The opinion
Filed 2/28/25
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ELIJAH JACKSON, D084751
Petitioner, (San Diego County
Super. Ct. No. SCD300281)
v.
THE SUPERIOR COURT OF
SAN DIEGO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDING in mandate. Petition granted.
Jo E. Super, Chief Deputy Public Defender, and Sadaf Tajzoy Hane,
Deputy Public Defender for Petitioner.
Summer Stephan, District Attorney, Linh Lam, Valerie Ryan, and Sara
Staninger, Deputy District Attorneys, on behalf of Real Party in Interest.
No appearance for Respondent.
Petitioner Elijah Jackson was charged with a firearm possession
offense after police discovered a handgun during a search of the car he had
been driving. Jackson filed a motion under the California Racial Justice Act
of 2020 (Racial Justice Act) (Stats. 2020, ch. 317, § 1) claiming that the police
stopped and searched his car because he is Black. The superior court denied
Jackson’s motion for failure to state a prima facie violation under the Racial
Justice Act. Because we conclude Jackson produced facts, if true, that
establish there is a substantial likelihood that a violation of the Racial
Justice Act occurred (see Pen. Code,1 § 745, subd. (h)(2)), we issue a writ of
mandate and direct the trial court to grant an evidentiary hearing to consider
Jackson’s motion.
FACTUAL AND PROCEDURAL BACKGROUND
The People charged Jackson, who is Black, with carrying a loaded
firearm in violation of section 25850, subdivision (a) after police discovered a
handgun during a search of the car he had been driving. In addition, it was
alleged that Jackson was not the registered owner of the firearm (§ 25850,
subd. (c)(6)).
The testimony at the preliminary hearing established that a group of
four San Diego Police Department (SDPD) patrol officers were conducting an
operation to “saturate” the Skyline Hills neighborhood to “suppress any
violent crime going on and show [their] presence in the area.” In doing so,
the officers drove around the area, looking for people they recognized as
having warrants. Additionally, the officers were patrolling simply to show
their presence and deter any potential crime. Officer Cameron Watson
explained that the unit was focused on Skyline as “a particularly violent
neighborhood.” Watson admitted on cross-examination that “saturation
patrols” are far more common in areas like Skyline than areas like
Kensington, Scripps Ranch, and La Jolla.
1 Statutory references are to the Penal Code unless otherwise specified.
2
During patrol on the day in question, Watson observed a car, driven by
Jackson, with illegally tinted windows. He watched Jackson park the car in a
strip mall and go inside a smoke shop. Jackson was wearing a black jacket, a
black hat, and a black ski mask. Although the mask had an opening for the
eyes, nose, and mouth, Watson commented that the mask “could easily
conceal [Jackson’s] identity.”2 Watson referred to the mask as a “Pooh
Shiesty” mask because it was a style worn by a famous rapper with that
name.
While heading into the smoke shop, Jackson was accompanied by his
younger brother, who also is Black and was wearing red pants. Watson noted
that the color red was often worn by gang members in the area. Watson
confirmed that neither Jackson nor his brother did anything that made him
suspect they were a threat before and while they were in the smoke shop.
Watson did not contact Jackson in the parking lot. Rather, he waited
until Jackson and his brother drove away, followed the car for a few minutes,
and then conducted a traffic stop. When Watson contacted Jackson, Jackson
appeared nervous and seemed to be “trying to rush the traffic stop.” In
addition to Watson, three other officers participated in the traffic stop. One
of the officers observed that there was a baseball bat on the floor between the
driver’s seat and the door. According to Watson, when Jackson was asked
about the baseball bat, he provided “multiple answers,” including that the bat
was for baseball, the car belonged to his mother (implying the bat was hers),
and the bat was used for protection. Based on concerns about the baseball
2 There is no indication in the record that Jackson was wearing the ski
mask in a manner to conceal his identity.
3
bat, the ski masks, the brother’s red pants,3 and the fact that Jackson
admitted he lived in an apartment complex with a history of violence,4
Watson asked the brothers to get out of the car to allow for a pat-down search
and to search for weapons inside the vehicle to ensure officer safety. During
the subsequent search, officers located an unregistered loaded firearm in the
center console.5
At the conclusion of the preliminary hearing, the trial court denied
Jackson’s motion to suppress after finding that Watson’s search of the car
was lawful. The court held Jackson on count 1. The People subsequently
filed an amended felony complaint.
Jackson then filed a motion for relief under the Racial Justice Act.
Jackson argued that Watson’s actions and speech demonstrated racial bias
against him. Jackson asserted that the stop was the result of mistaken
assumptions based on the neighborhood where Jackson lived and the clothes
he and his brother were wearing. Jackson submitted evidence that he and
his brother had been pulled over multiple times by the same officers for the
same tinted windows, but they never received a citation for the window tint.
3 Watson testified that the Skyline neighborhood is a territory claimed
by the criminal street gang called Skyline Piru, which is a blood set with
gang members often wearing the color red. Watson admitted that he did not
know for sure if Jackson or his brother were active members of Skyline Piru,
but he “knew there was a possibility due to the red coloring of the pants that
[Jackson’s brother] was wearing.”
4 Watson testified that Jackson and his brother were returning to
Meadowbrook Apartments, which he knew to be “a violent complex to live in,”
and Watson had “personally arrested or been involved in the arrest of at least
six people in or around that complex that were in possession of firearms.”
5 While interacting with Jackson during the traffic stop, Watson referred
to Jackson as “boss,” “man,” and “bro.” That said, at times, Jackson referred
to Watson as “bro.”
4
Further, Jackson’s mother stated that the same officers had pulled over her
sons multiple times and harassed them.
Jackson supported his petition with statistical evidence demonstrating
that SDPD officers disproportionately conduct traffic stops and searches on
Black and Latino residents and focus their “saturation patrols” on minority
neighborhoods. The statistics also showed that 26 percent of all use of force
incidents by the SDPD between 2016 and 2020 were against Black people,
who make up 6.2 percent of the population in San Diego. Thus, Black people
in San Diego were subject to force by the SDPD 4.6 times as often as white
people. Data also showed that, once stopped by the police, Black people were
searched 2.6 times as often as their white counterparts. Regarding traffic
stops of Black people, 37 percent of stops by the SDPD were for equipment
stops and 12 percent were for license/registration stops compared to
20 percent and 7.7 percent of the stops respectively for white people. And
72 percent of the SDPD stops of white drivers was for moving violations, but
only 51 percent of stops of Black drivers was for that same reason. Once
stopped, Black people were arrested 1.7 times as often as white people, and
they were also 1.5 times as likely to be released with a warning or no action
taken. Additionally, statistics were offered showing that although Black
people make up only 6.2 percent of the population of San Diego, they
comprised 23 percent of all people stopped between 2018 and 2020. Finally,
data showed that 74 percent of the officers who made stops of Black people
did so at rates that were higher than the proportion of Black people in the
areas that they patrol.
Jackson also presented evidence of a recent traffic stop by some of the
same officers involved in his traffic stop that followed a similar pattern of
stopping a suspected gang member’s car for tinted windows as an alleged
5
pretext to question the driver and search for illegal items. Additionally,
Jackson offered media interviews and newspaper articles to show that San
Diego law enforcement was aware of the various studies showing
discrimination and racism but ignored such studies.
The People opposed Jackson’s motion, contending that Jackson did not
provide evidence indicating that any of the officers exhibited bias or animus
toward Jackson or his brother based on their race, ethnicity, or national
origin. The People also cautioned the court to avoid imputing implicit bias
onto the officers based on the statistics, data, and articles Jackson submitted
in support of his motion.
The court held an initial hearing on the motion to determine whether
Jackson established a prima facie showing of a Racial Justice Act violation to
warrant an evidentiary hearing. At the prima facie hearing, Jackson’s
counsel argued that Jackson had met his burden and focused the court on the
gang saturation units, the SDPD’s concentration on certain areas in
San Diego, and the ongoing harassment by the officers of Jackson and his
brother. Defense counsel also emphasized that the officers allowed Jackson
to go into the glove compartment during the traffic stop and argued that none
of the officers were “scared of him.” Further, Jackson’s counsel pointed the
court to the statistics that he had submitted regarding the difference in
traffic stops for minorities compared to white individuals.
In response, the People argued the court should give the statistics
provided by Jackson “very little weight in assessing whether [Watson] on this
occasion exhibited bias against [Jackson].” The People further asserted that
the court should simply focus on Watson’s actions and not use any of the
statistical information to explain Watson’s determination to pull over
Jackson and then search the car. The People reiterated that Watson and his
6
fellow officers conducted a legally valid stop and were justified in searching
the car.
The trial court asked the People about the need to consider implicit
bias, specially referencing Bonds v. Superior Court (2024) 99 Cal.App.5th 821
(Bonds). The People replied that “it simply doesn’t have enough weight, in
light of the actual facts of this case, to raise more than a mere possibility that
there was bias at issue here.”
The court then asked the People if it could weigh the evidence at the
prima facie stage, and the People correctly acknowledged that the court could
not do so.
After the court and the People discussed the facts in Bonds, the court
noted that it did not see “any statement or anything that the officer said or
did that indicated explicit bias” in the instant matter. The court then asked:
“So the question I have to keep coming back to based upon
the direction from the Fourth DCA Justice Dato, who wrote
the opinion, is how can this court—how can the trial court
determine whether there was implicit bias on the part of
the officer when the officer was making this stop?”
The People answered the court’s inquiry by emphasizing that implicit
bias “is a very difficult question to assess.” The People then acknowledged
that they were not sure how it could be proved and cautioned the court not to
impute bias on Watson based on what other officers might have done on other
occasions. The People further asserted:
“So it is very difficult to discern that implicit bias, but
that—that doesn’t necessarily render that evidence as
proof. If it doesn’t have the proper weight or proper
showing for it, then the Court, I think, doesn’t have to,
again, make this logical jump of imputing it to this
particular officer on this occasion.”
7
Jackson’s counsel then argued that it was clear that the SDPD officers
treat different areas of San Diego differently. She urged the court to review
Watson’s actions, noting that he watched Jackson and his brother enter the
smoke shop and emphasized that Watson had previous contact with Jackson
and his brother. Moreover, defense counsel acknowledged that both men had
masks on their faces, but Watson later acknowledged that the masks were
like one worn by a famous rapper. The court found the wearing of the masks
“weird” especially because it was summer.
Jackson’s counsel posited that Jackson and his brother were wearing
the masks because they were fans of the rapper. She then summarized her
argument as follows:
“Not one patrol vehicle pulls over someone for tinted
windows, but two do. Not one officer goes up to the side
and says, ‘You need get your windows fixed. They’re tinted.
Give me your license and registration.’ Four do.
“Why would the passenger need to be talked to who they’ve
already seen, who they know is there—they know there’s
no one else in the car—for a tinted window? Why would
they not write the ticket? Why do they start asking
questions about the rapper, drugs, guns, instead of just
walking through with the ticket?
“And I think that the totality of the circumstances plus the
fact of the area that they’re in their headquarters SDPD
tells them is a high gang area, and that this particular
group of people is a gang saturation team in this area all
builds together this implicit, unconscious bias they may not
be aware of, that these two young black men who are
checking all the boxes of concern might be lying about
what’s in their vehicle, which leads them, I think, to insist
on a search over a bat, when there’s no other reason to
search the vehicle at that point. Nothing that they have
done would say ‘We’re worried about you. You should
search the vehicle.’ It’s who they are.
8
“And, again, I think that for purposes of the prima facie,
that addresses this Court’s concern on ‘How can I sit here
and wonder what was in the mind of his officer?’ ”
The court was not persuaded and denied Jackson’s motion, explaining:
“In this case, as I—we discussed with the attorneys, the
Court—the facts are really not in dispute. The officers
made some observations. They observed the defendant
driving in a vehicle that had tinted windows. They
observed the defendant go into a smoke shop, wearing some
sort of a mask, come out of the smoke shop. The officers
then stopped the vehicle some distance away for the
violation of the tinted windows. While the officers were at
the car, the officers observed the bat and then thereafter
conducted a search.
“At this point, the Court does not find that the defendant
has met the prima facie standard, that the—basically, the
defendant is concluding or making—concluding that based
upon this, that the officer’s actions were racially motivated.
Therefore, the motion at this point is denied.”
Jackson then filed a petition for writ of mandate in this court. In
response, we requested an informal response from the People. The People
filed an informal response, and we issued an order to show cause why relief
should not be granted. The People opted to file a return, and Jackson filed a
traverse.
DISCUSSION
The Racial Justice Act, which is codified in three interrelated statutes
(§§ 745, 1473, subd. (f), 1473.7, subd. (a)(3)), 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
Racial Justice Act 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.
9
Bill No. 2542 (2019–2020 Reg. Sess.) § 2, subd. (i) (Assem. Bill 2542).) The
Legislature’s goal was “to provide remedies that will eliminate racially
discriminatory practices in the criminal justice system, in addition to
intentional discrimination.” (Assem. Bill 2542, § 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., subd. (i).)
The Racial Justice Act 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).) The first of those categories is relevant here.
Specifically, a violation exists when “(1) [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.” (Id., subd. (a)(1).)
When a defendant files a motion in the trial court alleging a violation of
the Racial Justice Act, the first step is for the trial court to determine
whether the defendant has made “a prima facie showing of a violation.”
(§ 745, subd. (c).) The statute specifically defines “ ‘[p]rima facie showing’ ” to
mean “that the defendant produces facts that, if true, establish that there is a
substantial likelihood that a violation of subdivision (a) occurred.” (Id.,
subd. (h)(2).) The statute further states that “a ‘substantial likelihood’
requires more than a mere possibility, but less than a standard of more likely
than not.” (Ibid.) Moreover, “a defendant seeking relief under the Racial
Justice Act must state fully and with particularity the facts on which relief is
sought, and include copies of reasonably available documentary evidence
10
supporting the claim. The court should accept the truth of the defendant’s
allegations, including expert evidence and statistics, unless the allegations
are conclusory, unsupported by the evidence presented in support of the
claim, or demonstrably contradicted by the court’s own records. . . . [T]he
court should not make credibility determinations at the prima facie stage.”
(Finley v. Superior Court (2023) 95 Cal.App.5th 12, 23 (Finley), citation & fn.
omitted.)
Once a defendant makes a prima facie showing, the trial court proceeds
to determine whether the defendant has met “the burden of proving a
violation of subdivision (a) by a preponderance of the evidence.” (§ 745,
subd. (c)(2).) The applicable remedies are set forth in subdivision (e) of
section 745.
In an appeal from a trial court ruling that a defendant failed to make a
prima facie showing of a Racial Justice Act violation, we apply a de novo
standard of review. (Cf. People v. Flores (2023) 96 Cal.App.5th 1164, 1170 [de
novo review of whether a prima facie case has been made in a petition for
resentencing under § 1172.6].)
As a threshold matter, the People argue that writ relief is not
warranted here because no extraordinary circumstances exist. Specifically,
they claim the instant writ does not present any significant legal issues, and
Jackson has an adequate appellate remedy. We are not persuaded.
The Racial Justice Act is a fairly new piece of legislation and cases
interpreting it typically require courts to grapple with novel issues of law as
they consider how best to implement the act. As this court pointed out,
“[a]ppellate decisions interpreting it are, as yet, few.” (Bonds, supra, 99
Cal.App.5th at p. 828.) Thus, it is not surprising that several appellate
courts, including this one, have found writ review appropriate in addressing
11
issues raised under the Racial Justice Act. (See, e.g., Young v. Superior
Court (2022) 79 Cal.App.5th 138, 169–170 [writ of mandate issued directing
the superior court to vacate its discovery order that denied petitioner’s
discovery motion brought under the Racial Justice Act]; Finley, supra, 95
Cal.App.5th at pp. 16, 25–26 [writ of mandate issued vacating the superior
court’s denial of a motion pursuant to the Racial Justice Act because the
lower court had incorrectly conflated the varying burdens of proof outlined in
the act]; Bonds at pp. 830–831 [writ of mandate issued directing the trial
court vacate its denial of petitioner’s Racial Justice Act motion after
determining that the trial court applied the wrong legal standard in
considering that motion]; Mosby v. Superior Court (2024) 99 Cal.App.5th 106,
133 [writ of mandate issued vacating the lower court’s denial of petitioner’s
request for a hearing, after determining petitioner had indeed met his burden
and could proceed to an evidentiary hearing].) Because of the act’s newness
and the lack of sufficient authority addressing a petitioner’s burden at the
prima facie stage to establish the likelihood of implicit bias, we believe the
instant matter involves both a significant and novel legal issue.
In addition, Jackson claims that the traffic stop and search of the car
he was driving were the product of implicit racial bias. Thus, his motion
under the Racial Justice Act could result in the gun being suppressed. In this
sense, if the instant writ is resolved in Jackson’s favor and we remand the
matter back to the trial court to reconsider Jackson’s motion, a chance exists
that the trial court will grant Jackson’s motion, the gun will be suppressed,
and the possession of a firearm offense would be dismissed. Accordingly,
Jackson would not have to stand trial.
We acknowledge, as the People contend, that if we do not act on the
instant writ, Jackson still has the right to appeal this issue if he is convicted.
12
However, it would be a waste of resources to allow the trial to proceed if it
should have never occurred in the first place, especially when the issue to be
determined is fully briefed before us. We therefore shall exercise our
discretion and address the instant writ on the merits.
Here, there is no argument that Watson or the other police officers
exhibited any explicit bias. Rather, the focus of our inquiry is on the possible
presence of implicit bias. Specifically, did Jackson make a prima facie
showing of a violation of the Racial Justice Act, which requires him to
produce facts that, if true, establish that there is a substantial likelihood that
Watson’s actions (or that of his fellow officers) were motivated by implicit
bias? As set forth ante, the statute defines a substantial likelihood as more
than a mere possibility but less than a standard of more likely than not.
(§ 745, subd. (h)(2).)
In his petition, Jackson argues the trial court erred in failing to
conclude that it satisfied his burden. To this end, he claims the court failed
to consider statistical evidence of racially biased policing within the SDPD
and improperly found that Watson’s behavior was not motivated by implicit
bias.
In response, the People contend that the trial court correctly found that
Jackson had not satisfied his prima facie burden. Moreover, they assert that
Jackson is improperly using the facts and expert opinions in Bonds, supra, 99
Cal.App.5th 821 to bolster his arguments here.6 Although we do not share
the People’s concern about Jackson misusing Bonds, we agree with the
6 In Bonds, we issued a writ directing the trial court to conduct a new
evidentiary hearing under the Racial Justice Act to consider whether the
officer who initiated and conducted the traffic stop of the petitioner exhibited
implicit bias based on race. (Bonds, supra, 99 Cal.App.5th at p. 824.)
13
People that some key differences between Bonds and the instant matter
exist.
For example, in Bonds, the trial court agreed with the petitioner that
he had satisfied his burden at the prima facie stage and set the matter for an
evidentiary hearing. (Bonds, supra, 99 Cal.App.5th at p. 826.) Therefore, it
is not surprising that the evidence the trial court considered in Bonds was
more robust and developed than the evidence considered at the prima facie
stage in the instant matter. Indeed, as the People point out, the petitioner in
Bonds offered the testimony of three experts as well as the arresting officer’s
testimony and statistical evidence. (See id. at pp. 826–827.) We acknowledge
that Jackson discussed Bonds at length in his petition and compares the
evidence he offered below with the evidence the experts considered in Bonds.
However, we will not consider the testimony of the experts in Bonds as if
those same experts testified at Jackson’s prima facie hearing below.
Another important difference between Bonds and the instant matter is
that the trial court granted an evidentiary hearing in Bonds. As such, it
weighed the petitioner’s evidence. In doing so, the court concluded “that
aggregate statistics about a police department were entitled to little weight
because ‘there is no way for a court to draw . . . conclusions [about an officer’s
state of mind] from general statistics without speculating whether a
particular officer’s conduct on a specific occasion falls within those statistics
and any conclusions based on such statistics.’ ” (Bonds, supra, 99
Cal.App.5th at p. 827.) In the instant matter, the court could not weigh any
of the evidence Jackson offered. (See Finley, supra, 95 Cal.App.5th at p. 23.)
In Bonds, the trial court ultimately denied the petitioner’s motion
under the Racial Justice Act. (Bonds, supra, 99 Cal.App.5th at p. 827.) We
found fault with the trial court’s approach because there was no indication in
14
the record that the court considered, as required by the Racial Justice Act,
that the arresting officer could have been motivated by implicit bias. Rather,
the court simply concluded that the officer “could not exhibit racial bias
unless he ‘knew’ the race of the vehicle’s occupants before initiating the stop.”
(Id. at p. 830.)
In contrast to the trial court in Bonds, the trial court here specifically
noted the issue before it was whether Jackson carried his prima facie burden
to show that the actions of Watson and/or the other officers were motivated
by implicit bias: “[H]ow can the trial court determine whether there was
implicit bias on the part of the officer when the officer was making this stop?”
Thus, the issue before us here is at least somewhat different than what we
grappled with in Bonds.
That said, in Bonds, we discussed at length the importance of providing
relief to victims of implicit bias:
“Whatever may be uncertain about the Racial Justice Act,
there are a few things that are abundantly clear. Perhaps
most obvious is that the Racial Justice Act was enacted to
address much more than purposeful discrimination based
on race. Indeed, the primary motivation for the legislation
was the failure of the judicial system to afford meaningful
relief to victims of unintentional but implicit bias. In an
uncodified section of Assembly Bill No. 2542 (2019-2020
Reg. Sess.), the Legislature explained, ‘Implicit bias,
although often unintentional and unconscious, may inject
racism and unfairness into proceedings similar to
intentional bias. The intent of the Legislature is 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.’ (Stats. 2020, ch. 317, § 2, subd. (i) [uncodified],
italics added.)” (Bonds, supra, 99 Cal.App.5th at p. 828.)
We further noted that “implicit bias is, by definition, unintentional and
unconscious.” (Bonds, supra, 99 Cal.App.5th at p. 829.) Thus, “implicit bias
15
can appear at multiple levels. Certainly, an officer (or other participant in
the criminal justice process), observing that a defendant is Black, could
‘unintentionally’ treat them differently.” (Ibid.) Moreover, we observed that
“implicit bias can manifest itself in other ways based on unstated or even
unconscious assumptions.” (Ibid.)
We recognize that our discussion of implicit bias in Bonds did not
provide a bright line test to apply to every inquiry into the possible existence
of implicit bias in response to a Racial Justice Act motion. This is because
the very nature of such unintentional and unconscious bias does not lend
itself to a simple, one size fits all analysis. As the trial court and the People
acknowledged below, ferreting out the existence of implicit bias is a
herculean task that involves careful consideration of a variety of types of
evidence, often including data and statistics, in search of the probability that
an actor was motivated by implicit bias. And although this clearly is an
arduous task, it is not impossible. However, this type of inquiry requires a
case by case approach based on the unique evidence offered.
Thus, we now turn to the evidence Jackson presented. Initially, we
note that the trial court commented that “the facts are really not in dispute.”
In addition, there is no indication in the record that any evidence provided by
Jackson was excluded. Further, the People do not make any arguments that
the evidence proffered by Jackson was inadmissible. We therefore will
consider all the evidence Jackson submitted in response to his motion under
the Racial Justice Act and assume that the trial court considered that
evidence.
We begin with the statistics and data Jackson proffered. We note that
the data provided by Jackson clearly shows a stark disparity in the treatment
of Black people pulled over by the SDPD compared to white people. For
16
example, once stopped by the police, Black people were searched 2.6 times as
often as their white counterparts. Regarding traffic stops of Black people, 37
percent of stops by the SDPD were for equipment stops and 12 percent were
for license/registration stops compared to 20 percent and 7.7 percent of the
stops respectively for white people. And 72 percent of the SDPD stops of
white drivers was for moving violations, but only 51 percent of stops of Black
drivers was for that same reason. Once stopped, Black people were arrested
1.7 times as often as white people, and they were also 1.5 times as likely to be
released with a warning or no action taken. Additionally, statistics were
offered showing that although Black people make up only 6.2 percent of the
population of San Diego, the comprised 23 percent of all people stopped
between 2018 and 2020.
The People acknowledge this statistical evidence but note that Jackson
did not provide a “correlating declaration from the person who generated
these findings, nor any other expert declaration at all.” The People further
argue that because of the absence of any such supporting declarations, “[t]he
trial court . . . would have been well within its gatekeeping function . . . to
disregard [these statistics] as conclusory or made without explanation.” Yet,
the People’s argument appears to not be of the moment as they concede that
the court “consider[ed] all of the proffered evidence” and “accept[ed] the truth
of the statistics.”
Moreover, the statistical evidence presented by Jackson seems to be
the type contemplated under the Racial Justice Act to be helpful to the court
in analyzing a claim of implicit bias. (See Bonds, supra, 99 Cal.App.5th at
pp. 830–831 [“in section 745, subdivision (c)(1), the Legislature has
specifically provided that ‘reliable, statistical evidence, and aggregated data
are admissible for the limited purpose of determining whether a violation of
17
subdivision (a) has occurred’ ”].) Although we agree with the People that the
statistical evidence alone would not be sufficient to show Watson’s and/or his
fellow officers’ stop and search of Jackson was the product of racial bias (see
Bonds, at p. 831), the data provided a lens through which the trial court
should have viewed the other evidence provided by Jackson, especially at the
prima facie stage.
Watson pulled over Jackson because the car he was driving had
illegally tinted windows. In other words, the stop was based on an equipment
problem with the car. The data shows that Jackson, as a Black man, was
significantly more likely to be pulled over by the SDPD for an equipment
problem with the car than a white driver. Further, once pulled over, the data
showed that the police were much more likely to search Jackson and the car
he was driving. Additionally, during the traffic stop, Jackson stated that he
had been pulled over by “y’all”7 “like eight times.”8 Further, Jackson
7 It is unclear if Jackson was stating that Watson had pulled him over
eight times before, some combination of the four officers on the scene had
pulled him over eight times, or that simply the police had pulled him over
eight times. However, at the very least, Jackson’s comments suggest that
Watson had previously pulled him over.
18
submitted evidence that his brother had been pulled over by the police three
to five times between 2022 and August 2023. His brother indicated that
Jackson was with him on at least one of those prior times. And Jackson’s
brother stated they were pulled over because of the tint of the car’s windows.
During the various traffic stops, the police would ask Jackson’s brother about
his tattoos and whether he was affiliated with a gang. Jackson’s brother also
said that if he asked the police questions, they would accuse him of being
aggressive.
Jackson also presented a statement by his mother. Among other
things, she stated that the same officers at issue in the instant matter had
pulled over her sons “about five times in 2022” while they were driving her
car because of the tint of the car’s windows. And it is undisputed that neither
8 The People note that Jackson’s claim that he had been pulled over eight
times is contradicted by Watson’s statement that he had never met Jackson
before, which is contained in the transcription of the officer’s body camera.
They further argue that because Jackson submitted the transcript, he
submitted contradictory evidence. Relying on Finley, supra, 95 Cal.App.5th
at page 22, the People then claim that the caselaw does not explain what a
trial court should do with such evidence at the prima facie stage but contend
the “better rule would be to have the trial court to consider both of the
conflicting proffered facts as ‘unsupported by the evidence presented in
support of the claim,’ or at least consider those ‘facts’ neutralized in the
prima facie determination, since credibility determinations cannot be made
at the prima facie state.” We disagree with the People’s suggested approach.
At the prima facie stage, the court is not to engage in credibility
determinations or the weighing of evidence. (Finley, at pp. 23–24.) But that
is precisely what the People are suggesting that the trial court should have
done. That method is beyond what is permitted at the prima facie stage
under the Racial Justice Act. (See id. at p. 24 [“At the prima facie stage, the
trial court should have focused on the accuracy and significance of Finley’s
proffered facts, rather than weighing his evidence against Officer Gunn’s
contrary preliminary hearing testimony”].)
19
Jackson nor his brother have been ticketed for driving the car with illegally
tinted windows.
This evidence of multiple previous stops of Jackson and his brother for
driving a car with tinted windows, which should be accepted as true at the
prima facie stage, combined with the statistical evidence gives us pause. In
other words, although perhaps not the strongest case of the possibility that
Watson’s and/or his fellow officers’ actions were the product of implicit bias,
we think the evidence sufficient to at least warrant an evidentiary hearing
under the Racial Justice Act.
Our conclusion is buttressed by other evidence offered by Jackson. For
example, the police officers were engaged in saturation policing in what they
believed to be a high crime area. They observed two Black men (Jackson and
his brother) enter the smoke shop. The police noticed Jackson’s brother’s red
pants and speculated that they might be gang members, specifically they
might be members of the Skyline Piru, a blood set gang. This speculation is
consistent with the police’s previous interactions with Jackson’s brother
where they repeatedly questioned his gang involvement. Further, this
speculation appears to be linked to the fact that Jackson’s brother is Black.
Further, after pulling over Jackson and his brother in the instant
matter, we note that Watson did not ask Jackson about the tinted windows
but instead focused on whether Jackson had any weapons or drugs in the car.
And Watson testified that he became more concerned when he discovered
that Jackson and his brother lived in “a violent apartment complex” where
Watson had “arrested or been involved in the arrest of at least six people in
or around that complex” who “were in possession of firearms.”
But Watson admitted during cross-examination that he did not “see
anything specific about a gun being in [the car],” and he lacked any
20
knowledge prior to pulling Jackson over that he had possession of a gun.
Moreover, even though Watson acknowledged that the bat in the car led him
to believe that there might be other weapons in the car, he stated that
Jackson offered to move the bat for Watson. And despite the officer’s claim
that the car needed to be searched for the safety of the officers, Watson
allowed Jackson to go into the glove compartment to obtain the car’s
registration.
Finally, we note that Watson seemed suspicious of Jackson because
Jackson was nervous and shaking. Indeed, after the second time Watson
asked Jackson if there were any guns in the car and Jackson responded in
the negative, Watson observed, “All right, ‘cause, ‘cause your hands are really
shaking. You seem nervous right now.” Jackson tried to explain his response
to being pulled over, “ ‘[C]ause y’all just make me shaky ‘cause I know I’m
being pulled up for no reason all the time.” On cross-examination at the
preliminary hearing, after Watson testified that sometimes people are
“happy” to be pulled over by him, Watson and defense counsel engaged in the
following exchange:
“Q. In your experience, is it unusual for people to appear
nervous?
“A. For their hands to be visibly shaking, yes, that is
unusual.
“Q. How—would you say that it is unusual as to the
general population? Or is it unusual when it’s a young
black men?
“[Prosecutor]: Objection, your Honor. Argumentative.
“THE COURT: Overruled.
“The witness: It could be anybody.”
21
Therefore, despite admitting that he has conducted hundreds of traffic stops
and engaged in saturation policing in high crime areas, Watson seemed
unaware that Black men might have reason to be nervous when interacting
with police officers, especially after being pulled over and confronted by four
officers ostensibly for driving a car with illegally tinted windows.
Considering Watson’s experience, his stated lack of awareness of this issue
further raises the potential that implicit bias played a role in his decision to
stop and search the car Jackson was driving.
Against this backdrop, we are persuaded that Jackson did enough to
show there is a substantial likelihood of a violation of the Racial Justice Act
as set forth in section 745, subdivision (h)(2). Thus, we believe the prudent
course is for the trial court to grant an evidentiary hearing and consider
anew Jackson’s motion under the Racial Justice Act. We express no opinion
whether the court should find a violation of the Racial Justice Act after
holding such an evidentiary hearing.9
DISPOSITION
Let a writ of mandate issue directing the superior court to vacate its
order denying Jackson’s motion for relief under the Racial Justice Act and to
hold an evidentiary hearing under section 745, subdivision (c).
9 Additionally, the People insist that, in the petition, Jackson is offering
himself as an expert witness, without any qualifications whatsoever, on
issues of racial bias in policing. We do not consider Jackson’s arguments in
his petition as a request to treat him as an expert witness, nor do we consider
him to be an expert witness. However, Jackson is certainly qualified to
explain his dealings with the SDPD.
22
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
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