P. v. Lashon

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Filed 9/1/23; REVIEW GRANTED. See Cal. Rules of Court, rules 8.1105 and 8.1115 (and
corresponding Comment, par. 2, concerning rule 8.1115(e)(3)).
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MENIQUE LASHON,
Defendant and Appellant.
A163074
(Contra Costa County
Super. Ct. No. 51814102)
Defendant Menique Lashon appeals from a judgment following her
conviction for one count of second-degree murder and one count of first-
degree murder, together with true findings of special circumstance
allegations of multiple murders. Lashon was sentenced to a term of life
without the possibility of parole.
On appeal, Lashon contends the judgment was the result of the trial
judge’s implicit racial bias against her and her trial counsel in violation of the
California Racial Justice Act (CRJA), codified at Penal Code section 745. 1
She avers the portions of the trial and sentencing proceedings cited in her
opening brief constitute a prima facie showing for relief and asks us to
remand the matter to the superior court for an evidentiary hearing. 2
1 All statutory references are to the Penal Code.
2 We do not set forth a detailed factual recitation of the trial and
sentencing proceedings as it is not necessary to our disposition.

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We conclude Lashon has forfeited her section 745 claim on direct
appeal by not filing a section 745 motion in the trial court before judgment
was entered and affirm the judgment. In light of our determination, we do
not address her argument that she has alleged a prima facie showing for
relief under section 745 and deny her request to remand the matter for an
evidentiary hearing.
CALIFORNIA RACIAL JUSTICE ACT
The CRJA, as enacted in section 745, became effective on
January 1, 2021. 3 (Stats. 2020, ch. 317, §§ 1, 3, 3.5.) This was over four
months before the commencement of Lashon’s trial, and section 745 was
made applicable to all cases then pending in the trial courts. 4 (Id., subd. (j).)
Section 745 provides “[t]he state shall not seek or obtain a criminal
conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity,
or national origin.” (Id., subd. (a).) Pertinent to our discussion, the following
constitutes a violation of section 745: “[d]uring the defendant’s trial, in court
and during the proceedings,” a trial judge “exhibited bias or animus towards
the defendant because of the defendant’s race, ethnicity, or national origin,
whether or not purposeful” (id., subd. (a)(2)).
The CRJA sets forth the procedure for seeking relief during various
stages of a criminal proceeding. “A defendant may file a motion in the trial
court or, if judgment has been imposed, may file a petition for writ of habeas
3 The Legislature later amended section 745, effective January 1, 2023
(Stats. 2022, ch. 739, § 2); we cite to the language used in the current law for
convenience. Lashon asks us to consider pending legislature that, if enacted,
would further amend section 745. As an appellate court, we cannot consider
amendments that may or may not be made at a future date.
4 Consequently, and despite Lashon’s argument to the contrary, the
concept of applying a new law retroactively to cases not yet final is not
relevant to this appeal. (People v. Frahs (2020) 9 Cal.5th 618, 638, fn. 5.)

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corpus or a motion under Section 1473.7 in a court of competent jurisdiction,
alleging a violation of subdivision (a).” (§745, subd. (b).) The CRJA also sets
forth remedies for successful prejudgment and post judgment claims
(respectively, § 745, subds. (e)(1) and (e)(2)).
DISCUSSION
Because no CRJA motion premised on Lashon’s claim of implicit racial
bias by the trial judge was filed in the trial court during either the trial or
sentencing phases, we deem forfeited her CRJA claim for purposes of direct
appeal. (See, e.g., People v. Elliot (2012) 53 Cal.4th 535, 572 [defendant
forfeited claim that trial court exhibited racial bias during jury selection
process by failing to raise the issue at trial].)
Lashon asserts the general forfeiture rule should not apply because her
claim involves a “substantial right” or “an important issue of constitutional
law.” Her reliance on In re Sheena K. (2007) 40 Cal.4th 875 for this assertion
is misplaced. In that case, our Supreme Court held a juvenile could present a
constitutional challenge to a probation condition on direct appeal as it
presented “a pure question of law, easily remediable on appeal by
modification of the condition.” (Id. at p. 888.) However, the court did not
conclude “that ‘all constitutional defects in conditions of probation may be
raised for the first time on appeal, since there may be circumstances that do
not present “pure questions of law that can be resolved without reference to
the particular sentencing record developed in the trial court.” [Citation.] In
those circumstances, “[t]raditional objection and waiver principles encourage
development of the record and a proper exercise of discretion in the trial
court.” ’ ” (Id. at p. 889.) Simply put, Lashon’s claim for relief does not fall
under the In re Sheena K. exception because it does not present a pure

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question of law that can be resolved without consideration as to what
occurred during the trial and sentencing proceedings.
Lashon also argues the forfeiture rule should not be applied because
she did not have a meaningful opportunity to raise a CRJA claim at trial.
According to Lashon, there were no obvious signs of racial bias by the trial
judge “[u]ntil the African American defense attorney corrected the judge on
her misassumption that the attorney had not followed the correct procedure
on a subpoena duces tecum for medical records of a victim.” “However, once
this judge felt challenged by this attorney of color, both she and her client
became targets of increasing hostility. This behavior seems most likely
explained by the implicit bias held by the judge which was unleashed only
after she felt her authority questioned. When the trial attorney did object to
the trial court’s behaviors, she was met with denials and greater hostility.”
We find this argument unavailing as Lashon has not demonstrated she could
not object or an objection would have been futile. Even if her trial counsel did
not want to antagonize the trial judge during the trial, a section 745 motion
could have been filed immediately after the trial judge gave her reasons for
choosing the sentence she was about to impose. (See, e.g., People v. Garcia
(2022) 85 Cal.App.5th 290, 295–298 (Garcia) 5 [trial court abused its
5 We see no merit to Lashon’s argument that in Garcia, supra, 85
Cal.App.5th 290, we rejected the Attorney General’s position “that [the]
defendant can seek only postjudgment relief under the CRJA through a
habeas petition.” (Id. at p. 298, fn. 4.) The statement was made in the
context of explaining that because a judgment had not been entered at the
time Garcia sought CRJA relief in the trial court, Garcia was not precluded
from presenting his claim for relief on direct appeal. Accordingly, “[f]or the
same reason,” i.e., that no final judgment had been entered in the case, we
rejected the Attorney General’s contention that the defendant could seek only
postjudgment relief under the CRJA through a habeas petition. (Id. at p. 298,
fn. 4; italics added.) By our decision in Garcia, we made no finding that a

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discretion in denying request for continuance of sentencing to allow
defendant time to prepare a motion for substantive relief under § 745].)6
We therefore affirm the judgment as Lashon has forfeited her appellate
claim for relief under section 745. In light of our determination, we do not
address her substantive argument that portions of the trial and sentencing
proceedings cited in her opening brief constitute a prima facie showing for
relief, and we deny her request to remand the matter to the superior court for
an evidentiary hearing. We also deny her separate motion to stay the appeal
and for a limited remand to permit further factual development of the
appellate record as Lashon had the opportunity to make a section 745 motion
in the trial court but failed to do so. (Cf. People v. Martinez (2019) 31
Cal.App.5th 719, 729.)
Finally, we note that Lashon indicates that if we find she has forfeited
her section 745 claim on direct appeal, she may pursue the filing of a petition
for writ of habeas corpus. While our decision should not be read as
foreclosing Lashon from filing a petition for writ of habeas corpus in a court
of competent jurisdiction, we express no opinion on the timing, the issues
defendant may present a CRJA claim on direct appeal when the issue was
not raised in the trial court.
6 To the extent Lashon asserts that “[t]he behavior of the trial judge
cannot be sanctioned even without reference to the Racial Justice Act,” citing
to People v. Nieves (2021) 11 Cal.5th 404 (Nieves), that issue has been
forfeited because it was not presented in compliance with the rules governing
briefs filed in this court. Specifically, it was not presented under a separate
point heading and supported by a cogent argument as to why we should
follow Nieves in this case. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [each
brief must “[s]tate each point under a separate heading or subheading
summarizing the point, and support each point by argument and, if possible,
by citation to authority”]; Allen v. City of Sacramento (2015) 234 Cal.App.4th
41, 52 [“citing cases without any discussion” as to why the cases should be
followed “results in forfeiture” of the appellate claim].)

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that may be presented, or the appropriate outcome of any petition that
Lashon may file.
DISPOSITION
The judgment is affirmed.

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_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Rodríguez, J.
A163074/People v. Lashon

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Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Terri A. Mockler
Counsel: Marylou Hillberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Assistant
Attorney General, Katie Stowe and Linda Murphy, Deputy
Attorneys General, for Plaintiff and Respondent.

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