California Court of Appeal Mar 10, 2025 No. E084614Unpublished
Filed 3/10/25 P. v. Swan CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084614
v. (Super.Ct.No. RIF1803776)
MARCUS ANTHONY SWAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jennifer R. Gerard,
Judge. Affirmed.
Marcus Anthony Swan, in pro. per.; and James M. Kehoe, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
I.
INTRODUCTION
Defendant and appellant Marcus Anthony Swan appeals from a postjudgment
order denying his motion for relief due to discrimination pursuant to Penal Code
section 745, subdivision (a) (the Racial Justice Act) and motion for recall of his sentence
under Assembly Bill No. 600 (2023-2024 Reg. Sess.) (Stats. 2023, ch. 446). Appointed
counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th
216 (Delgadillo), requesting this court to conduct an independent review of the record.
In addition, defendant has had an opportunity to file a supplemental brief with this court
and has done so. We have considered defendant’s arguments and affirm the trial court’s
potsjudgment order. (Delgadillo, supra, 14 Cal.5th at pp. 231-232.)
II.
FACTUAL AND PROCEDURAL BACKGROUND1
For years, beginning when she was six or seven years old, defendant sexually
molested and assaulted his stepdaughter, Jane Doe (Jane). When Jane was 16 years old,
she became pregnant and gave birth to a boy. (Swan I, supra, E071972.)
1 A summary of the factual background and part of the procedural background is taken from defendant’s direct appeal following his convictions from case No. E071972. (People v. Swan (Sept. 15, 2020, E071972) [nonpub. opn.] (Swan I).)
2
By amended information, defendant was charged with one count of forcible lewd
acts on a child under 14 years (Pen. Code,2 § 288, subd. (b)(1), count 1), and three3
On December 6, 2018, a jury convicted defendant of forcible lewd acts on a child
and three counts of forcible rape. The jury also found true the allegation that each of the
rape charges involved a minor 14 years or older (§ 264, subd. (c)(2)) and that one of the
rape charges involved great bodily injury (§ 667.61, subd. (l)). (Swan I, supra,
E071972.)
On January 7, 2019, the trial court sentenced defendant to life without the
possibility of parole, plus 30 years in state prison. (Swan I, supra, E071972.)
Defendant’s convictions and sentence were affirmed on direct appeal. (Swan I, supra,
E071972.)
On July 26, 2024, defendant in propria persona filed a motion for relief due to
discrimination pursuant to section 745, subdivision (a) (the Racial Justice Act).
Defendant checked the box stating: “PC 745(a)(1) The judge, an attorney in the case, a
law enforcement officer involved in the case, an expert witness, or juror exhibited
biaASs [sic] or animus towards the defendant because of the defendant’s race, ethnicity,
2 All future statutory references are to the Penal Code.
3 The amended information contained a total of four counts of rape; however, two of the counts (counts 4 & 5) related to a single incident that resulted in Jane’s pregnancy. They were charged as alternative counts because it was unclear whether she conceived in San Bernardino County (count 4) or Riverside County (count 5). (Swan I, supra, E071972.)
3
or national origin.” He also checked the box noting: “PC 745(a)(4)(B) A longer or more
severe sentence was imposed on the defendant than was imposed on other similarly
situated individuals convicted of the same offense, and longer or more severe sentences
were more frequently imposed for the same offense on defendants in cases with victims
of one race, ethnicity, or national origin than in cases with victims of other races,
ethnicities, or national origins, in the county where the sentence was imposed.”
Defendant requested discovery of all testimony of Dr. Jody Ward, a clinical psychologist,
who testified about the Child Sexual Abuse Accommodation Syndrome (CSAAS), along
with all prosecution evidence and evidence related to the violation of the Racial Justice
Act. Defendant argued that he was entitled for resentencing pursuant to Assembly Bill
No. 600, which amended section 1172.1.
On August 8, 2024, the trial court summarily denied the motion/petition for relief
pursuant to section 745, subdivision (a), because it failed to state a prima facie factual
case supporting the petitioner’s release. In a written order, the court also denied
defendant’s motion for discovery and for recall of sentence and resentencing. In
section 745 to allow a defendant to seek review of a Racial Justice Act claim on direct
appeal from the conviction or sentence if the violation is based on the trial record.
(§ 745, subd. (b); Wilson, supra, at p. 947.)
Here, the time to directly appeal defendant’s 2019 sentence has long since passed.
The present appeal does not involve either a petition for writ of habeas corpus or a
section 1473.7 motion. Defendant did not assert a claim of racial bias during the
proceedings below or state a prima facie case for relief; and his supplemental brief in this
court contains no factual or legal analysis to support his challenge.
IV.
DISPOSITION
The trial court’s postjudgment order denying defendant’s section 745 motion for
relief due to discrimination is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.
9
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's motion for relief under the Racial Justice Act and Assembly Bill No. 600, finding the defendant failed to state a prima facie case for relief and that his claims of trial error were not cognizable in this postjudgment proceeding.
Issues
Did the trial court err in denying the defendant's motion for relief under Penal Code section 745?
Are claims of trial error cognizable in a postjudgment motion for relief under the Racial Justice Act?
Did the defendant establish a prima facie case of racial bias or animus under the Racial Justice Act?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court’s postjudgment order denying defendant’s section 745 motion for relief due to discrimination is affirmed.”
“Defendant has failed to make a prima facie showing.”
“Section 745 is not a vehicle for establishing trial error.”