People v. Nelson

Sep 1, 2026
C102842

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)).

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 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.

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] 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. 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) <https://www.merriam-webster.com/dictionary/apex%20predator> [as of July 9, 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 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, supra, 19 Cal.5th 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, supra, 19 Cal.5th at 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 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, 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.

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.