AB 256 Racial Justice Act: Grounds, Petition, and Remedies

If you were convicted of a felony in California or committed to the Division of Juvenile Justice, you can now file a California Racial Justice Act retroactive petition asking a court to vacate the conviction, the sentence, or both if racial bias affected your case. Assembly Bill 256 opened this door in phases starting in 2023, and as of January 1, 2026 the final phase is open to anyone with a qualifying felony conviction or juvenile DJJ commitment, no matter how old.¹ The claim is filed under Penal Code Section 745, and you must prove the violation by a preponderance of the evidence, meaning more likely than not.²

Who Can File a Retroactive Petition

AB 256 phased in eligibility to spread out the volume of filings. Each date opened access to a new group:¹

January 1, 2023: people sentenced to death and people facing immigration consequences such as deportation.
January 1, 2024: people currently in state prison, serving a felony sentence in county jail, or committed to the Division of Juvenile Justice.
January 1, 2025: people no longer incarcerated whose felony conviction or juvenile DJJ commitment became final on or after January 1, 2015.
January 1, 2026: anyone with a felony conviction or juvenile DJJ commitment, regardless of when it became final.

Misdemeanors are not covered by the retroactive filing windows. The statute limits AB 256’s retroactive reach to felony convictions and juvenile dispositions resulting in commitment to the Division of Juvenile Justice.³ The broader Section 745 prohibition still applies to any criminal case going forward, but that is separate from the retroactive petition process.

The Four Grounds for a Claim

Section 745 lists four types of racial bias that can invalidate a conviction or sentence.²

Bias or animus by a judge, attorney, law enforcement officer, expert witness, or juror against the defendant because of race, ethnicity, or national origin.
Racially discriminatory language used by any of those same participants about the defendant during trial, whether or not the speaker intended it that way. Someone quoting language relevant to the case or giving a neutral physical description of a suspect does not count.
Harsher charges than people of other races received for essentially the same conduct, backed by county-level data showing the prosecution consistently pursued harsher charges against people of the defendant’s race.
A longer or more severe sentence than similarly situated people of other races convicted of the same offense, or a pattern tied to the race of the victim, backed by county-level data from where the conviction was obtained.

The third and fourth grounds require statistical evidence, which most petitioners cannot pull together without help. Courts are still working out what counts as a significant disparity, and the statute gives limited guidance on methodology.²

Getting an Attorney Appointed

You have the right to ask the court to appoint a lawyer if you cannot afford one. Under Penal Code Section 1473(f), the court must appoint counsel if you cannot afford an attorney and either your petition alleges facts that would establish a Section 745 violation, or the State Public Defender requests appointment.¹ The petition needs to specifically request appointment of counsel.

The threshold to get a lawyer is lower than the threshold to win. A 2025 appellate decision held that the showing needed for appointment is less demanding than the showing needed to prove the underlying claim, so you do not have to build your whole case just to get help. Once appointed, your attorney can amend the petition you already filed, so an imperfect initial filing does not lock you in.⁴

Building the Evidence

What you attach to the petition depends on which grounds you are claiming.

Transcripts and Reports

For claims about biased language or conduct at trial, transcripts are the core document. They show what the judge, attorneys, and witnesses actually said. Request copies from the court clerk in the county where your case was handled. Police reports and investigative files can matter when the bias claim reaches back into the investigation. Certified transcripts can cost several dollars a page; appointed counsel can often obtain records on your behalf or at reduced cost.

Statistical Records

The charging and sentencing grounds need county-level data. You can request records from the district attorney or law enforcement through the California Public Records Act. The Department of Justice accepts online requests and must respond within 10 days, with a possible 14-day extension.⁵ Records held by local agencies go through those agencies directly. Some material may come back redacted under exemptions for personnel files, ongoing investigations, or privileged communications; agencies typically release the rest.

Discovery After You File

You do not need every document in hand before filing. Penal Code 745(d) lets you ask the court to order the prosecution to turn over evidence relevant to your claim. You describe the type of records you want, and the court orders disclosure on a showing of good cause.² A 2025 appellate ruling described this standard as broad and flexible, and held that statistical evidence alone can satisfy it.⁴

Filing the Petition

The petition takes one of two forms. If you are in custody, file a petition for a writ of habeas corpus under Penal Code Section 1473(f). If you are not in custody, file a motion to vacate under Penal Code Section 1473.7. Either goes to the superior court where your case was originally handled.⁶ California habeas petitions carry a $5 filing fee, and you can ask to proceed without paying if you are indigent.

The court then reviews the petition to decide whether you have made a prima facie showing, meaning the facts you allege, taken as true, would entitle you to relief. Your factual claims are accepted at face value at this stage.⁶ If the court finds you did not clear that bar, it must explain why in writing or on the record.

If the petition passes screening, the court issues an order to show cause requiring the prosecution to respond. An evidentiary hearing follows unless the prosecution declines to contest the claim. You may appear remotely, and the court can conduct proceedings using remote technology unless your attorney says your physical presence is necessary.¹

Two procedural points matter here. If you already have a habeas petition pending, you can amend it to add an RJA claim rather than filing a new one. And a first-time RJA claim, or one based on newly discovered evidence, will not be treated as an abusive or successive petition, which is a barrier that often blocks habeas filings in other contexts.

What the Court Can Order If You Win

Remedies depend on what the court finds was tainted.²

Conviction obtained in violation: the court vacates the conviction and sentence, declares both legally invalid, and orders new proceedings. If the only problem was that you were charged more harshly than similarly situated defendants of other races, and the court can fix that by adjusting the judgment, it may modify the conviction to a lesser offense instead of ordering a full retrial.
Sentence only: the court vacates the sentence, declares it invalid, and imposes a new one. The new sentence cannot exceed the original.
Death penalty cases: any proven violation of the act makes the defendant permanently ineligible for the death penalty, no matter which of the four grounds was established.

On any resentencing, the cap is firm: the court cannot impose a sentence harsher than the one you originally received. Outright dismissal of charges is not on the menu. A 2025 appellate ruling held that the statute’s listed remedies are the outer limit of what a court can do under the RJA.⁴

Immigration Consequences

People facing immigration consequences were the first group given retroactive access in 2023 because a criminal conviction can trigger deportation or block relief, and vacating the conviction can change the immigration outcome. Whether federal immigration authorities honor a state vacatur depends on the reason for it. The Board of Immigration Appeals generally recognizes vacaturs based on a substantive or procedural defect in the original case, such as ineffective counsel or a constitutional violation, and does not recognize vacaturs granted purely for rehabilitative reasons or to avoid deportation. A vacatur granted because racial discrimination tainted the proceedings should fall on the substantive-defect side, since the RJA finding is that the conviction was obtained in violation of state law. Practitioners note that the state court’s order needs to spell out the legal defect clearly; a vague or conclusory vacatur may not carry weight in immigration court.

Watch-Outs and Pending Changes

If you are thinking about raising an RJA issue for the first time on direct appeal instead of through a habeas petition, be careful. Multiple appellate courts have applied the forfeiture rule, holding that a defendant who did not object to racial bias at the original trial may be barred from raising the claim for the first time on appeal. Habeas is a separate track and is not affected by that rule.

The law is still moving. In February 2025, Assemblymember Kalra introduced AB 1071, which would eliminate the motion to vacate in favor of a new post-conviction petition process and expand the right to appointed counsel. That bill is still working through the legislature.⁴ One unsettled question in the courts is whether statistical evidence alone, without case-specific facts about the individual defendant, is enough to clear the initial screening and trigger an evidentiary hearing.

1
Office of the State Public Defender. Racial Justice Act Retroactivity
2
California Legislative Information. California Penal Code PEN 745
3
California Legislative Information. California Code AB-256 Criminal Procedure Discrimination
4
California Law Revision Commission. Staff Memorandum 2025-08
5
State of California Department of Justice. Public Records
6
Judicial Branch of California. Rule 4.551 Habeas Corpus Proceedings