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Court of Appeal:
Statewide Statistics Don’t Justify Racial Justice Act Discovery
Opinion Says Data Is Insufficient to Allege Specific Factual Scenario of Racial Discrimination Needed to Trigger Obligation on Prosecution to Turn Over Slew of Charging Information
By Kimber Cooley, associate editor
Div. Two of the Fourth District Court of Appeal held yesterday that statewide statistics purportedly showing disparities in the incarceration rates between racial groups are insufficient to trigger discovery from the prosecution relating to multiple years of charging decisions.
The court acknowledged case law establishing that countywide statistics may form the basis for such a discovery order where a violation of the Racial Justice Act (“RJA”) is alleged, but declared:
“[S]tatewide statistics are at most general indications of what are arguably inequalities in the state’s justice system—they are not specific factual allegations of misconduct in defendant’s case.”
Yesterday’s opinion, authored by Acting Presiding Justice Douglas P. Miller and joined in by Justices Carol D. Codrington and Michael J. Raphael, also rejects a defendant’s assertion that a single case he cited as an example of filing disparities by the Riverside District Attorney’s Office was enough to justify the order, saying that “there are no reasonable inferences to be drawn about this case by comparing it” to the other one.
Seeking the discovery was Frank Lalo, who was charged with rape, burglary, and other offenses relating to allegations that he broke into a woman’s home in 1996, sexually assaulted her at knifepoint, and carried a child around the house while searching for property to steal.
One-Strike Allegation
Just before trial was set to begin, prosecutors with the Riverside County District Attorney’s Office amended the complaint to add a so-called “one-strike” allegation under Penal Code §667.61, which increases the penalty for rape to 25 years to life imprisonment if the crime occurred during a burglary and involved the use of a deadly weapon.
After a jury deadlocked during his first trial in 1997, Lalo was identified through DNA testing as a possible perpetrator. In February 1998, he pled guilty to burglary and kidnapping a child under the age of 14; the other charges were dismissed and he was sentenced to 49 years in prison.
In August 2024, Lalo, who is Samoan, sought discovery under the RJA, codified at Penal Code §745. It prohibits the state from obtaining a criminal conviction or sentence based on a defendant’s race.
The law says that a defendant may prove a violation by showing that “the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant’s race…in the county.” Subdivision (d) specifies:
“A defendant may file a motion requesting disclosure to the defense of all evidence relevant to a potential violation…in the possession or control of the state. A motion filed under this section shall describe the type of records or information the defendant seeks. Upon a showing of good cause, the court shall order the records to be released.”
Comparison Cited
Lalo cited a 2004 case filed by the Riverside District Attorney’s Office against a white man named Larry Tripp, who was charged with residential burglary and forcible rape. The complaint did not assert a one-strike allegation.
Relying on the Tripp matter as evidence of unequal treatment based on race, he sought a list of all cases filed by the prosecutorial agency between 1995 and 2004 in which a defendant was charged with rape as well as residential burglary, and specifically requested that the data include the purported perpetrator’s race.
Riverside Superior Court Judge Jennifer R. Gerard granted the request, saying:
“[H]e’s to get any cases from Riverside County during the time period of January 1, 1998, to December 31, 2004, for charges with [rape] and a…first degree burglary, to be turned over with the full name of all of the defendants, their ethnicity or racial background, as well as all of the charges and enhancements.”
The District Attorney’s Office filed a petition for a writ of mandate directing the trial court to vacate the order, asserting that there is no plausible factual basis for a possible RJA violation under the circumstances surrounding Lalo’s case. Miller noted:
“The People rejected defendant’s assertion that the one strike allegation…drastically changed plea negotiations. The People contended that it was the DNA evidence that drastically changed plea negotiations. The People noted that, despite having DNA evidence, they agreed to a plea that did not include a rape conviction or a one-strike sentence.”
Good Cause
The jurist pointed to the 2022 Young v. Superior Court decision by Div. Four of the First District Court of Appeal, which held:
“[I]n order to establish good cause for discovery under the Racial Justice Act, a defendant is required only to advance a plausible factual foundation, based on specific facts, that a violation of the Racial Justice Act ‘could or might have occurred’ in his case.”
Lalo cited state and federal statistics purportedly showing that “[w]hile Whites were incarcerated in 2021 at a rate of 143 persons per 100,000 population, Pacific Islander and Native Hawaiians were incarcerated at a rate of 238 persons per 100,000 population” and that Samoans were overrepresented in the latter category.
Addressing whether the statistics can form the basis for good cause under the RJA, Miller wrote:
“The question confronting us is whether statewide statistics present ‘a specific factual scenario of…misconduct.’…We conclude they do not.”
He reasoned:
“Because the statistics are not focused on Riverside County, they are not sufficient to provide the specific facts required for discovery.”
Not Plausible
Saying that the other “factual scenario advanced by defendant” is “not plausible” when considered “in light of the pertinent” procedural history, he opined:
“[The] defendant was already facing a potential life sentence for the kidnapping charge…when the one-strike allegation was added, thus the one-strike allegation did not create the potential for a lengthier sentence; and [] after the one-strike allegation was added, defendant discussed a possible plea but proceeded to trial, which ended in a mistrial, thus the addition of the one-strike allegation did not pressure defendant into a plea.”
Turning to the comparison to the Tripp case, he acknowledged that “the July 20, 2004 complaint filed against Tripp…does not include a one-strike allegation,” but said:
“The one-strike allegation against defendant was added in an amended information prior to trial. Defendant provides no indication of what charges and allegations Tripp faced in an information filed before trial, if Tripp’s case went to trial. To summarize, neither defendant nor Tripp faced a one-strike allegation in their complaints, and we have no means of knowing what charges, if any, Tripp faced after the complaint stage.”
He added:
“In granting defendant’s motion, the trial court said the following: ‘….I think the case he cited, by the charging alone is similar. Maybe how [defendant’s] case ultimately ended is not, but I think it’s similar enough for this Court.’ We infer from the foregoing statement that the trial court found a plausible factual foundation based upon Tripp not facing a one-strike allegation. The trial court erred in relying on Tripp’s case because…there are no reasonable inferences to be drawn about this case by comparing it to the Tripp case.”
The case is People v. Superior Court (Lalo), 2025 S.O.S. 2561.
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