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Court of Appeal:
Counsel Likening Client to Animal Is Not Reversible Error
Opinion Says Attempt to Overturn Convictions Based on Racial Justice Act Claim Fails Because Words Were Effort to Negate Intent, Court Does Not Have Sua Sponte Duty to Investigate Bias
By Kimber Cooley, associate editor
Div. Two of the First District Court of Appeal has affirmed the attempted murder and related convictions of a Black man who argued that some of his attorney’s statements during trial, comparing his groans during the attack to “growls” and describing his behavior as like that of a “raving animal,” violated California’s Racial Justice Act of 2020.
Finding that the comparisons were made as “part of a tactically developed defense theme designed to negate the intent elements of the most serious offenses charged,” the court found that the doctrine of invited error barred his claim. Justice Tara M. Desautels, writing for the court, said:
“Consistent with the [Racial Justice Act’s] goal to protect ‘the integrity of the judicial system,’ we hold that [the defendant] is procedurally barred from using his counsel’s tactical decision as a basis for reversal.”
The court also rejected the defendant’s assertion that the trial court bore a sua sponte duty to investigate whether the attorney had a conflict of interest based on racial discrimination after he made the challenged statements, remarking that “[w]e see no reason to create such a[n]…obligation in this case” and “it would have been improper…to interfere with defense counsel’s right to determine trial tactics.”
In November 2020, defendant Robert Midell charged the manager of a San Francisco hotel with a box cutter, stabbing him in the neck near the carotid artery. After the victim, Arvind Gupta, managed to wrestle the weapon out of the attacker’s hands, Midell headbutted him approximately 40 times and repeatedly bit his arms, face, and chest; following his arrest, the defendant attacked correctional officers on two different occasions.
Attempted Murder
Midell was charged with nine counts, including the deliberate attempted murder of Gupta. At trial, video footage from the surveillance cameras at the hotel was played for the jury.
During closing argument, defense counsel—identified in San Mateo Superior Court records as private attorney Ross B. Green—replayed sections of the video, pointing out what he described as “growls,” and argued that “what we have here” is “an impulsive man[,] who when he gets angry,…becomes like a raving animal.”
He added that “[a]s we look at specific intent crimes, you must look to someone’s mindset” and declared:
“We don’t have intent here. We have a person who snaps.” After the jury found him guilty of attempted murder, as well as six other charges, San Mateo Superior Court Judge Lisa Novak repeated the comparison at a sentencing hearing, saying:
“Mr. Midell, watching your vicious attack on the victim in this case on that surveillance video has to be one of the more haunting things that anyone is ever going to see. It was prolonged. It was animalistic….[I]t was unprovoked.”
No defense objection was made to the court’s characterization. Novak sentenced the defendant to seven years to life in prison on the attempted murder count, plus additional time for enhancements and other charges.
Acting Presiding Justice James Richman and Justice Marla J. Miller joined in Friday’s opinion, affirming the judgment in full.
Racial Justice Act
Codified at Penal Code §745, the Racial Justice Act (“RJA”) provides that a party may establish a violation by showing that “[d]uring the defendant’s trial, in court and during the proceedings, the judge, [or] an attorney in the case…used racially discriminatory language about the defendant’s race, ethnicity, or national origin.” Subdivision (e) specifies:
“After a judgment has been entered, if the court finds that a conviction was sought or obtained in violation of [this section], the court shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings….”
Desautels noted:
“According to Midell, his trial counsel’s and the court’s statements ‘comparing’ him to an animal violated the RJA, ‘requiring automatic reversal.’ In fact, Midell argues the animal comparisons sparked a sua sponte duty on the court to investigate his attorney’s potential racial bias that purportedly presented a conflict of interest.”
Rejecting these assertions, the jurist said:
“[B]ecause counsel’s deliberate and repeated use of language likening Midell to an animal both during trial and in closing argument forms the cornerstone of the defense case….[,] we must conclude that Midell’s RJA claim arising out of that strategic conduct is barred by the doctrine of invited error and Midell’s RJA claim based on the court’s comment is forfeited for failing to object.”
Invited Error
Saying that the doctrine of invited error is an extension of the principles of estoppel that “applies when a party invites the court or the jury to commit error,” she pointed out that Midell asserted that the principle should not apply to his case because the record does not clearly show that defense counsel made a “conscious choice” to use “racially coded language” or to deliberately violate the RJA.
Rejecting the defendant’s argument, Desautels opined that the question was not whether Green intended to violate the RJA with his commentary, but instead whether he made a conscious tactical choice to use the word that he chose. Finding that he did, the court said that the defendant’s RJA claim was barred.
As to Novak’s comments, she acknowledged that “Midell and the State Public Defender urge us to reach the merits of the asserted RJA claim” despite his failure to object because the enforcing procedural bars would undermine the Legislature’s stated desire to eradicate racial bias in the criminal justice system. Unconvinced, she said that “[w]e decline the request to consider Midell’s unpreserved claim,” but added, in a footnote:
“[A]lthough we do not condone the negative comparisons of any human being to an animal, in this case-specific context, where defense counsel relied on and even narrated the videos of the…assault to emphasize his argument that Midell did not harbor the specific intent necessary to be found guilty of the charged offenses, it is unlikely an objective observer would consider the court’s animalistic reference to be an appeal to racial bias.”
Sua Sponte Duty
Addressing his contention that the trial judge had a sua sponte duty to police potential RJA violations, she pointed out that the case he cited for support—the 2024 decision by Div. Two of the Fourth District Court of Appeal in Sanchez v. Superior Court of San Bernardino County—involved circumstances in which the prosecutor raised a potential defense conflict of interest after the deputy public defender assigned to the case said:
“I really don’t care.’…[R]ead between the lines…I am a white man. What do I care? It’s not my people we are incarcerating.”
The Sanchez court held that the trial judge’s removal of the defense attorney, over the defendant’s objection, was not an abuse of discretion. Saying the case was inapposite, DeSautels reasoned that “neither the majority nor the dissent held or even suggested the trial court had a sua sponte duty to police potential RJA violations” and concluded that “[n]or would it have been appropriate for the court to…stop closing argument to conduct an RJA investigation.”
The case is People v. Midell, A168758.
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