The Path to Racial Injustice Relief is Found on this Page
Racial injustice occurs if race was a factor in how your case was handled by the government.
Also, if you are here for a loved one, this information is equally useful to you. Not to take away from your incredible strength and bravery, but for the sake of simply reducing text, when speaking of “you” that is intended to include a loved one acting on behalf of the person that would be the “you”.
Road Map Checklist for Racial Injustice
The correct path to take depends on certain factors (read each carefully):
Not in custody:
- Case is fully over. (Meaning you are: no longer on parol or probation; not in prison or jail; not in jail pending trial; not awaiting trial.) Then you will be filing a motion under Penal Code sec. 745
- Any time after charges filed and before sentencing, then you are actually in #4 below.
- After arrest only, no case filed yet. You cannot file habeas corpus nor a motion as discussed below, but if they do eventually file charges then you can follow #4 below. Regardless, you may also have a law suit you can file now under 42 U.S.C. sec. 1983 and 1981 and possibly 1985. You have two years from the arrest. Unless charges are filed, then the time stops until you win in some form, then time starts again; (legally called “tolling”).
In custody:
- (A.) Case is complete (sentenced and not on appeal) (B.) and you are: on probation; on parole; in jail; in prison. (C.) Then you will be filing a petition for habeas corpus Penal Code sec. 1473(e) and using the factors in Penal Code sec. 745.
- Case is complete (sentenced and on appeal) same as (1.B) (D.) if not a death penalty case then you will be filing a motion under Penal Code sec. 745.
- If a death penalty case and on appeal, then the California Supreme Court just made it very confusing and not clear, see People v. Wilson (2024) 323 Cal.Rptr.3d 790, 861, it could be a motion or could be habeas corpus. Appointed counsel will have to balance the factors based on Wilson. They will also want to read Mosby v. Super. Ct. of Riverside Cty., (2024) 317 Cal.Rptr.3d 658; and Finley v. Superior Court (2023) 95 Cal.App.5th 12. The remainder of this page will still provide guidance and help.
- Case is not complete: (whether trial has not happened yet; or even if after verdict but not sentenced yet; if simply out on bail or even released on your own recognizance) all of those technically make you in custody. Then you will be filing a motion under Penal Code sec. 745.
Remedies for Racial Injustice
Remedy means the method to obtain the relief desired. You can read a quick explanation of remedies on this page.
Here were are discussing two remedies: habeas corpus and a motion.
Normally a motion is not an independent remedy, but when a statute declares it is, then it can be. See People v. Picklesimer, (2010) 48 Cal.4th 330, 337 and footnote 2.
A brief overview of habeas corpus
Habeas corpus is an ancient remedy with a very long history and its function has changed over time. Modernly it is a catch-all for any one that is in any form of custody.
This history makes it also very confusing. The statutes were written in the 1800s, using outdated language and a method of procedure we don’t normally apply. The Rules of Court also do not give much guidance. What that results in, is a set of rules that are found only in case law. And that makes it very difficult and dangerous, because it is hard to find them.
Further complicating the matter is that two different rules apply depending on if it is death penalty (capital case) or non-death penalty (noncapital case). Case law sets out numerous procedural bars, traps that if you do not address, the courts will declare you lose on that basis and not based on your presentation of the heart of the violation.
A very good case that explains habeas corpus compared to the writ of mandamus is People v. Romero (1994) 8 Cal.4th 728. (That is not the usual Romero case used for striking a strike.) I did not fully understand either until reading that case, so its very useful to understand the process. Read all of section II starting on page 737. Written by Justice Kennard, she was one of the greatest legal minds of modern times.
The other important case to read is People v. Duvall, (1995) 9 Cal.4th 464, 474. That case reviews the procedural bars and explains what the People are obligated to do after you file your habeas petition.
A writ is simply an order of the court. So you are petitioning (asking) for the court to issue its writ. In habeas corpus, the writ serves one purpose only: to bring the prisoner before the judge. Modernly, that is a hassle for the courts so they do not usually issue a writ. Instead, they issue an order to show cause; which means the government must either grant the relief or give reasons why it should not have to. Romero explains this process, and why you must read it.
Snap shot of Habeas Corpus
This is what the typical process involves, in its most basic form:
- You prepare a petition for a writ of habeas corpus using form HC-001.
- The court reads it and if you presented enough facts to support a valid reason, then the court is obligated to issue the writ or an order to show cause. Romero, Duval, Rules of Court, Rules 4.551(c) (trial courts); 8.385(d) (courts of appeal).
- The People can either agree, or set forth reasons, supported by facts, Duvall, to justify why the relief should be denied.
- You can then explain why the People are wrong. You can either adopt the original petition or set out new facts and argument, Romero.
- If the People do not address any of your issues, then if relief available you win. If you do not address any of their issues, you lose on that issue.
- If there are factual disputes, a court may hold an evidentiary hearing to resolve the disputed fact.
- If no hearing required or after the hearing, the judge then decides if you have proven your case and if as a matter of law you are entitled to the relief prayed for.
- If the judge says no, then denied. If the judge says yes, then you get the relief prayed for.
Snap shot of a Motion on Racial Injustice
A motion is similar, except without the formalities:
- You prepare a motion on pleading paper, setting out the facts and law. And set it on calendar.
- The People file a response.
- You file a Reply.
- The judge then reads both and hears argument. If need be, an evidentiary hearing is held.
- If the judge feels that you have met your burden of proving the violation and the People have failed to meet their burden then the court grants the relief as prayed for.
Relief as Prayed for Racial Justice
You may have noticed that it was repeatedly stated above: relief as prayed for.
Prayed for relief is simply an old phrase still currently in use. But the premise behind it is crucial. A prayer tells the court what you want.
A favorite story on point: Oprah was doing her make a wish show– any thing you want, she would give it to you. One lady wished for a new car, and Oprah gave it to her. The second lady wished for a new four bedroom house, and Oprah gave it to her. The first lady became very upset that all she got was a new car and it wasn’t fair. The response was: You were told you could have anything you wanted, you asked for a new car, she asked for a new house.
If you do not pray for the relief you really want, then you will not be awarded it. The more detailed your prayer the better. And you can ask for things in the alternative. If the court is not inclined to grant X relief, then we would ask for Y relief. Set out all the options that are lawful for a court to grant. And most importantly, the final item always prayed for is: And whatever other relief the court deems fair and just.
That allows the court wiggle room if there was some issue unforeseen and let’s the court switch gears if it thinks you were right but for reasons not stated or prayed for.
Relief can be in the forms of, for example:
- A new trial;
- Reduced bail;
- Dismissal;
- Release from custody;
- Vacating the conviction;
- Finding of innocence;
- And so many other possible options.
A great example from the above as to why we always end with whatever other relief, is you may desire relief to be released from custody. But if you did not ask to vacate the conviction, technically you cannot be released (unless your issue is you already served your sentence).
What you Need to Prove to establish Racial Injustice
If you are not a member of the Black race then these pages can still give you guidance. Given the incredible abuses that California is engaged in against those belonging to the Black race, these pages were primarily geared towards addressing those circumstances. But still lays out the rules well for any race or ethnicity unlawfully caused suffering because of their genetic traits.
Motions
This article explains the basic structure of a motion and memorandum.
Habeas
Habeas corpus is formatted the way courts want in form HC-001. But because you can add extra pages, I have created a template in Word so that it matches the general look and font of the judicial council form.
Elements to Prove
The elements of how to prove Racial Injustice through Pen. Code sec. 745 are laid out in this article.
Which will also establish a rather shocking and unequal treatment of Blacks in our judicial system.
Beyond Pen. Code sec. 745
The result of the shocking data is set out in this article showing a broader constitutional prohibition applies to California’s treatment of Blacks.
To establish the true ratio of treatment against Blacks, it is necessary to understand that Hispanics have always been legally considered part of the White race.
