Filed 9/21/26 P. v. Jackson CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B348018
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 24IWCF00645)
v.
MARLON DAVID JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Affirmed.
Kathleen J. Becket, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Sophia A. Lecky, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________
Marlon David Jackson appeals from a judgment after a jury
convicted him of carrying a concealed, loaded, unregistered
firearm in a vehicle. Police officers stopped Jackson’s vehicle for
suspected traffic violations, saw a cloud of smoke emit from both
sides of the vehicle when Jackson drove it into a parking lot and
lowered its windows, detected an odor of recently burned
marijuana, and obtained Jackson’s statement that he had
recently smoked marijuana or an unspecified substance. An
officer then searched the vehicle and a backpack inside it, and
found the firearm in the backpack. Jackson moved to suppress
evidence of the firearm pursuant to Penal Code section 1538.5,
arguing the warrantless search violated his Fourth Amendment
rights.1 The trial court denied the motion, concluding the search
was lawful under both the automobile exception and inventory
exception to the warrant requirement.
Jackson argues the trial court erred by denying his motion
to suppress the firearm. We conclude the trial court correctly
denied the motion because the automobile exception justified the
search. We agree with the trial court’s conclusion that the
automobile exception applies because the smoke emitting from
the vehicle, the odor of recently burned marijuana, and Jackson’s
statement that he had smoked recently created probable cause to
believe the vehicle contained evidence that Jackson had
unlawfully driven while possessing on his person an open
receptacle of marijuana. We need not address the trial court’s
conclusion that the inventory exception independently justified
the search.
Jackson further argues that the trial court prejudicially
erred by admitting the firearm into evidence over his objection
1 Undesignated statutory references are to the Penal Code.
2
under Evidence Code section 352, and that his conviction and
sentence violated the California Racial Justice Act of 2020 (RJA)
(§ 745; Stats. 2020, ch. 317, § 3.5). We reject those arguments
and affirm the judgment.
BACKGROUND
The Los Angeles County District Attorney charged Jackson
with carrying a loaded firearm (§ 25850, subds. (a) & (c)(6); count
1) and carrying a concealed firearm in a vehicle (§ 25400, subd.
(a)(1); count 2), and alleged as to both counts that the firearm
was not registered to Jackson (§§ 25850, subd. (c)(6), 25400, subd.
(c)(6)(B)).2
A. The trial court denied Jackson’s motion to suppress
the firearm.
After a magistrate held Jackson to answer at a preliminary
hearing, Jackson moved to suppress evidence of a firearm that a
police officer had found in a backpack inside his vehicle during a
warrantless search. In opposition, the prosecution argued the
search was lawful pursuant to the automobile exception and
inventory exception to the warrant requirement.
Hawthorne Police Department Officers Tyler Latona and
Christopher McPheeters testified at the suppression hearing. On
October 11, 2024, around 2:18 a.m., while patrolling in
Inglewood, the officers saw an SUV (later determined to be
driven by Jackson, who was alone in the vehicle) exit a “high-
populated crime hotel” at 3649 West Imperial Highway. Latona
2 The prosecution was unable to proceed on count 3, felon in
possession of a firearm (§ 29800, subd. (a)(1)), and the trial court
granted the prosecutor’s motion to dismiss.
3
testified that based on his experience, he knew most motels in
that area are “extremely high-crime motels” known for narcotics
sales, firearm possession, prostitution, and gang activity.
Jackson’s vehicle had no front license plate, had dark tinted
windows, and had a rear license plate that Officer Latona
suspected was illegitimate.3 For those reasons, the officers
conducted a traffic stop.4
Jackson’s vehicle pulled into the parking lot of the
Diamond Inn. Officer McPheeters testified that the Diamond Inn
is located in a “high-crime gang area” known for narcotics sales,
firearms, and prostitution.
Officer Latona testified: “While [Jackson’s vehicle] started
to yield in the parking lot, prior to us even activating our lights,
the driver rolled down the windows, . . . [and] a cloud of smoke
emitted from the car. As I walked up on the car, I smelled the
odor of marijuana.” Officer McPheeters similarly testified that
before the officers walked up to the vehicle, they asked Jackson to
roll down the vehicle’s windows, and after he did so, smoke
emitted from both sides of the vehicle. McPheeters testified that
based on his training and experience, he detected the odor of
“recently smoked marijuana.”
Officer McPheeters testified that Officer Latona asked
Jackson whether he had been smoking marijuana, and Jackson
3 At trial, Officer Latona testified he eventually determined
the rear license plate was a valid temporary Georgia license
plate.
4 “ ‘[T]he lack of a front license plate has long been
recognized as a legitimate basis for a traffic stop.’ ” (People v.
Valle (2024) 105 Cal.App.5th 195, 202 (Valle).) Jackson does not
argue the traffic stop violated his Fourth Amendment rights.
4
“admitted to recently smoking marijuana.” On cross-
examination, McPheeters testified that Jackson said he had
“recently smoked” (without specifying the substance).
Officer Latona advised Jackson of the reasons for the traffic
stop and asked for his driver’s license. Jackson then began to
reach into a backpack on the front passenger seat.5 The officers
ordered him not to reach into the backpack and to exit the
vehicle.
A records check yielded no return on the vehicle’s rear
license plate. A registration check determined the vehicle’s
registration (in Georgia) had expired more than six months
earlier. The officers decided to impound the vehicle.
Officer Latona conducted an “inventory search” of the
vehicle at the scene. He found a loaded, unregistered firearm in
the backpack inside the vehicle. The backpack also contained
two bags of marijuana, two cell phones, approximately $358 in
cash, and Jackson’s Florida driver’s license. Elsewhere in the
vehicle, Latona found more marijuana and “multiple USPS
packaging items.”
The prosecutor argued the search was lawful pursuant to
the automobile exception and inventory exception to the warrant
requirement. Jackson argued the search was unlawful because
the odor of marijuana, his statement that he had recently
smoked, and his inability to retrieve his driver’s license (because
the officers ordered him not to reach into the backpack) did not
justify the search.
5 At trial, Latona testified the backpack was not on the
front passenger seat but was on the floorboard in front of that
seat.
5
The trial court denied Jackson’s motion to suppress the
firearm. The court found that because the officers saw a cloud of
smoke emit from the vehicle, recognized the odor of that smoke as
“recently burned marijuana,” and obtained Jackson’s statement
that he had recently smoked, the facts known to the officers
supported a reasonable inference that Jackson “had just been
smoking marijuana” (implicitly, while driving). The court
concluded the automobile exception justified the search because
those facts established probable cause to believe the vehicle
contained evidence that Jackson had driven under the influence
of marijuana in violation of Vehicle Code section 23152,
subdivision (f), and/or driven while possessing on his person an
open receptacle of marijuana in violation of Vehicle Code section
23222, subdivision (b)(1).6 The court further concluded that the
inventory exception independently justified the search.
B. At trial, the jury convicted Jackson on both counts.
The trial court sentenced him to two years in prison.
At trial, the jury convicted Jackson on both counts and
found the allegations true. We will summarize the trial evidence
in our discussion of Jackson’s challenge to the admission of the
firearm into evidence.
6 “It is unlawful for a person who is under the influence of
any drug to drive a vehicle.” (Veh. Code, § 23152, subd. (f).)
“Except as authorized by law, a person who has in their
possession on their person, while driving a motor vehicle upon a
highway . . . a receptacle containing cannabis or cannabis
products . . . which has been opened or has a seal broken, or loose
cannabis flower not in a container, is guilty of an infraction . . . .”
(Veh. Code, § 23222, subd. (b)(1).)
6
The probation department recommended denying probation
and stated that aggravating circumstances justified a high base
term. At sentencing, the prosecution requested the middle term
of two years on count 1 (carrying a loaded firearm). Jackson
argued he had a minimal criminal record with no felonies
“despite what the people originally charged,” but did not specify
whether he requested probation or the low term.
The trial court denied probation, stating: “While he may be
eligible for probation, he is not suitable given the underlying
facts of this case: the location where he was arrested, under the
circumstances [in which] he was arrested, with the particular
firearm that he was arrested with that was referred to as a ghost
gun.”7 “According to his adult history he has been on probation
before . . . for what appears to be a similar offense.”8
The trial court sentenced Jackson to the middle term of two
years on count 1. The court imposed and stayed a concurrent
two-year term on count 2. Jackson filed a timely notice of appeal.
7 At trial, Latona testified that the firearm was a “ghost
gun,” meaning a gun constructed without a serial number,
rendering it untraceable by law enforcement.
8 The probation report indicated that in 2012, Jackson
sustained a Florida felony conviction for carrying a concealed
weapon (in addition to two misdemeanor convictions), was
sentenced to 18 months of formal probation, and violated his
probation.
7
DISCUSSION
A. The trial court did not err by denying Jackson’s
motion to suppress.
Jackson argues the warrantless search of his vehicle and
the backpack therein violated the Fourth Amendment. He
argues the trial court erred by concluding the automobile
exception to the warrant requirement justified the search. The
Attorney General argues the trial court correctly applied the
automobile exception.
1. Standard of review
“ ‘ “The standard of appellate review of a trial court’s ruling
on a motion to suppress is well established. We defer to the trial
court’s factual findings, express or implied, where supported by
substantial evidence. In determining whether, on the facts so
found, the search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment.” ’ ” (Valle,
supra, 105 Cal.App.5th at p. 200.) “ ‘In reviewing factual
determinations for substantial evidence, a reviewing court should
“not reweigh the evidence, evaluate the credibility of witnesses,
or resolve evidentiary conflicts.” ’ ” (People v. Helzer (2024) 15
Cal.5th 622, 646.)
In reviewing the trial court’s ruling on the suppression
motion, we disregard the parties’ citations to the preliminary
hearing transcript and the trial transcript, which transcripts
were not before the trial court when it ruled on the suppression
motion. (See People v. Fisher (1995) 38 Cal.App.4th 338, 341;
People v. Neighbours (1990) 223 Cal.App.3d 1115, 1118-1120.)
8
2. Fourth Amendment principles
“ ‘Warrantless searches “are per se unreasonable under the
Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.” ’ ” (Sellers v.
Superior Court (2026) 19 Cal.5th 75, 89 (Sellers).) “ ‘The
prosecution bears the burden of establishing an exception
applies.’ ” (People v. Castro (2022) 86 Cal.App.5th 314, 319
(Castro).)
“ ‘Under the automobile exception to the warrant
requirement, an officer may search a vehicle if the officer has
probable cause to believe that evidence of a crime will be found
inside.’ ” (Sellers, supra, 19 Cal.5th at p. 89.) “ ‘Once an officer
has probable cause to search the vehicle under the automobile
exception, they “may conduct a probing search of compartments
and containers within the vehicle whose contents are not in plain
view.” ’ ” (Castro, supra, 86 Cal.App.5th at p. 320.)
“Probable cause to search exists ‘where the known facts and
circumstances are sufficient to warrant a [person] of reasonable
prudence in the belief that contraband or evidence of a crime will
be found.’ ” (Castro, supra, 86 Cal.App.5th at p. 320.)
“ ‘[P]robable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such
activity.’ ” (People v. Fews (2018) 27 Cal.App.5th 553, 562
(Fews).) “Probable cause . . . is not a high bar: It requires only
the ‘kind of “fair probability” on which “reasonable and prudent
[people,] not legal technicians, act.” ’ ” (Kaley v. U.S. (2014) 571
U.S. 320, 338, quoting Florida v. Harris (2013) 568 U.S. 237,
244.)
Proposition 64, enacted by the voters in 2016, “broadly
legalized marijuana possession for adults 21 and older.” (Sellers,
9
supra, 19 Cal.5th at p. 81.) It also enacted Health and Safety
Code section 11362.1, subdivision (c), which provides that
“[c]annabis and cannabis products involved in any way with
conduct deemed lawful by this section are not contraband nor
subject to seizure, and no conduct deemed lawful by this section
shall constitute the basis for detention, search, or arrest.” (Italics
added.) “This provision ‘fundamentally changed the probable
cause determination.’ [Citation.] After Proposition 64, ‘the law is
settled that the lawful possession of marijuana in a vehicle does
not provide probable cause to search the vehicle.’ ” (Sellers, at pp.
89-90, italics added.) “Given other statutory regulations placed
on marijuana possession, however, ‘[Health and Safety Code]
section 11362.1, subdivision (c) does not apply when the totality
of the circumstances gives rise to a fair probability that an
existing marijuana regulation was violated when the search
occurred.’ ” (People v. Moore (2021) 64 Cal.App.5th 291, 300
(Moore).)
“Driving a motor vehicle on public highways under the
influence of any drug (see Veh. Code, § 23152, subd. (f)) or while
in possession of an open container of marijuana (Veh. Code,
§ 23222, subd. (b)(1); [citation]) are not acts ‘deemed lawful’ by
[Health and Safety Code] section 11362.1. On the contrary,
[Health and Safety Code] ‘[s]ection 11362.1 does not permit any
person to [¶] . . . [¶] . . . [p]ossess an open container or open
package of cannabis or cannabis products while driving,
operating, or riding in the passenger seat or compartment of a
motor vehicle’ (Health & Saf. Code, § 11362.3, subd. (a)(4)) or
‘[s]moke or ingest cannabis or cannabis products while driving’ a
motor vehicle (id., subd. (a)([7])).” (Fews, supra, 27 Cal.App.5th
at p. 563.) The definition of an “open container” of marijuana
10
includes a usable amount of marijuana wrapped in paper such
that it can be smoked. (In re Randy C. (2024) 101 Cal.App.5th
933, 940-941 (Randy C.) [marijuana blunt was “open container” of
marijuana within meaning of Health & Saf. Code, § 11362.3,
subd. (a)(4)]; see also Sellers, supra, 19 Cal.5th at pp. 85-87
[describing Randy C.’s conclusion with apparent approval].)
3. The search did not violate the Fourth
Amendment.
The officers’ testimony at the suppression hearing
established that after they initiated the traffic stop, Jackson
drove his vehicle into a motel parking lot and lowered its
windows, and the officers saw a cloud of smoke emit from both
sides of the vehicle. The officers detected the odor of marijuana,
and Officer McPheeters testified, based on his training and
experience, that he recognized the odor of “recently smoked”
marijuana. The officers obtained Jackson’s statement that he
had “recently smoked” in response to Officer Latona asking
whether Jackson had recently smoked marijuana.
Based on that evidence, we agree with the trial court’s
conclusion that the facts known to the officers at the time of the
search supported a reasonable inference that Jackson had just
been smoking marijuana while driving. We further agree with
the trial court’s conclusion that in light of that reasonable
inference, the facts known to the officers supported probable
cause to believe the vehicle contained evidence that Jackson had
driven while possessing on his person “a receptacle containing
cannabis or cannabis products . . . which ha[d] been opened or
ha[d] a seal broken,” in violation of Vehicle Code section 23222,
subdivision (b)(1). The facts supported a fair probability that
such a receptacle supplied the marijuana that Jackson had been
11
smoking while driving, and that Jackson had possessed the
receptacle on his person while driving but had hidden the
receptacle in the backpack or elsewhere in the vehicle between
the initiation of the traffic stop and the officers’ approach.
We further conclude the foregoing facts known to the
officers supported probable cause to believe the vehicle contained
evidence that Jackson had violated Health and Safety Code
section 11362.3, subdivisions (a)(4) and (a)(7). The facts
supported a fair probability that the vehicle contained marijuana
that Jackson had been smoking while driving, in violation of
Health and Safety Code section 11362.3, subdivision (a)(7). They
further supported a fair probability that the vehicle contained an
open container of marijuana—such as a marijuana-containing
cigar or blunt—that Jackson had possessed while driving, in
violation of Health and Safety Code section 11362.3, subdivision
(a)(4). (See Randy C., supra, 101 Cal.App.5th at pp. 940-941.)
The trial court therefore correctly concluded the automobile
exception justified the search.
Jackson’s reliance on Blakes v. Superior Court (2021) 72
Cal.App.5th 904 (Blakes) is misplaced. In that case, sheriff’s
detectives conducted a traffic stop and a warrantless search of
the defendant’s vehicle. (Id. at pp. 908-909.) Although the lead
detective smelled an odor of burned marijuana coming from the
vehicle, he “admitted he had no information indicating . . . how
recently the marijuana had been burned.” (Id. at p. 909.) The
opinion does not mention any evidence that the detectives saw
smoke emit from the vehicle or that the defendant stated he had
smoked recently. The trial court denied the defendant’s motion
to suppress evidence found in the search. (Id. at pp. 909-910.)
12
The appellate court issued a writ of mandate directing the
trial court to grant the motion to suppress. (Blakes, supra, 72
Cal.App.5th at p. 915.) The appellate court concluded the odor of
marijuana alone did not support probable cause to believe the
vehicle contained evidence that the defendant had violated the
Vehicle Code by driving under the influence of marijuana or in
possession of an open container of marijuana. (Id. at p. 912.) The
court observed: “Neither detective could determine if the
marijuana was freshly burnt, removing any support for an
inference that petitioner was smoking the marijuana while
driving.” (Ibid., italics added.) The court concluded the
automobile exception did not apply because “[t]he smell of burnt
marijuana in a car, where there is no indication it had been
recently smoked within, cannot by itself provide probable cause [to
believe the car contains evidence] of driving under the influence
of marijuana.” (Id. at pp. 912-913, italics added.)
Here, in contrast, the officers’ observation of Jackson
driving, the cloud of smoke that emitted from the vehicle when
Jackson lowered its windows, Officer McPheeters’s detection of
the odor of recently burned marijuana, and Jackson’s statement
that he had smoked recently, taken together, supported a
reasonable inference that Jackson had recently smoked
marijuana within the vehicle while driving. Thus, the facts
known to the officers supplied the “indication [marijuana] had
been recently smoked within” that Blakes implied could support
probable cause and justify a search pursuant to the automobile
exception. (Blakes, supra, 72 Cal.App.5th at p. 912.)
For the same reasons, People v. Johnson (2020) 50
Cal.App.5th 620 does not assist Jackson. In Johnson, there was
“no evidence of driving” (the defendant’s vehicle was parked when
13
officers first saw and approached it). (Id. at p. 631.) Although an
officer detected an odor of marijuana and saw marijuana in a
plastic baggie that was knotted at the top (id. at p. 627), the
opinion did not mention any evidence that the officers recognized
the odor of recently burned marijuana, that smoke emitted from
the defendant’s vehicle, or that the defendant said he had smoked
recently (or at all).
Jackson argues the automobile exception does not apply
because the evidence does not support a finding that the officers
subjectively “believed they had probable cause to search
appellant’s vehicle because 1) they suspected appellant had been
smoking marijuana while driving; was 2) under the influence of a
controlled substance; or 3) had an open container of marijuana in
his vehicle.” (Italics added.) As Jackson acknowledges, however,
“the automobile exception . . . relies on an objective analysis of
probable cause . . . .” (See, e.g., People v. Lee (2019) 40
Cal.App.5th 853, 862 [“A probable cause inquiry relies on an
objective standard; we do not consider an officer’s subjective
beliefs”].) The officer’s subjective beliefs regarding the
“particular legal theory” that authorized the search are
immaterial “so long as the objective facts, when fully determined,
afford probable cause.” (People v. Le (1985) 169 Cal.App.3d 186,
193; see also id. at pp. 190-191, 193-195 [automobile exception
justified search even though officer subjectively relied on
defendant’s wife’s consent as basis for search].) We have
concluded the objective facts supported probable cause.
Finally, Jackson appears to argue that even if the
automobile exception justified the search of his vehicle, it did not
justify the search of the backpack inside the vehicle. He does not
address the rule (cited by the Attorney General) that “ ‘[o]nce an
14
officer has probable cause to search the vehicle under the
automobile exception, they “may conduct a probing search of
compartments and containers within the vehicle whose contents
are not in plain view.” ’ ” (Castro, supra, 86 Cal.App.5th at p.
320; accord, Moore, supra, 64 Cal.App.5th at p. 297.) We
conclude that rule justified the search of the backpack inside the
vehicle because, as Jackson acknowledges, “the contents of the
backpack could not be seen without opening it first; phrased
differently, the contents were not ‘in plain sight.’ ” (See Moore, at
p. 302 [probable cause to search defendant’s vehicle justified
search of backpack in vehicle].)
In short, we conclude the trial court correctly denied
Jackson’s motion to suppress.
B. The trial court did not abuse its discretion by
admitting the firearm into evidence.
Jackson argues the trial court abused its discretion under
Evidence Code section 352 by admitting the firearm into
evidence, because the court allegedly failed to weigh the firearm’s
probative value against the risk of undue prejudice to Jackson.
The Attorney General argues that Jackson forfeited the objection,
that the objection lacks merit, and that the admission of the
firearm did not prejudice Jackson.
“The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.” (Evid. Code, § 352.) “ ‘The
“prejudice” which section 352 seeks to avoid is that which
“ ‘ “uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the
15
issues.” ’ ” ’ ” (People v. Chhoun (2021) 11 Cal.5th 1, 29, italics
omitted.)
“We review a trial court’s decision to admit evidence under
Evidence Code section 352 for abuse of discretion, and ‘do not
disturb the trial court’s ruling unless it was arbitrary, capricious,
or made in a “ ‘patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” ’ ” (People v. Lamb (2024) 16
Cal.5th 400, 424 (Lamb).)
Before addressing the parties’ arguments, we summarize
the relevant proceedings.
1. Additional background
Before trial, the prosecution moved in limine for permission
to have Officer Latona display the firearm to the jury. At the
hearing on the motion, the trial court stated it would allow the
prosecution to do so. Jackson objected that displaying the
firearm to the jury would be more prejudicial than probative
(implicitly invoking Evidence Code section 352) and offered to
stipulate that the firearm had no serial number. The court
responded, “My ruling stands.” The court granted the motion,
subject to the conditions that the bailiff would inspect the firearm
and the firearm would be rendered safe for display.
The next day, Jackson asked if the trial court had ruled on
the motion. The court confirmed it had granted the motion and
asked if Jackson had concerns. Again, implicitly invoking
Evidence Code section 352, Jackson argued displaying the
firearm would be prejudicial and that a photograph of the firearm
would “do just as well.”
The trial court responded: “I don’t believe it’s prejudicial.
It’s evidence in the case. . . . [T]he standard is beyond a
reasonable doubt. We have 12 jurors. You never know if the[re]
16
might be a juror that says ‘I want to see the actual gun.’ ” “I can
understand why showing them the gun which is such an
important part of this case, it’s the case, should be shown to
them.” “If at any point you feel that we’ve gone beyond our
discussions on how it’s supposed to be handled in the courtroom,
go ahead and object and we’ll go to side bar and talk about it.
But I’m satisfied that they know the procedures and that they’re
not going to do something that would be inflammatory or
dangerous in this courtroom.”
Officer Latona was the sole witness at trial. The prosecutor
played a video from Latona’s body-worn camera for the jury.
Officer Latona testified about the traffic stop in a manner
consistent with his and Officer McPheeters’s testimony at the
suppression hearing. He testified that the stop occurred in a
“high-crime area” known for narcotics sales, illicit firearms, and
prostitution.
Officer Latona testified that when he asked for Jackson’s
driver’s license, Jackson reached for a backpack, and he (Latona)
ordered Jackson not to reach for the backpack and to exit the
vehicle. When the prosecutor asked why he ordered Jackson out
of the vehicle, Latona testified: “Because based on my training
and experience I know that suspects often conceal firearms in
backpacks, and based on the fact that he tried to reach inside of
that [backpack] we wanted to do the stop outside.”
Officer Latona testified that he searched the vehicle and
found a loaded firearm, among other items, in the backpack. The
prosecutor published to the jury two photographs of the firearm
and a photograph of a loaded magazine (which photographs were
later admitted into evidence).
17
At that point in Officer Latona’s testimony, he confirmed
that he possessed the firearm in the courtroom, had rendered it
safe, and had cleared it with the bailiff. Before allowing Latona
to display the firearm to the jury, the trial court informed the
jury that the court had discussed safety procedures for the
firearm’s display with Latona, the attorneys, and the bailiff, and
that the firearm was unloaded and would not be pointed at
anyone. The court also informed the jury that the firearm would
be brought to the jury room during deliberations only if the jury
requested and, if so, would remain in the bailiff’s possession and
control.
One juror asked, “If the jury asks for it to be brought in the
room they are not going to just leave it? I am terrified of guns.”
The trial court responded, “No. No. No.” The court repeated
that the firearm would remain in the bailiff’s possession and
control. The court asked if there were other questions, and there
were none.
Latona then removed the firearm from an evidence bag and
displayed it to the jury. The trial court observed that a zip tie
had been applied to the firearm as an additional safety
precaution; Latona explained that even if the firearm were loaded
(which it was not), the zip tie would prevent it from firing.
Latona testified the firearm’s barrel was approximately four
inches long. The firearm had no serial number and thus could
not have been registered.
Officer Latona placed the firearm back in the evidence bag.
The prosecutor then played another portion of the video, which,
according to Latona’s testimony, showed Latona retrieving the
firearm from the backpack, removing a loaded magazine from the
firearm, and searching the firearm for a serial number. Latona
18
testified that an Automated Firearms System search using
Jackson’s name and date of birth returned “no hits found,”
indicating that no firearms were registered to Jackson.
Jackson presented no defense evidence. The prosecution
initially moved all exhibits except the firearm into evidence. At
the trial court’s suggestion, the prosecution moved the firearm,
too, into evidence. Defense counsel stated: “No objection.” The
court admitted the firearm.
In instructing the jury, the trial court reminded the jury
that unlike the other exhibits, the firearm would not be sent to
the jury room (unless requested). The jury did not ask to see the
firearm during deliberations.
2. Jackson preserved his objection to the firearm’s
admission but fails to show an abuse of discretion.
The Attorney General argues Jackson forfeited his
Evidence Code section 352 objection for appeal, even though he
raised the objection in opposition to the prosecution’s pretrial
motion in limine for permission to have Officer Latona display
the firearm to the jury, because Jackson did not renew the
objection at trial.
We conclude Jackson preserved the Evidence Code section
352 objection by raising it in opposition to the prosecution’s
motion in limine, which motion the trial court granted over
Jackson’s opposition. (See Paige v. Safeway, Inc. (2022) 74
Cal.App.5th 1108, 1119-1120 [plaintiff’s opposition to defendant’s
pretrial motion in limine preserved issue for appeal despite her
failure to renew objection at trial, because trial court granted
defendant’s motion in limine over plaintiff’s opposition].) That
the trial court invited Jackson to object if the prosecution
transgressed the conditions the court had placed on the manner
19
in which the firearm would be handled in the courtroom (which
transgression did not occur) did not render the trial court’s ruling
on the motion tentative.
In light of the trial court’s ruling on the motion, Jackson’s
defense counsel reasonably could have believed it would be futile
to renew the Evidence Code section 352 objection when Officer
Latona displayed the firearm to the jury (or when, at the trial
court’s own suggestion, the People moved the firearm into
evidence). “[I]ssues are preserved for review when it would be
fruitless or an idle act for an attorney to object.” (City of Long
Beach v. Farmers & Merchants Bank of Long Beach (2000) 81
Cal.App.4th 780, 784, disapproved on another ground by Reid v.
Google, Inc. (2010) 50 Cal.4th 512; accord, Mundy v. Lenc (2012)
203 Cal.App.4th 1401, 1406 [“a party need not object if it would
be futile”].)
On the merits, however, we conclude Jackson fails to show
that the trial court abused its discretion. “[W]hen ruling on a[n]
[Evidence Code] section 352 motion, a trial court need not
expressly weigh prejudice against probative value, or even
expressly state it has done so. All that is required is that the
record demonstrate the trial court understood and fulfilled its
responsibilities under Evidence Code section 352.” (People v.
Williams (1997) 16 Cal.4th 153, 214; accord, People v. Jennings
(2000) 81 Cal.App.4th 1301, 1315.) Here, in granting the
prosecution’s motion in limine over Jackson’s objection, the trial
court explained that it believed the firearm was probative and
that the conditions it had placed on the manner in which the
firearm would be handled in the courtroom mitigated the
potential for undue prejudice. That explanation demonstrates
the trial court conducted the required balancing. (See Williams,
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at pp. 213-214 [rejecting defendant’s argument that trial court’s
comments about challenged evidence “were too short and
conclusory to demonstrate the balancing required by Evidence
Code section 352”].)
The trial court acted within its discretion by concluding
that the potential for undue prejudice did not substantially
outweigh the firearm’s probative value. The firearm was
probative of the length of the firearm’s barrel, which was relevant
to an element of count 2, i.e., that the firearm was capable of
being concealed on the person.9 The firearm was also probative of
the absence of a serial number, which was relevant to the
allegations as to both counts that the firearm was unregistered.
That the prosecution could have relied instead on photographs
and descriptions of the firearm, and/or Jackson’s proffered
stipulation regarding the absence of a serial number, did not
deprive the firearm of probative value. (See People v. Clark
(2011) 52 Cal.4th 856, 894 [“That the prosecutor could have relied
on other testimony and evidence of defendant’s demeanor . . .
does not diminish the probative value of the challenged evidence
or require its exclusion under Evidence Code section 352. As we
have observed, the prosecutor is not required ‘to present its case
in the manner preferred by the defense’ ”]; Lamb, supra, 16
Cal.5th at p. 425 [“ ‘the “persuasive power of the concrete and
9 The jury’s instruction on the elements of count 2 provided
that Jackson must have “carried within a vehicle a firearm
capable of being concealed on the person,” and defined a “firearm
capable of being concealed on the person” as any device that,
among other requirements, “has a barrel less than 16 inches in
length.”
21
particular is often essential to the capacity of jurors to satisfy the
obligations that the law places on them” ’ ”].)
In sum, we conclude the trial court acted within its
discretion by admitting the firearm. We need not address the
Attorney General’s argument that the firearm’s admission was
harmless.
C. The record does not demonstrate an RJA violation
by a preponderance of the evidence.
Jackson did not make any objection or motion pursuant to
the RJA in the trial court. “[S]ection 745, subdivision (a), a
provision of the Racial Justice Act, sets forth four categories of
conduct that, if proven by a preponderance of the evidence,
establish a violation of the act.” (People v. Lawson (2025) 108
Cal.App.5th 990, 998.) Because “we are not reviewing any Racial
Justice Act findings by the trial court, of which there are none,”
“we independently review the record to determine if defendant
has demonstrated, by a preponderance of the evidence, a
violation of section 745, subdivision (a).” (Id. at p. 999.)
Jackson, who is Black, argues his conviction and sentence
violated the RJA because (1) Officers Latona and McPheeters
allegedly “racially profiled” Jackson by targeting him for an
allegedly pretextual traffic stop because of his race; (2) at trial,
Officer Latona referred to Jackson as a suspect (by explaining
that he ordered Jackson to exit the vehicle when Jackson reached
for a backpack because he knew “suspects” often concealed
firearms in backpacks); and (3) the officers referred to Jackson’s
presence in a “high-crime area” several times during the
suppression hearing and once during trial, the prosecutor
referred to the same in opposing the suppression motion, and the
trial court referred to the same in denying probation. Jackson
22
does not dispute the Attorney General’s observation that his
arguments appear to rely on subdivisions (a)(1) and (2) of section
745.
Those subdivisions provide: “A violation is established if
the defendant proves, by a preponderance of the evidence, any of
the following: [¶] (1) The judge, an attorney in the case, a law
enforcement officer involved in the case, an expert witness, or
juror exhibited bias or animus towards the defendant because of
the defendant’s race, ethnicity, or national origin. [¶] (2) During
the defendant’s trial, in court and during the proceedings, the
judge, an attorney in the case, a law enforcement officer involved
in the case, an expert witness, or juror, used racially
discriminatory language about the defendant’s race, ethnicity, or
national origin, or otherwise exhibited bias or animus towards
the defendant because of the defendant’s race, ethnicity, or
national origin, whether or not purposeful.” (§ 745, subd. (a).)
“ ‘Racially discriminatory language’ means language that, to an
objective observer, explicitly or implicitly appeals to racial bias,
including, but not limited to, racially charged or racially coded
language, language that compares the defendant to an animal, or
language that references the defendant’s physical appearance,
culture, ethnicity, or national origin.” (§ 745, subd. (h)(4).)
The Attorney General argues that pursuant to People v.
Lashon (2024) 98 Cal.App.5th 804 and published cases that have
agreed with Lashon, Jackson forfeited his RJA claims by failing
to raise them in the trial court. (See id. at p. 815, rev. den. [“we
conclude a defendant may be found to have forfeited a section 745
claim of racial bias made for the first time on direct appeal in the
absence of a showing that an exception to the forfeiture doctrine
applies”]; accord, People v. Gomez (2026) 118 Cal.App.5th 384,
23
391 [“As several courts of appeal have now held, where a
defendant could have raised a Racial Justice Act claim below but
failed to do so, the claim is forfeited”]; People v. Wagstaff (2025)
111 Cal.App.5th 1207, 1219, rev. den.; People v. Singh (2024) 103
Cal.App.5th 76, 114, rev. den.) Jackson argues those cases were
wrongly decided. In the alternative, Jackson asks us to exercise
our discretion to consider the forfeited claims.
As we did in Lawson, “we decline to address the parties’
arguments concerning forfeiture, because assuming arguendo
defendant’s challenge is properly before us, we conclude it fails on
the merits, as we discuss post.” (Lawson, supra, 108 Cal.App.5th
at p. 1001.)
We conclude the record does not demonstrate an RJA
violation by a preponderance of the evidence. The record
contains no reference to Jackson’s race, ethnicity, or national
origin except in the police report, the probation report, and the
abstract of judgment, each of which documents contained only a
single demographic note that Jackson is Black. The police report
and probation report were not admitted into evidence at the
suppression hearing or at trial. The abstract of judgment did not
exist until after Jackson was convicted and sentenced. The
record contains no other reference to race, ethnicity, or national
origin except in a jury instruction prohibiting bias on those bases.
We conclude the record does not demonstrate, by a
preponderance of the evidence, that in conducting the traffic stop
of Jackson’s vehicle, the officers exhibited bias or animus towards
Jackson because of his race, ethnicity, or national origin. (§ 745,
subd. (a).) Officer Latona testified the officers conducted the stop
because Jackson’s vehicle had no front license plate, had dark
tinted windows, and had a rear license plate that Officer Latona
24
suspected was illegitimate. As noted, “ ‘the lack of a front license
plate has long been recognized as a legitimate basis for a traffic
stop.’ ” (Valle, supra, 105 Cal.App.5th at p. 202.)
Jackson’s assertion that the officers did not investigate any
of the suspected traffic violations is contradicted by Officer
Latona’s trial testimony that he determined, as Jackson himself
emphasizes, that the rear license plate (a temporary Georgia
license plate) was not, in fact, illegitimate. To the extent the
officers did not investigate the other suspected traffic violations
or cite Jackson for them, their failure to do so does not raise an
inference of racial bias on this record, especially given that the
officers found a concealed, loaded, unregistered firearm during
the lawful vehicle search on the scene. (Cf. People v. Esparza
(2023) 95 Cal.App.5th 1084, 1098, fn. 13 [officers could rationally
forego citing or warning defendant for tinted windows after
discovering, through lawful detention and search, evidence that
defendant was guilty of felonies].)
We further conclude Officer Latona did not use racially
discriminatory language about Jackson’s race, ethnicity, or
national origin, or otherwise exhibit bias against Jackson because
of his race, ethnicity, or national origin, when Latona explained
at trial that he ordered Jackson to exit the vehicle when Jackson
reached for a backpack because he knew “suspects” often
concealed firearms in backpacks. At the time Latona ordered
Jackson to exit the vehicle, Latona suspected Jackson of several
traffic violations, including the missing front license plate that,
as noted, supplied a lawful basis for the traffic stop. (Valle,
supra, 105 Cal.App.5th at p. 202.) Latona’s single reference to
Jackson as a suspect did not suggest that Latona suspected
25
Jackson of those violations (or more serious violations) because of
his race, ethnicity, or national origin.
Nor did Officer Latona exhibit bias against Jackson
because of his race, ethnicity, or national origin merely by
indicating that he (Latona) was concerned about the potential
presence of a firearm in the backpack during the traffic stop. The
United States Supreme Court “has recognized that traffic stops
are ‘especially fraught with danger to police officers.’ ” (Arizona
v. Johnson (2009) 555 U.S. 323, 330.) “[T]he risk of a violent
encounter in a traffic-stop setting ‘stems not from the ordinary
reaction of a motorist stopped for a [traffic] violation, but from
the fact that evidence of a more serious crime might be uncovered
during the stop.’ ” (Id. at pp. 331-332.)
Finally, although the record contains several references to
Jackson’s presence in a “high-crime area” at the time of the
traffic stop, no evidence in the record links either that specific
area or high-crime areas generally to Jackson’s race, ethnicity, or
national origin. Absent such evidence, we conclude those
references do not establish by a preponderance of the evidence
that a law enforcement officer, an attorney, or the trial judge
“exhibited bias or animus towards the defendant because of the
defendant’s race, ethnicity, or national origin” within the
meaning of section 745, subdivisions (a)(1) and (2). We further
conclude those references do not constitute “ ‘[r]acially
discriminatory language’ ” absent any evidence in the record that
an objective observer would perceive those references as
appealing to racial bias. (§ 745, subd. (h)(4).)
Jackson’s reliance on Finley v. Superior Court (2023) 95
Cal.App.5th 12 (Finley) is misplaced. In that case, the defendant
filed an RJA motion in the trial court and supported the motion
26
with an expert declaration opining that the officer who stopped
and searched the defendant’s vehicle demonstrated racial bias by
referring to the defendant’s presence in a “ ‘high-crime
neighborhood.’ ” (Id. at p. 18.) The trial court denied the motion
without holding an evidentiary hearing, concluding the defendant
failed to make a prima facie showing of an RJA violation. (Ibid.)
In explaining its ruling, the trial court referenced unspecified
evidence that the defendant was present in a “ ‘high-crime area,’ ”
implicitly relying on evidence that the defendant had not
proffered. (Id. at pp. 18, 24.)
The appellate court issued a writ of mandate directing the
trial court to hold a new prima facie hearing, concluding the trial
court “applied an incorrect standard of review at the prima facie
stage” because, among other reasons, the trial court relied on
evidence that the defendant had not proffered and did not
address the defense expert’s opinion. (Finley, supra, 95
Cal.App.5th at pp. 23-25.) “The [trial] court should have
reviewed the opinion to determine if it was conclusory,
speculative, or unsupported. [Citation.] If the court determined
the opinion passed this preliminary threshold, it was required to
accept the truth of the opinion at this [prima facie] stage and
consider it as part of [the defendant’s] prima facie case.” (Id. at p.
24; see also id. at p. 22 [“The prima facie threshold is . . . lower
than the preponderance of the evidence standard required to
establish an actual violation of the Racial Justice Act”].)
Here, in contrast, Jackson did not present expert opinion or
other evidence that any reference to his presence in a high-crime
area demonstrated racial bias. Moreover, because Jackson did
not make an RJA motion in the trial court, we independently
review the record to determine whether he has demonstrated, by
27
a preponderance of the evidence, an RJA violation (Lawson,
supra, 108 Cal.App.5th at p. 999)—not whether he has merely
made a prima facie showing of such a violation. For the reasons
we have explained, we conclude he has not demonstrated an RJA
violation by a preponderance of the evidence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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