Penal Code 745: Racial Justice Act Grounds, Claims, and Remedies

The California Racial Justice Act, codified at Penal Code Section 745, bars the state from seeking or obtaining a criminal charge, conviction, or sentence based on a defendant’s race, ethnicity, or national origin. It gives defendants a specific way to challenge a case when racial bias played a role, and it does not require proof that the bias was intentional. The law took effect in 2020 and was expanded by Assembly Bill 256 in 2022 to reach older convictions on a phased schedule that fully opened on January 1, 2026.

The Five Grounds for a Violation

A defendant needs to establish only one of five grounds, and only by a preponderance of the evidence — more likely than not. Intent is not an element of any of them.

Bias or hostility toward the defendant based on race, ethnicity, or national origin shown by a judge, attorney, law enforcement officer, expert witness, or juror involved in the case, whether in or out of court.
Racially discriminatory language about the defendant’s race, ethnicity, or national origin used during the court proceedings by any of those same participants, whether or not the language was purposeful.
Charging disparities: the defendant was charged with or convicted of a more serious offense than similarly situated defendants of other races who engaged in similar conduct, and prosecutors in that county more frequently pursued the harsher charge against people of the defendant’s race.
Sentencing disparities tied to the defendant’s race: a longer or harsher sentence than similarly situated people convicted of the same offense, matched by a broader county-level pattern affecting people of the defendant’s race.
Sentencing disparities tied to the victim’s race: a longer or harsher sentence than others convicted of the same offense, where harsher sentences were more commonly imposed in cases involving victims of a particular race in that county.

The two charging and two sentencing categories require both an individual disparity in the defendant’s case and a broader statistical pattern in the county where the case was handled.¹ That dual requirement is what makes discovery and expert analysis so central to these claims.

How to File a Claim

The right procedural vehicle depends on where the case stands.

If the case is still being tried, the defendant files a motion in the trial court.
If a judgment has been entered and the defendant is still in custody, the claim goes forward through a habeas corpus petition under Penal Code Section 1473.
If the defendant is no longer in custody but still faces consequences from the conviction, a motion under Penal Code Section 1473.7 is available.
Claims based entirely on the trial record can also be raised on direct appeal.²

A motion filed during an ongoing case must be brought as soon as possible after the defendant learns of the alleged violation. Courts can treat late motions as waived. The motion first has to make a prima facie showing that a violation could have occurred; this is a threshold screening, not a decision on the merits. If the court finds enough to support the claim, it sets an evidentiary hearing. When the motion targets the conduct or statements of the assigned judge, that judge is disqualified from further proceedings on the claim.

Getting the Data: Discovery Rights

Charging and sentencing disparity claims depend on data that the prosecution controls. Section 745(d) gives defendants the right to request all evidence relevant to a potential violation that the state possesses or controls, provided the motion describes the type of records sought.¹

On a showing of good cause, the court orders the records released. Courts have read that standard generously: a defendant needs a plausible factual basis showing that a violation “could or might have occurred,” a lower bar than many other criminal discovery motions. Where privacy or privilege concerns arise, the court can order redaction or a protective order rather than deny disclosure.²

The Evidentiary Hearing

Once the prima facie threshold is met, the court holds a full evidentiary hearing. The defendant carries the burden of proof by a preponderance of the evidence. Both sides may offer statistical evidence, aggregate data, expert testimony, and sworn witness testimony, and the court may appoint its own independent expert. Out-of-court statements that the court finds trustworthy and reliable are admissible for deciding whether a violation occurred, which is more permissive than the hearsay rules that govern a trial.²

Statistical evidence has to be sound and specific. Recent appellate decisions have rejected reports that are logically flawed or that ignore available information, and they expect the analysis to focus on the actual charges, defendants, and county at issue. For charging disparity claims, courts want a comparison of defendants charged with the same offense in the same county. Statewide numbers alone generally will not prove a local pattern of bias.

What the Court Can Order

The remedies available depend on whether the case is still pending or already ended in judgment.

Before Judgment

If the court finds a violation during an ongoing case, it can:

Grant the defendant’s motion for a mistrial.
Discharge the jury panel and seat a new one.
Dismiss sentencing enhancements, special circumstances, or special allegations, or reduce one or more charges, if doing so would serve the interest of justice.
Order any other lawful remedy not prohibited by another law.¹

The fit between violation and remedy matters. Discriminatory language that reached the jury points toward a new panel; a charging decision tainted by bias points toward reducing or dismissing charges.

After Judgment

When a violation is proven after a conviction, the consequences are more sweeping. If the conviction itself was sought or obtained in violation of the act, the court must vacate both the conviction and the sentence, declare them legally invalid, and order new proceedings. The one exception involves violations found only under subdivision (a)(3), where the court may instead modify the judgment to a lesser included or lesser related offense.²

If only the sentence was tainted, the court vacates the sentence and imposes a new one. In no case can the new sentence exceed the one the defendant was originally serving, so a defendant who successfully proves bias cannot be resentenced to more time.²

Death Penalty

In capital cases, any proven violation of the act makes the defendant ineligible for the death penalty. The rule is absolute — no discretion, no balancing.¹

Who Can File a Retroactive Claim

The original 2020 statute only reached cases where the judgment was not yet final. Assembly Bill 256 extended it retroactively to earlier convictions on a phased calendar:

January 1, 2023: people sentenced to death and people facing actual or potential immigration consequences from the conviction or sentence.
January 1, 2024: people currently serving a sentence in state prison, county jail on a felony commitment, or committed to the Division of Juvenile Justice.
January 1, 2025: people with felony convictions or juvenile commitments where the judgment became final on or after January 1, 2015.
January 1, 2026: everyone else with a felony conviction or juvenile commitment resulting in a Division of Juvenile Justice commitment, regardless of when the judgment became final.

The final phase, effective January 1, 2026, removes all date-of-judgment restrictions. Someone convicted decades ago can now file if they can present evidence of a violation.³ The statute does not set a final cutoff for filing retroactive petitions, but delay carries practical costs: witnesses move or die, records get harder to find, and memories fade.

What Filing a Claim Actually Involves

The law is strong on paper, and some claims are relatively straightforward. Bias and discriminatory language claims under subdivisions (a)(1) and (a)(2) are easiest to prove when the offending statement appears in a transcript, in body camera footage, or in written communications. Off-the-record bias is harder: witness testimony can carry the claim, but courts weigh it against whatever other evidence exists.

Charging and sentencing disparity claims are more demanding. A defendant typically needs county-level data on how prosecutors handled comparable cases, a discovery motion to obtain it, and a statistical expert to analyze it. Experts in criminal justice statistics commonly charge several hundred dollars per hour, and the analysis takes real time. Public defenders handle some of these cases, but people pursuing post-conviction claims often struggle to find counsel.

If you are considering a retroactive claim, start by obtaining the full record of the original proceedings from the superior court. From there, work with an attorney experienced in Racial Justice Act litigation. The prima facie threshold, discovery strategy, and statistical proof requirements all involve technical legal judgments that are hard to handle without one.

1
California Legislative Information. California Penal Code PEN 745
2
California Legislative Information. California Code, Penal Code 745
3
Office of the State Public Defender. Racial Justice Act Retroactivity AB 256