RJA Discriminatory-Language Error in Pre-2021 Capital Cases: Chapman Review, “Bengal Tiger” Prohibited, and No Categorical Bar to Penalty Retrial

Case: People v. Bankston (Cal. Supreme Ct., June 1, 2026)  |  Posture: Automatic appeal from a judgment of death

1. Introduction

People v. Bankston arises from two gang-related shooting episodes in May 1991 in Los Angeles County: the murder of Benson Jones and attempted murder of Benjamin Jones, and the murder of Jesus Sanchez (plus an assault with a firearm on Linda Jones). After two guilt-phase trials (a mistrial as to some counts after the first), a jury found Bankston guilty of two first degree murders and related offenses and found true a multiple-murder special circumstance (Pen. Code, § 190.2, subd. (a)(3)). At the penalty phase, the jury returned a death verdict.

The appeal presented many conventional capital issues (self-representation, voir dire, joinder, hearsay, gang evidence) but ultimately turned on the California Racial Justice Act of 2020 (Pen. Code, § 745): both parties agreed the penalty phase contained RJA error requiring reversal of the death judgment.

2. Summary of the Opinion

• Death judgment reversed due to Penal Code section 745, subdivision (a)(2) violations in the prosecutor’s penalty-phase closing argument, principally the “Bengal tiger” allegory and repeated “thug” epithets.
• Guilt judgments affirmed in all other respects; asserted RJA violations at guilt phase did not warrant reversal on the existing record.
• Harmless-error framework announced for pre-2021 judgments on appeal: for RJA discriminatory-language claims in cases where judgment was entered before 2021, the court applies Chapman-style harmless-beyond-a-reasonable-doubt review.
• Forward-looking directive: “the Bengal tiger story should no longer be told in California courtrooms.”
• Construction of § 745, subd. (l): the 2026 opinion construes the “not eligible for the death penalty” provision to apply in the same proceeding where the violation is found, thereby not categorically barring penalty retrial after reversal, to avoid serious initiative-amendment concerns.

3. Analysis

3.1. Precedents Cited

A. Self-representation and substitution of counsel

• People v. Marsden (1970) 2 Cal.3d 118: The court reaffirms that a Marsden inquiry is triggered only when there is “at least some clear indication” the defendant seeks substitute counsel; dissatisfaction alone, when the defendant insists on self-representation, does not obligate a Marsden hearing. (See also People v. Taylor (2010) 48 Cal.4th 574; People v. Mendoza (2000) 24 Cal.4th 130.)
• Faretta v. California (1975) 422 U.S. 806 and Iowa v. Tovar (2004) 541 U.S. 77: The opinion applies standard waiver principles—no “script” required; adequacy assessed on the full record. (See People v. Mickel (2016) 2 Cal.5th 181; People v. Frederickson (2020) 8 Cal.5th 963; People v. Riggs (2008) 44 Cal.4th 248.)

B. Right to be present

• Kentucky v. Stincer (1987) 482 U.S. 730 and California analogs (citing People v. Harris (2008) 43 Cal.4th 1269; People v. Caro (2019) 7 Cal.5th 463): administrative/scheduling discussions are not “critical stages” requiring presence; any assumed error was harmless.
• People v. Clark (2011) 52 Cal.4th 856: used to analogize noncritical administrative contacts.

C. Voir dire and peremptories

• Skilling v. United States (2010) 561 U.S. 358 and Morgan v. Illinois (1992) 504 U.S. 719: wide trial-court discretion; constitution requires impartiality, not a catechism.
• People v. Beck and Cruz (2019) 8 Cal.5th 548 and Tapia v. Superior Court (1991) 53 Cal.3d 282: Proposition 115’s Code Civ. Proc., former § 223 placed primary voir dire responsibility on the court and confined questions to challenges for cause.
• People v. Caro (1988) 46 Cal.3d 1035, People v. Gonzales and Soliz (2011) 52 Cal.4th 254: forfeiture principles govern complaints about peremptory procedures when the defense stipulates or fails to object.
• People v. Armendariz (1984) 37 Cal.3d 573 appears, but the court resolves the claim on forfeiture rather than the merits.

D. Gang hearsay, experts, and confrontation

• People v. Sanchez (2016) 63 Cal.4th 665 and Crawford v. Washington (2004) 541 U.S. 36: the court assumes arguendo that FI/GREAT and rap-sheet content might implicate hearsay/confrontation but finds harmlessness because of overwhelming independent evidence. It also references Smith v. Arizona (2024) 602 U.S. 779 as affirming Sanchez’s “for their truth” logic.
• People v. Perez (2020) 9 Cal.5th 1 and People v. Rangel (2016) 62 Cal.4th 1192: no forfeiture for Sanchez/Crawford-type objections in trials predating those decisions.
• Hemphill v. New York (2022) 595 U.S. 140: “opening the door” does not excuse admission of unconfronted testimonial hearsay.

E. Joinder/severance

• People v. Westerfield (2019) 6 Cal.5th 632, People v. Scott (2015) 61 Cal.4th 363, Williams v. Superior Court (1984) 36 Cal.3d 441: standard severance factors; no abuse of discretion and no gross unfairness shown.

F. Racial Justice Act interpretation and remedies

• “Bengal tiger” trope line of cases: People v. Duncan (1991) 53 Cal.3d 955, People v. Brady (2010) 50 Cal.4th 547, People v. Spencer (2018) 5 Cal.5th 642, People v. Powell, 6 Cal.5th 136 (2018) (Powell). The court acknowledges these cases had allowed the trope and expressly states it should no longer be used after the RJA.
• Context and coded language: Ash v. Tyson Foods, Inc. (2006) 546 U.S. 454; Avenue 6E Investments., LLC v. City of Yuma, Ariz. (9th Cir. 2016) 818 F.3d 493.
• Harmless error and state constitutional limits: the court discusses Cal. Const., art. VI, § 13 and structural error (Arizona v. Fulminante (1991) 499 U.S. 279; In re Christopher L. (2022) 12 Cal.5th 1063), and cites People v. Breverman (1998) 19 Cal.4th 142 on the court’s role as “final arbiter” of “miscarriage of justice.”
• Statutory interpretation to avoid initiative-amendment problems: initiative-amendment doctrine cases People v. Kelly (2010) 47 Cal.4th 1008, People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, People v. Rojas (2023) 15 Cal.5th 561, People v. Cooper (2002) 27 Cal.4th 38, and related analysis in People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270.
• “Shall vacate” not always per se reversal: People v. Superior Court (Zamudio) 23 Cal.4th 183 is used to support a prejudice-sensitive construction in the absence of clear legislative displacement of ordinary appellate review constraints.

3.2. Legal Reasoning

A. The RJA violation: why the penalty argument crossed the line

The court applies Penal Code section 745, subdivision (a)(2) and the definition in subdivision (h)(4): “language that, to an objective observer, explicitly or implicitly appeals to racial bias,” including (as a salient example) language comparing a defendant to an animal. The prosecutor’s “Bengal tiger” allegory—told as a caution not to be “fooled” by Bankston’s courtroom presentation—was delivered with vivid, “jungle” predator imagery and was accompanied by repeated use of the epithet “thug.” In context, the Attorney General conceded (and the court agreed) these statements would be understood by an objective observer as implicitly appealing to racial bias, warranting reversal of the death judgment.

B. Harmless error: a new appellate framework for pre-2021 judgments

A central doctrinal move is the court’s adoption of Chapman-style harmless-beyond-a-reasonable-doubt review for discriminatory-language RJA claims in cases where judgment was entered before January 1, 2021. The court reasons that Penal Code section 745, subdivision (k) expressly supplies that standard for pre-2021 petitions and treats it as the appropriate standard on direct appeal in the same vintage of cases—both to align with legislative design for retroactivity and to avert constitutional tension with Cal. Const., art. VI, § 13’s miscarriage-of-justice limitation on reversal.

Applying that standard to the penalty phase, the court accepts the Attorney General’s concession that the People could not show the RJA violation “did not contribute” to the death verdict: the argument’s dehumanizing and bias-activating thrust bore directly on the jury’s moral, individualized sentencing function.

C. Remedy and death-eligibility on remand: construction of § 745, subd. (l)

The opinion confronts the 2025 amendments that relocated the death-ineligibility sentence into Penal Code section 745, subdivision (l): “When the court finds there has been a violation of subdivision (a), the defendant shall not be eligible for the death penalty.” Bankston urged that once an RJA violation is found, the death penalty is categorically unavailable in any future proceeding. The court rejects that reading, not by invalidating the statute, but by construing subdivision (l) to apply within the same proceeding in which the violation is found. The court’s driving concern is the initiative-amendment doctrine: a categorical, perpetual bar on penalty retrial in a Briggs Initiative special-circumstance case could “prohibit what the initiative authorizes” (Pearson) and thereby amount to an unconstitutional legislative amendment of the voter-enacted death-eligibility scheme. The narrower construction avoids those constitutional doubts and leaves the People free to decide whether to retry the penalty phase after reversal.

D. Disposition on other claims

The opinion rejects claims regarding alleged failure to conduct a Marsden inquiry, voluntariness of Faretta waiver, asserted ex parte/absence errors, voir dire insufficiency and peremptory limitations (largely forfeiture plus merits), severance, and multiple evidentiary claims (often assuming arguendo error but finding harmlessness).

3.3. Impact

• RJA appellate standard-setting (pre-2021 judgments): The case supplies a Supreme Court-endorsed harmless-beyond-a-reasonable-doubt framework for discriminatory-language RJA claims in older cases still on direct review—an issue on which the concurrences sharply disagree.
• Trial advocacy constraint: The opinion effectively ends the use of the “Bengal tiger” allegory (and signals heightened scrutiny of dehumanizing metaphors and racially coded epithets) in California capital advocacy under § 745.
• Remedial architecture in capital cases: By construing § 745(l) to avoid an initiative-amendment conflict, the court preserves the traditional ability to retry a reversed penalty phase, while leaving open further constitutional questions for other contexts (and referencing People v. Barrera (2026) __ Cal.5th __).
• Guidance on gang-expert testimony: While finding no RJA violation on the record, the court cautions trial courts to monitor testimony about “Black” or racially organized gangs, encourage neutral descriptors, and police drift from gang-culture evidence into racial stereotyping.

4. Complex Concepts Simplified

• RJA “objective observer” test: The question is not whether the speaker intended bias; it is whether a reasonable observer would understand the language as explicitly or implicitly appealing to racial bias. (Pen. Code, § 745, subd. (h)(4).)
• “Implicit” racial bias / “coded” language: Words that appear race-neutral can nonetheless activate stereotypes or historical associations; context matters (e.g., tone, imagery, narrative framing).
• Harmless beyond a reasonable doubt (Chapman): Once an error is found, the People must show it did not contribute to the verdict/sentence; any reasonable possibility of influence defeats harmlessness.
• Initiative-amendment doctrine: If voters enact a statute by initiative, the Legislature generally cannot “take away” from it without voter permission. Courts therefore avoid constructions of later statutes that would “prohibit what the initiative authorizes.”
• Penalty phase “normative” decision: Unlike guilt, penalty is a moral judgment about the appropriate punishment; that makes bias-activating rhetoric particularly dangerous because it can skew mercy and moral appraisal.

5. Conclusion

People v. Bankston is a foundational California Supreme Court decision applying the Racial Justice Act in a capital case. It (1) reverses a death judgment where the prosecutor’s closing argument implicitly appealed to racial bias through dehumanizing “Bengal tiger” imagery and repeated “thug” epithets; (2) announces that, for discriminatory-language RJA claims in cases with pre-2021 judgments, the reviewing court applies harmless-beyond-a-reasonable-doubt scrutiny; and (3) construes Penal Code section 745, subdivision (l) narrowly to avoid unconstitutional interference with voter-enacted death-eligibility rules, thereby allowing the People to seek a penalty retrial after reversal. The concurrences underscore that the case also marks the beginning—not the end—of contested interpretive questions about the RJA’s breadth and its relationship to traditional harmless-error principles.