminatory language or otherwise exhibited racial animus toward the defendant"—because an attorney certainly would not object to their own biased remarks. But we read Lashon merely to hold that a defendant forfeits an RJA argument that could have been raised in the trial court but was not. Forfeiture is not appropriate where a defendant has no reasonable means of making the argument.
Moreover, at least one published case suggests a way in which such a claim might be raised in the trial court, at least in some circumstances. In People v. Coleman (2024) 98 Cal.App.5th 709, 320 Cal.Rptr.3d 473, the defendant made an oral Marsden motion alleging ineffective assistance of counsel on multiple grounds, including that his attorney advised him to "‘use Ebonics, slang, and to sound ghetto’" when he testified. Coleman, at pp. 717-718, 320 Cal.Rptr.3d 473.) The trial court appointed new counsel to investigate a potential motion for new trial. (Id. at p. 718, 320 Cal.Rptr.3d 473.) Ultimately, the substitute counsel did not assert a claim under the RJA before sentencing, but presumably could have. (Ibid.)
We appreciate that the overall purpose of the RJA is to eliminate racial bias from our justice system "because racism in any form or amount, at any stage of a criminal trial, is intolerable …." (Assem. Bill No. 2542 (2019–2020 Reg. Sess.) § 2, subd. (i).) But at the same time, we must also account for the fact that, in enacting Assembly Bill No. 1118, the Legislature intended "to ensure RJA claims are processed more efficiently and that the intent of the law is followed." (Assem. Public Saf.com., supra, at pp. 4–5.) As the Fifth Appellate District observed in Singh, supra, 103 CalA.pp.5th at page .115, 323 Cal.Rptr.3d 45, "[p]ermitting an [RJA] claim to be raised on direct appeal for the first time when it could have been timely raised and remedied below would be directly contrary to the goal of promoting judicial efficiency." And if the Legislature had intended for RJA claims to be decided on their merits whenever raised, it would not have required RJA motions to be "made as soon as practicable upon the defendant learning of the alleged violation" and given courts the discretion to deem untimely motions waived. (§ 745, subd. (c).)
[4] In any event, relying on People v. Hubbard (2020) 52 CalApp.5th 555, 266 Cal.Rptr.3d 434 (Hubbard), Corbi insists that his RJA claim was preserved because his trial counsel raised a timely objection to the prosecutor’s comments. In Hubbard, the defendant argued on appeal that the prosecutor committed misconduct by commenting on his failure to testify, in violation of Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 Griffin). Hubbard, at p. 560, 266 Cal. Rptr.3d 434.) The high court in Griffin specifically held that such remarks offend the self-incrimination clause of the Fifth Amendment. Griffin, at pp. 611–615, 85 S.Ct. 1229; see also Hubbard, at p. 563, 266 Cal.Rptr.3d 434.)
The Attorney General in Hubbard asserted that the defendant forfeited his claim by not timely objecting based on federal constitutional error. (Hubbard, supra, 52 CalApp.5th at p. 562, 266 Cal. Rptr.3d 434.) The Third Appellate District disagreed. Defense counsel objected immediately after the conclusion of the prosecutor’s argument, contending that he "made ‘an improper argument’ by highlighting that [the defendant] did not testify and implying that he should have testified to support his trial counsel’s version of the events." (Id. at pp. 561, 563, 266 Cal. Rptr.3d 434.) The appellate court considered this objection to be timely and sufficient. (Ibid.)
Here, once the prosecutor concluded his closing argument, defense counsel stated that she believed the prosecutor’s "comments about the [d]efense trying to get him off," "Corbi trying to get at white women," and calling him "a gangster" were "improper" and designed to "inflame the passions of the jury …." When the trial court shared its perspective on the "white women" reference—"I don’t think [it] is an improper comment because I believe there’s something on one of those things – it’s in Spanish indicating that’s a white woman"—counsel did not press the issue further, even though the court invited counsel to respond, comment, or disagree. We would likely consider this objection timely and sufficient to preserve a claim of prosecutorial error. (See, e.g., People v. Seumanu (2015) 61 Cal.4th 1293, 1342, 192 Cal.Rptr.3d 195, 355 P.3d 384 [it is improper for the prosecutor "to appeal to the passions and prejudices of the jury" during argument].)
It is insufficient, however, to preserve the claim that Corbi attempts to raise now—i.e., that the prosecutor’s remarks violated the RJA, a distinct statutory scheme with enumerated procedures and remedies. The objection in Hubbard described the substance of a Griffin violation. The objection here—collectively flagging three separate comments from the prosecutor as improper and inflammatory—was not specific enough to alert the court that it was being called upon to decide whether the references to white women constituted "racially discriminatory language" within the meaning of section 745, subdivision (a)(2) by appealing to im- plicit biases about interracial relationships. On this point, Corbi further asserts that the RJA does not require a "formal motion" and an oral objection is sufficient. Even accepting this premise, the problem is that counsel’s oral objection did not mention the RJA or otherwise articulate a claim under section 745. (See People v. Fruits (2016) 247 Cal.App.4th 188, 208, 202 Cal.Rptr.3d 8 ["a party cannot argue on appeal that the trial court erred in failing to conduct an analysis it was not asked to conduct"]; People v. Fuiava (2012) 53 Cal.4th 622, 655, 137 Cal.Rptr.3d 147, 269 P.3d 568 ["A defendant ordinarily cannot obtain appellate relief based upon grounds that the trial court might have addressed had the defendant availed him or herself of the opportunity to bring them to that court’s attention"].)
[5, 6] Although his opening brief acknowledged the Lashon forfeiture rule and urged this court not to follow it, Corbi argues for the first time in his reply brief that if the RJA claim was forfeited, his trial counsel rendered ineffective assistance by failing to specifically raise it. "It is rarely appropriate," however, "to resolve an ineffective assistance claim on direct appeal" and as a matter of fairness "we certainly will not do so where, as here, the claim is omitted from the opening brief and thus waived." (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) In any event, claims of ineffective assistance of counsel are more appropriately raised on habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264 266–267.) We express no opinion on whether Corbi should pursue his claim(s) by means of a habeas petition.
C. The trial court properly imposed the firearm enhancement.
See footnote *, ante.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
O’ROURKE, Acting P. J.
BUCHANAN, J.