Filed 9/1/26 P. v. Nelson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C102842
Plaintiff and Respondent,
(Super. Ct. No. 24FE004035)
v.
CARL NELSON,
Defendant and Appellant.
A jury found defendant Carl Nelson guilty of committing forcible and non-forcible
lewd acts on his daughter and forcing his adult cousin to orally copulate him. Defendant
contends the prosecutor violated the Racial Justice Act (Stats. 2020, ch. 317, § 3.5; RJA)
and defendant’s federal due process rights during closing argument by describing
defendant as an apex predator who preyed upon two family members. Because defendant
has not established that the prosecutor’s description, considered in context, dehumanized
defendant or objectively appealed to racial bias, we affirm. Undesignated statutory
references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with seven counts of sexually molesting his daughter by
force when she was 6 to 11 years old (§ 288, subd. (b)(1)) and one count of forcing his
younger, 27-year-old cousin to orally copulate him (§ 287, subd. (c)(2)(A)).
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Daughter testified that defendant rubbed her vagina under her clothes when she
was six years old. When defendant started touching her, daughter slid under the bed to
get away. She felt trapped, and he grabbed her arm to get her from under the bed. When
daughter was eight or nine years old, defendant called her to the bedroom, rubbed her
vagina over her clothes in a circular motion, and pinned her arms down over her head
when she tried to move around. She did not feel like she could get away from him. The
“same stuff” happened on other occasions. Defendant told her not to tell anybody. When
daughter was living in Alameda County, “far away from Sacramento” where the events
occurred, and about to turn 12, daughter told her mom what happened. Daughter did not
tell her mom earlier because daughter thought she would be “in a lot of trouble … with
[defendant].” Defendant was also in custody at the time, so that made daughter feel more
comfortable.
In September 2017, cousin called the Sacramento County Sheriff’s Department
and reported that defendant: (1) made cousin perform sexual acts on defendant; and
(2) threatened to physically harm or kill cousin if cousin told anyone. When a police
officer followed up on cousin’s call, cousin told him “he was scared” and had left
Sacramento. The officer tried to contact cousin several times after that but never got
through.
In February 2024, cousin called a Sacramento County deputy sheriff and shared
what happened with defendant in 2017. Cousin and defendant had been drinking with
their girlfriends in Sacramento County. Cousin and defendant went to the store to get
something to smoke out of and then went behind an apartment building to smoke.
Defendant asked cousin if he had “ever messed with any of the other cousins” and told
cousin he had “heard from the streets that [cousin] got some good head.” Cousin replied,
“I don’t know where you heard that from,” and defendant said, “Well, we about to find
out.” Defendant then pointed a gun at cousin and told him to “come over and suck his
dick.” Cousin complied “for like 10 seconds” and then defendant started throwing up
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because he was drunk. Defendant told cousin he would kill him if he told anyone what
happened, “ ‘cause you live in Sacramento and you – and we’re – we’re family. And so,
I see you everywhere.” Cousin “was terrified at the beginning when he pulled the gun
out” and defendant’s threat made him “even more terrified ‘cause now [he] felt like [he]
couldn’t tell nobody or, you know, ask for help.” When cousin got home, he “started
packing [his] stuff, ‘cause … [he] was in shock and [he] was terrified. [He] was just
trying to get away from [defendant].” He told girlfriend what happened and asked her
not to say anything. The next day, cousin moved to Los Angeles and called the
Sacramento County Sheriff’s Department.
In June 2024, cousin wrote a sworn statement recanting his allegations against
defendant. He stated he was dropping his case and would not be a witness for the
prosecution. At trial, cousin took the witness stand but immediately stated he did not
want to testify. He also stated he did not recall anything, he was drunk on the night in
question, and he could not say he was forced to orally copulate defendant. He admitted
he left for Los Angeles after the copulation incident and did not return to Sacramento
until he heard that defendant was back in custody.
Cousin’s girlfriend testified she was also in the room when defendant asked
girlfriend’s aunt (whom defendant was dating) to give him money to get a gun. When
defendant asked aunt the third time, he “snatched [aunt] up by her hair and pulled her off
of her bed.” One day in September 2017, cousin came home to girlfriend “kind of
frantic.” He had “this weird look on his face,” gathered up all his stuff, made a phone
call, and left with their son. About two days later, cousin told girlfriend that defendant
“had pulled a gun on [cousin] and made [cousin] give [defendant] oral intercourse.”
Cousin was “upset,” “shaking”, and “crying” as he told the story. He told girlfriend he
didn’t want their son there because defendant “was a safety threat.” And he asked
girlfriend not to say anything for everybody’s general safety.
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In closing argument, the prosecutor played a recording of cousin’s February 2024
call with law enforcement. According to the prosecutor, cousin’s words described “the
fear, the terror, the shock of a sexual assault.” Cousin’s words also highlighted the fear
that “terrified him so much that he fled to another county before he was able to call law
enforcement, the fear that drove him to tell his baby-mama and plead with her not to tell
anybody else because he was worried for his son, and [the] fear that [the jury] saw linger
with him into the courtroom as he took the stand and had to talk about what happened to
him.” In the prosecution’s view, cousin changed his story because he was terrified of
defendant.
Turning to daughter, the prosecution recalled her delay in reporting until she was
in another county: “She was far away from Sacramento and she felt a little bit more safe,
a little more comforted that he was in custody and couldn’t get to her.” The prosecution
explained that “this is what defendant does. He not only sexual assaults members of his
own family, he threatens them and intimidates them and terrifies them into not talking
and not telling anybody.”
At the end of his closing, the prosecution described defendant as follows:
“[Defendant] is like an apex predator in this family and he’s preyed upon not just one but
two different members of his own family, and in doing so, he terrified them and
intimidated them so that each of them only disclosed when they were far away from him
and when they left the county.”
The jury found defendant guilty of: (1) the forcible oral copulation count under
section 287, subdivision (c)(2)(A); (2) three forcible lewd act counts under section 288,
subdivision (b)(1); and (3) four lesser included, non-forcible lewd act counts under
section 288, subdivision (a).
Defense counsel filed a motion for new trial. Among other things, she argued the
prosecutor committed prosecutorial misconduct when he used the term “apex predator.”
In her view, this term has “strong racial implications, especially since [defendant] is a[n]
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African-American male.” She did not object during closing argument because she did
not hear the prosecutor use this term. In any event, no objection was needed, she argued,
because the misconduct was so egregious that an instruction would not have cured the
harm.
The prosecution countered that the term “was used in the context of indicating that
[defendant] occupied a position of power, domination and intimidation within the
hierarchy of his family, and in sexually assaulting the younger members of his family,
particularly his daughter, his younger cousin, he used that power and domination to not
only commit the assaults but also to keep them silent.” The prosecution insisted “there
was no type of racial connotation or racial suggestive context that was being presented to
the jury.”
The court credited defense counsel’s representation that she did not hear the
prosecution use the term, noting that defense counsel was engaged in discussions with her
client throughout the trial, including during closing arguments. According to the court,
“there was a lot of pressure placed on the witnesses that testified against [defendant].”
And the prosecutor’s comment “concerned the fact that [defendant] is a very dominant
member of his family” and there was “an enormous amount of pressure placed on the
victims in this case … to retract, to minimize, to recant what they had said.” The court
found no RJA violation but advised the prosecution to not use the term in the future.
Defendant timely appeals. After this case was fully briefed, the California
Supreme Court decided People v. Bankston (2026) 19 Cal.5th 786 (Bankston), People v.
Demolle (2026) 19 Cal.5th 1117 (Demolle), and People v. Chhuon and Pan (2026)
19 Cal.5th 1018 (Chhuon and Pan). We requested and received supplemental briefing on
questions raised by those cases.
DISCUSSION
Defendant contends the prosecution violated the RJA and defendant’s due process
rights by referring to defendant as an “apex predator” who “preyed upon” his victims.
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The People contend defendant forfeited this claim because he failed to object when the
reference was made. We exercise our discretion to consider defendant’s contention on
the merits. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
The RJA was enacted in 2020 to eliminate “racial bias from California’s criminal
justice system” and ensure that “race plays no role at all in seeking or obtaining
convictions or in sentencing.” (Stats. 2020, ch. 317, § 2, subd. (i).) A violation of the
RJA is established if an attorney in the case “used racially discriminatory language about
the defendant’s race, ethnicity, or national origin.” (§ 745, subd. (a)(2).) The term
“racially discriminatory language” is defined to mean “language that, to an objective
observer, explicitly or implicitly appeals to racial bias, including, but not limited to, …
language that compares the defendant to an animal.” (§ 745, subd. (h)(3) (italics
added).)
Defendant contends the prosecutor’s reference to defendant as an “apex predator”
who “preyed upon” daughter and cousin violated the RJA because the reference directly
compared defendant to an animal inherently predisposed to commit acts of violence.
Viewing the term in context, we disagree that the prosecutor made such a comparison.
The term “predator” includes human and non-human species and behaviors. (See
Chhuon and Pan, supra, 19 Cal.5th at p. 1104.) Contrary to defendant’s view, the same
is true of the term “apex predator,” which means a “predator at the top of a food chain
that is not preyed upon by any other animal.” (See Merriam-Webster Dict. Online (2026)
This can refer to both human species and non-human species and their behaviors. Here,
the prosecution did not evoke the image of a non-human apex predator species. In the
context of this sexual abuse case in which the prosecution sought convictions for forcible
acts, the prosecution’s description referred to the sexually predatory acts of a human.
(See Chhuon and Pan, supra, 19 Cal.5th at p. 1104 [prosecutor’s use of word “predator”
was used in a fashion similar to its use in California law governing sexually violent
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predators].) The description of defendant as the top predator of his family who terrorized
and intimidated family members also reminded the jury of the evidence in this case,
specifically: (1) the terror cousin felt when defendant held a gun to his head and
threatened his life if he told anyone; (2) girlfriend’s testimony that cousin was shaking
and told her not to tell anyone; (3) girlfriend’s testimony that defendant attacked
girlfriend’s aunt, whom defendant was dating, to get money to buy a gun; (4) daughter’s
testimony that defendant grabbed her when she tried to get away, pinned down her arms,
and told her not to tell anyone; (5) and daughter’s testimony that she was afraid to tell
anyone until she was physically distanced from defendant. Throughout his closing
argument, the prosecutor consistently described defendant as someone who terrified and
intimidated family members into compliance and silence. That description evoked
human, not animal, qualities. (See Chhuon and Pan, supra, 19 Cal.5th at p. 1103 [the
prosecutor’s references to “hunting” did not compare the defendants to animals but
described the manner in which they shot at the victims].)
In addition, the California Supreme Court has made clear that animal comparisons
are not categorically prohibited. (Bankston, supra, 19 Cal.5th at p. 866. “The RJA is
most naturally understood to prohibit those uses of animal imagery that are objectively
understood as appealing to racial bias.” (Ibid.) So even if a term is used in a way that
dehumanizes a defendant, the defendant must establish that the use constitutes an explicit
or implicit appeal to racial bias from an objective observer’s perspective. (Demolle,
supra, 19 Cal.5th at pp. 1197-1198; Bankston, at p. 852.) This can be done by
demonstrating how the term is “ ‘historically associated with racism’ ” or offering
evidence to suggest that the term “singly or in combination with other descriptions, is
‘used exclusively or disproportionately in cases where the defendant is of a specific race,
ethnicity, or national origin.’ ” (Demolle, p. 1200.)
Defendant has not met this burden. He asks us to take judicial notice of the
following items, arguing they show the requisite appeal of the term “apex predator” to
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racial bias: (1) a page from a law review article about the characterization of Blacks
during slavery and the Jim Crow era as property, childlike, and inferior beings; (2) three
pages from the same article about Blacks being portrayed in popular culture as bucks,
apes, and monkeys; (3) four pages from the same article about how super-humanization
dehumanizes Black males; (4) a video posted on President Trump’s social media account
depicting former President Obama and his wife as apes; and (5) a dissenting statement by
Justice Evans concerning the deeply racialized term “young buck” and its well-known
“troubling connotations” (People v. Wagstaff (Oct. 15, 2025, S292031) 2025 Cal. LEXIS
6603). We take judicial notice of these items. (Evid. Code, § 452, subds. (c) & (g).) But
these items do not establish the requisite objective appeal to racial bias here. The
prosecutor did not suggest defendant was property, childlike, or inferior, and did not
compare him to a buck, ape, or monkey. And we are not persuaded that the term “apex
predator” would make a reasonable person think of the word “ape” simply because those
are the first three letters of “apex,” as defendant suggests. As covered, dehumanization
does not categorically appeal to racial bias, and we disagree that the prosecutor’s
description dehumanized defendant.
Defendant also refers to “the now-debunked ‘superpredator’ ” myth that Justice
Evans described in a dissenting opinion. (People v. Hardin (2024) 15 Cal.5th 834, 903-
906 (dis. opn. of Evans, J.).) Defendant makes a single parenthetical reference to this
myth in his opening brief and his request for judicial notice. He does not explain the
myth or how the prosecution’s description of defendant would be objectively understood
as appealing to it. In his supplemental briefing, he contends the term “apex predator” is
synonymous with the term “superpredator,” but the critical piece is whether these terms
as used in context evoke the superpredator myth. The superpredator myth focused on
Black youth and portrayed them as animals prowling the streets. (Hardin, at pp. 903-904
(dis. opn. of Evans, J.).) Defendant does not explain how the prosecution’s description of
defendant as the apex predator of his family who molested and then bullied his younger,
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27-year-old cousin and his daughter into silence would be objectively understood as
appealing to the “superpredator myth.” Because defendant has not developed this critical
connection, defendant has not met his burden to show an RJA violation.
In sum, although the term “predator” and its variations, like apex predator,
superpredator, and hyperpredator, can be employed in a manner that leads to an RJA
violation (see Demolle, supra, 19 Cal.5th at p. 1199), defendant has not shown that the
prosecution’s particular use of apex predator here dehumanized defendant or constituted
an objective appeal to racial bias. Because we reach this conclusion, we reject
defendant’s derivative arguments that (1) the prosecutor’s language violated defendant’s
due process rights and (2) the trial court erred by denying his motion for new trial.
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DISPOSITION
The judgment is affirmed.
/s/
MESIWALA, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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