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Court of Appeal:
Bare Objection Insufficient for Racial Justice Act Claim
Opinion Says Objecting to Statements Made by Prosecutor in Closing, Including Characterizing Facebook Post as Defendant ‘Holla[ing] at’ White Women, Did Not Preserve Issue for Appeal
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held Friday that a Hispanic defendant forfeited his claim under the Racial Justice Act of 2020 relating to comments made by a prosecutor about a Facebook post—written in Spanish—which was characterized as showing the accused at a bar “wondering where all the white ladies were at” as defense counsel’s bare objection was insufficient to raise a challenge under the statute.
Penal Code §745(a)(2), enacted as part of the Racial Justice Act (“RJA”), provides that “[a] violation is established if the defendant proves” that “[d]uring the defendant’s trial…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….”
Appealing his judgment of conviction was Freddy Rivera Corbi, who was found guilty by a jury of the second-degree murder of Lazaro Orozco in the summer of 2019. Corbi argued self-defense at trial, presenting evidence that he got “banged a lot” in high school—meaning he would suffer beatings for not being in a gang—and began carrying a gun after an altercation during which he suffered serious cuts to his wrist from a broken bottle.
Video footage from a streetlight camera on the night of the killing showed Orozco approaching Corbi and lifting his shirt to show gang tattoos. After Orozco raised his arms and puffed out his chest, the defendant fired several fatal shots.
At trial, evidence from a Facebook profile created by the defendant after the killing was introduced by the prosecution to establish the defendant’s membership in a gang and to show a lack of remorse. One post showed Corbi making the letter “D” with his hands and is captioned with “Papas n beer OMW #holla at wueritas.”
A detective testified that he understood “wueritas” to mean “white girls.” Corbi admitted on the stand that he posted the picture when he was in Mexico following the shooting and that he did not look remorseful in the photograph.
Closing Argument
During closing, the prosecutor said:
“[T]his 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….This is the no remorse.”
He added:
“Shooting someone dead in the street, going on a holiday in Mexico, drinking at Papas & Beer, looking for white women, brazen.”
Defense counsel objected after closing, saying:
“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.”
San Diego Superior Court Judge Runston Maino remarked, “Whether it should be argued or not is something else” but reasoned that the record supported the statement, saying”
“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.”
On appeal, Corbit argues, among other things, that the prosecutor violated the RJA by repeatedly referencing his alleged interest in white women.
Justice William Dato wrote the opinion affirming the judgment of conviction. Dato concluded that even assuming an RJA claim may be raised by a simple oral objection, the challenge here did not mention the act by name and so did not alert the court that the statement was being challenged specifically for being racially discriminatory and, as such, the claim was forfeited.
Acting Presiding Justice Terry B. O’Rourke and Justice Martin N. Buchanan joined in the opinion.
Objection Raised
Arguing that his timely objection to the prosecutor’s comments was sufficient, the defendant cited case law finding that an objection made immediately after closing argument asserting prosecutorial error for commenting on a defendant’s failure to testify was sufficient to preserve the claim on appeal.
Addressing this contention, Dato wrote:
“[O]nce 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…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.”
He continued:
“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 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 [the RJA] by appealing to implicit biases about interracial relationships.”
The case is People v. Corbi, D081490.
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